Item E2
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LAW OFFICES
W. CURll\' HARRIS
(11)07 -I oeB)
H ILAR't' U. AL8UIIY
11020 -IQOOI
HUG'" .J. MoAGAN
JAM~ T. HENOfllCK
KAREN K. CJt.BN\1'S
.JEDOE V. REGANTJ:
MORGAN & HENDRICK
3 I 7 WHITEH~D STR~ET
KEY W~$T, FLORIDA 33040
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR FREEMAN
COMMJSSIONER HARVEY
COMMISSIONER NEUG~NT
COMMISSIONER blCH
COMMISSIONER WILLIAMS
TIM McGARllY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 29Z-4S~
292-346V "
872-919~
305-852-716~'
292-357 ~
305-289-630
(JOS) 289-253
295-3615
FROM: KAlttN CABANAS, ESQ.
DATE: 9/18/00
SUBJECT: GRowm MANAGEMENT REpORT
TRANSMITTER: JONJ
Total number of pages including this cover sheet: S
ORIGINAL DOCUMENT(S):
_x_ WILL NOT BE SENT
REGULAR
WILL BE SENT
OVERNIGHT
COMMENTS:
The information eotlI&incd in Ibis f:.csimi\c mcua;c is alUlrncy privilccod aod confidc:ntial, inWftded oaIy fill' 1IIe u.ee of the individual or entity IWmed
abo~. Iflhe~roClbi.meU&JlC __\be ~~)'ou...e be....byllOlilied1Mt-y~ diilribll1ioft or copy o1'\ba~
i. Melly prohibitA:d. lCyOll ~ve rcccivod1lW; commwUcation in _. pJcaac immcclia161)' notify... bywllpllonc mdrelUtftthe ariginalmcasaee lOua"
\be above~' ~ 1hc U. S. PostAl Service. If you lID nalreceiv~ all PatlC!l. pIcUc: ,;dl back ..IIOO.D as po...ible 305-:Z96-5676. The foll_iIl8iaourw.
IlUIl\bcr JOS-2H-4JJ1.
P.O. Box I I 17. KE:'l'WES1'. fl.. 33041 $ nLEPKo"E 305 2a6-15&70 $ F...eSIMII.E: 305 200-4331
E.I
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GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
September 20 - 21, 2000
Va~tion Rentals
Neumont (Class Action) _ Magistrate Judge has recommended class action cenification; Cross-
motions for summaI)' judgment on premature enforcement issue are pending and awaiting ruling
or to be set for hearing. Molttoe County's swnmary judgment motion includes argument on res
judicata (based on 3rd DCA's denial of motion for stay in Rathkamp) and abstention (federal
couns should abstain from deciding issues of pure state law). ($18,663.25 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 of limitations or other time-barring doctrines, Summary
judgment on issue of statute oftimitations was heard on May 21, along with LaTorre oral argument.
Awaiting ruling from Judge Payne. ($9,500.00 as of August 31,2000).
LaTorre _ (Case being handled by Bill Friedlander, Esq.) Code enforcement appeal challenging
whether Monroe CO\1llty is prohibited from enforcing BFE regulations due to statute of limitations.
See Beattie (above).
Takin2s Claims
New Porl Largo. 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. No hearing date has been set. ($8422.00 as of August 31, 2000).
Shadek _ Takings claim for 570 acres of North Key Largo property based on the former Major
Development Moratorium. Trial has been continued and re-set for February, 2001, 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 prepaTation for trial. ($87,475.75 as of
August 31, 2000).
phdpslBardin _ 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 bas 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 COlin. ($820.00 as of August 31,2000).
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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-conforming structure damaged by hurricane. Under'SOO!o rule, said structure could
not bepennitted as it previously existed. The Special Master's findings were not appealed. Plaintiff's
application for building permit was denied and not appealed. Monroe County has filed a motion to
dismiss for failure to exhaust administrative remedies (could have appealed building permit denial to
Planning Commission) and res judicata (cannot re-litigate factual findings already made by Special
Master and not appealed).
Silns & 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-confonnmg billboards damaged beyond 50% of
their value. Monroe County is seeking discovery requests regarding existing billboards and the work
than has been done without permits. ($13,154.00 as of August 31, 2(00).
Stoky _ Plaintiffs have filed two separate appeals of Planning Commission's decisions affinning 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-conforming sign. Sign appeal has been fully briefed and will be set
for oral argument. Plaintiffs have been granted extension of time to file Initial Brief on porch & deck
appeal. ($3,780.00 as of August 31,2(00).
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 oftheRepublic
Media appeal. Code enforcement violations have been set for hearing and Mom-oe County may move
to dismiss action, pending outcome of code enforcement case. ($1295.00 as of August 31, 2(00).
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and ~1983 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.
Mom-oe County will file motion for SUDUJ1afY 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. ($4,614.50 as of August 31, 2(00).
Oay (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 sen/'ice. Based on Monroe County's Motion to Dismiss. Plaintiff's bave been granted 20 days
to file an amended complaint adding any state or federal agencies which are indispensable parties
(DCA and USFWS). 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. Any liability created by these regulations (Chapter 163 concurrency and Endangered Species
Act) should be borne by the agencies charged with enforcing those regulations. ($3,562.50 as of
August 31, 20(0).
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Galleon Bay _ Plaintift' has filed Petition for Certiorari review ofBOCC's decision to deny vested
rights application. No hearing has been set~ case has been transferred to lower keys division.
(52,430.00 as of August 31, 20oo)(does not include prior Galleon Bay matters).
Ambrose _ Declaratory action claiming vested rights under '380.05(18) based on filing of
subdivision plats. The appellate court 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 were ordered by Judge Payne to come up with a permitting and purchase plan by filing a
"consent agreement." However, Defendants (MoCo, Islamorada & DCA) are concerned that
submitting a "consent agreement" permitting & purchasing plan may constitute a waiver of certain
rights to appeal. Therefore, Defendants anticipate filing a statement with the Court objecting to the
submission of a consent agreement because said agreement is outside the scope of relief requested in
the Plaintiffs' complaint. This is a declaratory judgment action wherein Plaintiffs requested only a
statement clarifying their rights under ~380.05(lS) - they did not ask the Court to order the
pennitting or purchasing of their properties. ($34,671.25 as of August 31. 2000).
Florida Keys Medical Complex - Declaratory action case regarding Code regulations dealing with
shared and off-street parking. (whether a variance is required under Plaintiffs Shared Parking
Agreement with the Elk' s Lodge). This case was in abeyance pending outcome of Marathon lIMA' s
appeal of 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. The
appeal was denied by Third District Court of Appeal in February, 2000. and the circuit cowt case may
now proceed and Monroe County has ftled its answer to the complaint. ($2750.75 as of August 31,
2000).
Penonal 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
10ca1govemment from discriminating against personal watercraft. Accordingly, the ordinances
passed by Monroe County are rendered invalid and unenforceable by this legislation which
became effective July 1,2000. Plaintiffs have filed for SUJ1\11lary judgment based on the new
legislation. Monroe County has filed a response against summary judgment (outside scope of
reliefrequestcd) and a suggestion ofmootness and/or request for a stay to give BOCC time to
formally rescind the ordinances. ($22,283.00 as of August 31, 2000).
Tropic Leisure Recreation _ Complaint regarding property on Upper Matecumbe in which Plaintiffs
claim they were denied building pennits for new constrnction. Plaintiffs have filed suit against
Islamorada and Monroe County. Based on partial granting of motion to dismiss, Plaintiffs have until
October 11 to file an amended complaint. ($1,350_00 as of August 31,2000).
Blue Anchor Boldine', 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 Case has been tentatively settled
by a letter from T. McGarry stating that subject properties are vested from certain regulations under
Ocean Reef Master Development Plan. as consistent with prior vested rights orders on similarly
situated properties. ($855.00 as of August 31,2000).
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Merritt _ (new matter) ~ Petition for Writ of Mandamus requesting issuance of certificate of
occupancy for affordable housing unit. Petitioner refuses to sign form affidavit provided by planning
department assuring compliance with affordable housing criteria, i. e., by providing tenant's tax return
statements to verify income levels. Petitioner asserts that previously-filed affidavits are sufficient to
assure compliance. Monroe County bas moved to dismiss because mandamus is extraordinary relief
available only where no other adequate remedy is available. In this case, Petitioner may appeal the
Planning Director' 5 letter denying issuance ofC.O. to Planning Department, and in fact, bas filed such
an administrative appeal. Hearing will be held September 20.
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