Item N2
GROWIH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
November 18,2002
Vacation Rentals
Neumont (Federal Class Action) -. Federal class action case alleging vacationrel1tal ordinance was
prematurely enforced and is an lLnCOIJstitlltional taking of Plaintiffs' properties. Awaitingmling on
whether the Judge will adopt the Magistrate's recommendation to dismiss all claims under
jurisdictional doctrines of abstention and ripeness. If all claims are dismissed, Plaintiffs may appeal
to the 11th Circuit federal court or may attempt to file a new cause of action in state court. The Court
has indicated that an order is forthcoming. ($53,481.25 as of October 31, 2002).
Takin2s Claims
New Port Largo - State "physical occllpation" takings claim that had been remanded back to state
court when federal claims were dismissed. Cross-motions for S tUTIntary Judgment were heard June
6. The Court has vacated its prIor order which had granted partial summary judgment in favor of
Monroe County, holding that any physical taking may only have occurred within a two-month
period. A waiting Court's issuance of pre-trial order establishing discovery deadlines and setting trial
date. ($21,214.50 as of October 31,2002).
Shadek - Takings claim for ~570 acres of North Key Largo property based on the 1980's Major
Development Moratoriwu. Trial was held February 21,22 and March 13. Judge Garcia TIlled in
favor of Plaintiffs on all takings claims, declaring Monroe County liable for denying Plaintiffs all
economic use of their property for an eight-year period. Jury trial on damages is scheduled for
January, 2003. Mediation as to damages will be held December 10, 2002. ($165,349-74 as of
October 31,2002).
" Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe in which
Plaintiffs claim they were denied building permits for new construction. Plaintiffs havc filed suit
against Islamorada and Monroe County since pennitting requests began prior to incorporation.
Plaintiff filed an application for a bui I ding permit with Monroe Cmmtyprior to Village incorporation
and eventually received a permit from lslarnorada subsequent to incorporation. Monroe County's
motion for summary judgment was denied based 011 existence of disputed material facts_ Trial is set
for February 23,2003. ($16,341.50 as of October 31,2002).
0~
Galleon Bay - Petition for Certiorari review ofBOCC's decision to deny vested rights application.
Case has been re-assigned to lower keys division. Plaintiffs have also filed a separate action for
inverse condemnation. Judge Payne previously granted the County's motion to dismiss with
prejudice because Plaintiffs Clm pursue commercial fishing use of property. That order was vacated
on Plaintiffs' motion for fe-hearing and Plaintiffs have filed their second amended complaint and the
County's motion to dismiss has been filed.
Judge Payne also entered final judgment in favor of Plaintiffs as to their vested rights appeal.
(Special Master had recommended granting application; BOCC rejected recommendation and issued
Resolution denying vested rights. Plaintiffs appealed to circuit court and BOCC's resolution was
reversed). Monroe C01.mty further appealed by filing a Petition for Certiorari with Third District
Court of Appeals. Third District accepted jurisdiction and Plaintiff has requested an extension to
fie their response in approximately 60 days. ($16,325.00 as of October 31,2002) (does not: include
prior Galleon Bay matiers).
Phelps/Hardin - Claim brought in federal court for duc process and inverse condemnation based on
code enforcement proceedings that resulted in a lien on Plaintiffs' property. Monroe County's
motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders was
denied. Monroe County's answer has been filed. Parties are to complete discovery by March 3,
2003. ($1,589.00 as of October 31,2002).
Gustinger - Case stems from code enforcement prosecution and order imposing lien. Building
permits were subsequently issued by Village of Islam.orada. Monroe County filed suit to collect
monies due under lien. Property owner counter-claimed for declaratory relief and inverse
condemnation based on code enforcement proceedings. Pla.intiffwas found in violation ofvarious
code provision for failure to reconstmct or demolish a non-conforming stntcture damaged b y
hunicane. Monroe County's motion for summary judgment was granted, allowing the Cmmty to
foreclose on the property for the $76,000 in accrued code enforcement penalties. Case is being
remanded back to County Attorney's Office to proceed with foreclosure proceeding, as granted by
slU11mary judgment order. ($10,930.50 as of October 31,2002).
Pontin - Case alleging temporary and permanent taking of property due to allegedly conflicting
regulations of COlU1ty and ACOEIDEP wherein each required the other's prior approval before
issuing permits to fill land & plant trees.. Monroe County has :filed a motion to dismiss based on
statute oflimitations because Plaintiff was first made aware of the conflicting regulations in 1984
and has also failed to exhaust administrative remedies. Claims were previously filed and dismissed
in 1985 for failure to seek administrative remedies. Defendant Anny Corps ofEngiueers motion to
dismiss was granted. Case has been remanded to state court. ($3,390.00 as of October 31, 2002).
Good - Seeking declaratory relief and takings claim for..., 16 acte Sugarloaf Shores property due to
commerci al moratorium which began January 4, 1996. Monroe County is preparing to file motion
for swnmary judgment. ($5,325.00 as of October 31,2002).
2
Industrial Communications & Electronics - Federal district court case alleging denial of due
process, equal protection and inverse condemnation based on prior wireless tower moratoria.
Monroe COllI1ty has filed motion to dismiss based On res judicata/collateral estoppel (issne & claim
barred by prior court ruling). PlaintiffpTeviously and lUlsuccessfully challenged moratorium while in
effect and should be barred from re-litigating those issues. Monroe County's motion to dismiss was
granted by the Court, dismissing all claims as barred by the prior state court action. Plaintiff s
deadline to appeal was October 14. No notice of appeal was filed and case will now be closed.
($7,830.00 as of October 31,2002).
Si2ns & Billboards
Repu b lie M ed.ia/Outdoor Systems - Declaratory action claim fi led by billboard owners challenging
applicability of Post-Hurricane Emergency Permitting Policy and the billboard valuation schedule
pursuant to code regulations prohibiting repair of non-conforming billboards damaged beyond 50%
of their value. No pending motions. A proposed settlement has been reached through mediation for
BOCC's consideration. Settlement agreement is on today's agenda for BOCC consideration.
($19,277.50 as of October 31, 2002).
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and S 1983 claims
challenging Monroe County's policy that installing commercial electric service to No Name Key is
prohibited by the 2010 comprehensive plan. Proposed settlement agreement was denied by BOCC;
case will proceed in litigation. Property owners opposing electrification were granted leave to
intervene. Court gra.nted MOnToe County's motion for summary judgment. Plaintiffs have filed a
Notice of Appeal to the Third District and have moved for an extension of time to file their initial
brief. ($14,337.00 as of October 31, 2002).
Clay (Big Pine Moratorium) - Complaint filed against Monroe County alleging various claims
(takings, vested rights, etc.) based on the de facto building moratorium on Big Pine due to the traffic
level of service and concurrency mandate. Judgment was entered in favor of Monroe COlmty on
basis that concurrency is a state-imposed mandate, not a COlUlty regulation; also based on fact that
FDOT is responsible for upgrading U. S. 1, not Monroe County and issuance of any building permits
by Monroe Cow1tymayviola.te state concurrency and Endangered Species Act provisions. Plaintiffs
have appealed to 3Td District Court of Appeals. Oral argument was held June 13. Parties are
awaiting mling from 3rd DCA as to whether case has been rendered moot by recent BOCC-approval
of beneficial use determinations allowing issuance of permits. ($16,019.00 as of October 31, 2002).
Ambrose - Declaratory action claiming vested rights \.fider 9380.05(18) based on filing of
subdivision plats. Pursuant to summary judgment proceedings and his previous orders, Judge Payne
ordered that Plaintiffs prove ownership of a single Plaintiffs' lot so that legal issues may be appealed
rather than spend extensive time in trial court litigating ownership issues as to each lot at issue.
V mious environmental groups were also granted leave to intervene. Court entered final summary
judgment for approximately 75 Plaintiffs. Final Order has been entered by Court and all Defendants
have filed notices of appeal. Defendants have filed their joint initial brief for the Third DCA appeal
3
and the trial court has stayed all further proceedings until completion of appeal. Plaintiffs recently
filed their Answer BrieffCross-Appeal and Defendants are coordinating a Joint Reply Brief to be
filed by December 12, 2002. ($49,028.75 as of October 31, 2002).
Upper Keys Citizens Association - Two separate cases: (1) Appeal to Div. of Admin. Hearings of
Planning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Op.
County's brief has been submitted. Oral argument before Third DCA was held June 18 on
Petitioner's appeal of the circuit court dismissal of certiorari action. Third DCA has entered its order
affIrming the trial court's dismissal of the certiorari action. Petitioners' DOAH proceeding will now
resume and parties are discussing settlement options. Monroe County has filed its responsive brief.
($10,162.50 as of October 31, 2002)."
New Matters
Lawson - New matter appealing resolution of the Monroe County Planning Commission. No Initial
Briefhas been filed and Appellant has requested extension oftime to file.
Johnson - New matter seeking Writ of Mandamus challenging Director of Planning's detennination
that application for "boundary detennination" by alleged error requires zoning map amendment
application. Applicant applied for boundary determination based on allegation that BOCC
previously adopting change in zoning. Director's determination was based on review of records
[ailing to show any error or prior consideration of sllch zoning change. Director rejected application
and informed Owner to properly file for zoning map amendment. (BoWldary detennjnation may be
placed on BOCC agenda without the public notice required far a zoning change).
Emmert - Kew matter seeking inverse condemnation based on partial granting afBeneficial Use
application. Plaintiffs were granted partial beneficial use from wetland regulations, thus expanding
the buildable area of their vacant Ocean Reeflot from approximately 1,800 to 2,500 square feet.
However, Plaintiffs cannot build within this area due to Ocean Reef Association decd restrictions
requiring setbacks in excess of those required by Monroe County. Plaintiffs allege that Monroe
County's actions have Tesnlted in a denial of all economic use of their property, despite expressly
allowing a 2,500 square foot buildable area. As previously held by the Hearing Officer, Monroe
County is not liable for restrictions imposed by private deed restrictions.
4
Hugh J" Morgan
James T.
Hendrick
Karen K.
Cabanas
Jedde V. Regante
LAW OFFICES
MORGAN & HENDRICK
317 Whitehead Street
Key West, Florida 33040
W" Curry Harris
(1907 -1988)
Hilary U. Albury
(1920 -1999)
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER NORA WILLIAMS
COMMISSIONER MURRAY NELSON
TIM MCGARRY
CLERK'S OFFXCE, BELLE DESANTIS
FAX #: 292-4544~
292.3577~ ../;'
872-9190'
292-346&1" /
(305) 289-6306/"/'
(305) 852-716V//
(305) 289-2536"
295-3663
FROM: KAREN CABANAS, ESQ.
DATE: NOVEMBER 18, 2002
SUBJECT: GROWTH MANAGEMENT REpORT
TRANSMITTER: JONI
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