Item F2
LAW OFFICES
.'3 I 7 WHITEHEAD STAI!:ET
KEY W~ST, FLORIDA 33040
W. CU~R" HARRIS
(]g07 -1988)
HIlARY U. ALBURY
( I QZO . I ggg)
HUGH J. MORC;;AN
..JAMES T. HENDRICK
KAR"'''' K. CA8ANAS
JEDDE V. R.,.C;;ANTl!:
MORGAN & HENDRICK
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR FREEMAN
COMMISSIONER HARVEY
COMMISSIONER NEUGENT
COMMISSIONER. REICH
COMMISSIONER WILLIAMS
TIM MCGARRY
CLERK'S OFfICE, BELLE DESANTIS
FAX #: 192-4544'~
291-J46~ ~/
871.919Y
305-852-7162
292-357V ./
305-289-6J06~ ~
(305) 289-253"'"
295-3615
FROM: KARENCAJl.UIAS,EsQ.
DATE: 8/14/00
SUBJECT: GROWTH MANAGEMENT REpORT
TRANSMITTER: JON'
Total number of pages including this cover sheet: Y.5
ORIGINAL DOCUMENT(S):
_x_ Wll..L NOT BE SENT
REGULAR
WILL BE SENT
OVERNIGHT
COMMENTS:
Tht infotmation cOnWned in !hi, c..csimile ~'~agc is attorney privileged and ~dential. ~d only for !he u.c orthe iadividual or cnUty aamed
abo"C. If the reMerofthi.unellUS" i. nol tbcr int.cIIllod recipjqn, )'OIl arc hereby notified thiat my dissemiIlation, dialribution or eopyoflbisc_Utticllion
is Melly JVoI1ibill:d. If)'OU b&... rtceivod 11\ill COII1IZI1mi<:auOIl in error. pw.e ilnlJlCdia1cty notify UI by t.l~hon. .\lid ,cum me origiDaJ meuaF l.o ~~ ,,{
the above ~ddrcM VI^ the u. S. PlltIW s.vict. ltyou do not receive all pallCII, plc.se c;\)] back'" JOOIt all polUiblc 30S-296.S676. The fonawincilwr1i1x
IIVmbtr 305-1!16-U31. .
fl',O, Box I I 17, l<f:yW&ST. f'L .3304 I ~ 1!.lEPHOWE 305 c:gB-S676 $ f"AClllMll.' .:)05 2ge-4.3.31
F2-
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GROWTH MANAGEMENT LmGATION REPORT
TO
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K Cabanas
DATE:
August 16-17,2000
Vacation Rentals
Neumont (Class Action) - District Court denied motion to dismiss; hearing was held July 19lh
on plaintiffs' motion for class certification; Plaintiffs have also filed motion for partial summary
judgment on premature enforcement claim; Monroe County has filed response arguing res judicata
based on 3rd DCA's denial of motion for stay in Rathkamp and arguing abstention (federal courts
should abstain from deciding issues of pure state law). ($17,798.25 as of August 31,2000).
Below-Flood-Elevation Violations
Beattie - Declaratory action regarding whether Monroe County is barred from enforcing prohibitions
against below-BFE enclosures due to statute oflimitations or other time-baning doctrines. Sununary
judgment on issue of statute oflimitations was heard on May 21, along with laTorre oral argument
Awaiting ruling from Judge Payne ($9,50000 as of August 31,2000).
La.Torre - (Case being handled by Bill Friedlander, Esq) Code enforcement appeal challenging
whether Monroe County is prohibited from enforcing BFE regulations due to statute of limitations.
See Beattie (above).
Takint!s Oaims
New Port Lareo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Case has been bifurcated to separately decide issues of
liability and damages. Plaintiffs have filed Motion for Summary Judgment. Monroe County will
respond and likely file cross-motion for summary judgment largely based on factual findings made by
federal court. ($8422.00 as of August 31, 2000)
Sbadek - Talrings claim for 570 acres of North Key Largo property based on the fanner Major
Development Moratorium. Trial has been continued and re-set for February, 200 I, at request of all
parties due to the lack of a permanent judge in the upper Keys division. Monroe County anticipates
requesting additional discovery and taking depositions in preparation for trial. ($87,475.75 as of
August 31, 2000).
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Siens & Billboards
Republic Media/Outdoor Systems - Declaratory action claim filed by billboard owners challenging
applicability of Post-Hurricane Emergency Pennitting Policy and the billboard valuation schedule
pursuant to code regulations prohibiting repair of non-conforming billboards damaged beyond 50% of
their value. Monroe County is seeking discovery requests regarding existing billboards and the work
than has been done without pennits. ($13,154,00 as of August 31,2000).
Stoky - Plaintiffs have filed two separate appeals of Planning Commission's decisions affirming the
denial of two after-the-fact building permits (1) for reconstruction of porch and deck structures and
(2) for re-construction of a non-confonning sign. Monroe County's Answer Brief for sign has been
filed. Plaintiffs have been granted extension of time to file Initial Brief on porch & deck appeal.
($2,700.00 as of August 31,2000).
Perry's (Key Largo) - Declaratory action almost identical to complaint filed by Republic Media &
Outdoor Systems challenging Post-Hurricane Emergency Permitting Policy and it's application to
billboards. Temporary injunction has been automatically dissolved due to dismissal of the Repub/ic
Media appeal. Code enforcement violations may now be set for hearing. ($ 1295.00 as of August 31,
2000).
Other Motten
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and U983 claims
challenging Monroe County's policy that installing commercial electric service to No Name Key is
prohibited by the 2010 comprehensive plan. Monroe County's Motion to Dismiss was denied.
Monroe County will file motion for swmnary judgment based on discovery responses provided by
Plaintiffs. There has never been any formal or written approval for electricity to support the vested
rights claim. ($4,172.00 as of July 31,2000).
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. All county regulations have been complied with (ROGO allocations have been
granted); only state concurrency and Endangered Species Act are preventing development at this
time. Monroe County has filed a motion to dismiss on the grounds that any liability created by these
regulations (Chapter 163 concurrency and Endangered Species Act) should be borne by the agencies
charged with enforcing those regulations. Said motion was heard by Judge Taylor on August 3.
($2,707.50 as ofJuly 31, 2000).
GaDeon Bay - Plaintiff has filed Petition for Certiorari review ofBOCC's decision to deny vested
rights application. Monroe County's response was filed November 15th. No hearing has been set.
Plaintiffs have moved to have case transferred to lower keys division. ($1762.S0 as of August 31,
2000)(does not include prior Galleon Bay matters).
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Ambrose - Declaratory action claiming vested rights under' 380.05(18), Defendants Monroe
County, DCA, and ls1amorada have filed their lnitial Brief appealing Judge Payne's order granting
vested rights to platted lot owners. The appellate court has granted Plaintiffs' Motion to Dismiss for
Lack of Jurisdiction based on the assertion that it is a non-final order and not appealable at this stage
of proceedings. The parties must now come up with a permitting and purchase plan, as ordered by
Judge Payne. The plan must be approved by both Plaintiffs and Defendants and any remaining issues
will be decided by Judge Payne. Once the plan is finalized, it will become part of a final judgment and
will then be subject to appeal. Growth Management and the Land Authority are preparing a draft
plan for BOCC review. The draft plan will not be presented to Plaintiffs as a proposed final plan until
approved by BOCC, DCA, and Islamorada ($34,192.25 as of August 31, 2000),
Florida Keys Mediul Complex - Declaratory action case regarding Code regulations dealing with
shared and off-street parking. (whether a variance is required under Plaintiff's Shared Parking
Agreement with the Elk's Lodge). Marathon liMA has appealed Judge Taylor's Order denying their
motion to intervene and abating their administrative appeal in which they had the initial variance
granted by the Planning Commission reversed. Appeal was denied by Third District Court of Appeal.
($2750.75 as of August 31,2000)
Personal Watercraft Industry Assoc. - Complaint for Injunctive and Declaratory Relief
alleging watercraft restriction zones Ordinance are unconstitutional under commerce clause and
supremacy clause. Cross-Motions for Summary Judgment were denied and case has been set for
trial. The Florida legislature has passed an amendment to the Florida Statutes which prohibits any
local government from discriminating against personal watercraft. Accordingly, the ordinances
passed by Monroe County are rendered invalid and unenforceable by this legislation which
became effective July J, 2000. Plaintiffs have filed for summary judgment based on the new
legislation. Monroe County has filed a response against summary judgment (outside scope of
relief requested) and a suggestion of mootness and/or request for a stay to give BOCC time to
fonnally rescind the ordinances. ($21,675.50 as of August 31,2000).
Royal Plum Condominium Association - Complaint for damages in which Plaintiffs claim they
are being wrongfully double-chatged by being assessed an annual solid waste fee by the County as
well as additional collection fees from Marathon Garbage Service, a contractor for the Municipal
Service District. Parties reached a tentative agreement through mediation The proposed
settlement agreement will be on August BOCC agenda. ($4,7} 7.50 as of August 31, 2000)
Tropic Leisure Recreation - Complaint regarding property on Upper Matecumbe in which Plaintiffseclaim they were denied building pennits for new construction. Plaintiff's have filed suit against
Islamorada and Monroe County. Monroe County's Motion to Dismiss was filed March 2411t. Case has
been removed to Federal District Court and Motions to Dismiss are pending. ($1,350.00 as of
August 3) , 2000).
3
"
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New Ca.,es
Blue Anchor Holdings, Ltd. - Complaint for vested rights & declaratory relief for three Ocean Reef
properties. Plaintiffs seek to be vested from 50' wetland setback and 2,000 square foot footprint
limitations under previous Ocean Reef Master Plan vesting orders. A proposed settlement agreement
has been submitted by Plaintiffs and is being reviewed by Growth Management. If approved, the
settlement agreement will be put on future agenda for BOCC review.
PhelpsIBardin - Claim brought in federal court for due'process and inverse condemnation based on
code enforcement proceedings that resulted in a lien on Plaintiffs' property. Monroe County has filed
a motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders and
because Plaintiffs' similar claims are still pending in state court
Gustinger - Claim for declaratory relief and inverse condemnation based on code enforcement
proceedings. Plaintiff' was found in violation of various code provision for failure to reconstruct or
demolish a non-confOIming structure damaged by hurricane. Under 50% rule, said structure could
not be permitted as it previously existed. The Special Master's findings were not appealed. Plaintiff's
application for building permit was denied and Dot appealed. Monroe County has filed a motion to
dismiss for failure to exhaust administrative remedies (could have appealed building permit denial to
Planning Conunission) and res judicata (cannot re-litigate factual findings already made by Special
Master and not appealed).
4