Item E2
GROWTH MANAGEMENT LmGA nON REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K Cabanas
DATE:
November 21-22, 2000
Vatation Rentals
Neumont (Federal Class Action) - Federal district court claim alleging vacation rental
ordinance was prematurely enforced and is an unconstitutional taking of Plaintiffs' properties.
Class action certification has been approved. Cross-motions for summary judgment on premature
enforcement issue are pending and awaiting ruling or to be set for hearing. Monroe County's
summary judgment motion includes argument on res judicata (based on 3M DCA's denial of
motion for stay in Rathkamp) and abstention (federal courts should abstain from deciding issues
of pure state law). Mom-oe County has also filed for partial summary judgment on takings claims
on basis that Plaintiffs' claims are unripe for federal judicial review. The doctrine of ripeness is a
prerequisite to establishing subject matter jurisdiction and mandiltes that plaintiffs seek and be
denied state court remedy before seeking redress in federal court. ($22,934.25 as of October 31,
2000).
Handte - (new case) - Declaratory action challenging vacation rental regulations alJeging that
Petitioner relied on existing zoning and that vacation rental use of their property should have been
grandfathered based on occupational licenses. Monroe county has filed a motion to dismiss
because Florida law holds that there is no right to rely on existing zoning and occupational
licenses do not confer any property rights; they are mereJy a tax. ($429.00 as of October 31,
2000).
Below-Flood-Elevation Violations
LaTorre - Code enforcement appeal challenging whether Monroe County is prohibited from
enforcing below flood elevation regulations due to statute of limitations. Judge Payne entered final
ruling in favor of laTorre holding that the four-year statute of limitations applies. Mom-oe County
has filed a motion for re-hearing on basis that certain factual findings and conclusions of law are
inconsistent with the administrative record below.
TalOn,s Claims
New Port 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 file cross-motion for summary judgment largely based on factual findings made by
federal court. No bearing date has been set. ($8,539.00 as of October 31,2000).
f.~
Shadek - Takings claim for -570 acres of North Key Largo property based on the 1980's Major
Development Moratorium. Trial is currently scheduled for Februaxy, 2001. Monroe County will be
taking Plaintiffs' depositions November 29'" and parties are completing discovery in preparation for
trial. ($88,312,25 as of October 31,2000).
Tropic LeiJure Recreation - Takings claims regarding propeny on Upper Matecumbe in which
Plaintiffs claim they were denied building pennits for new construction. Plaintiffs have filed suit
against Islamorada and Monroe County since permitting requests began prior to incorporation.
Monroe County will likely file motion for summary judgment since the majority of Plaintiff's claims
occurred subsequent to incorporation. ($1,951.00 as of October 31, 2000).
PhelpslBardin - 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 tiled
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. ($820.00 as of October 31,2000).
Gustinger - Claim for declaratory relief and jnverse condemnation based on code enforcement
proceedings. Plaintiff was found in violation of various code provision for failure to reconstruct or
demolish a non-confonning 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 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).
Signs & Billboard!
Republic: Media/Outdoor Systems - Declaratory action claim filed by billboard owners challenging
applicabjlity of PoSt-Hurricane Emergency Permitting Policy and the. billboard valuation schedule
pursuant to code regulations prohibiting repair of non-confomUng billboards damaged beyond 50010 of
their value. Monroe County is seeking discovery requests regarding existing billboards and the work
than has been done without permits. ($13,544.00 as of October 31,2000).
Stoky - Plaintiffs have filed two separate appeals of Planning Commission's decisions affinning the
denial of two after-the-fact building permits (1) forreconstruction 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. ($4,130.00 as of October 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 Republic
Media appeal. Code enforcement violations have been set for hearing and Monroe COWlty may move
to dismiss action, pending outcome of code enforcement case. ($1295.00 as of October 31, 2000).
2
Other Matters
Tupayers for Electrification of No N8JIle Key - D~laratory, 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.
Monroe County will file motion for summary judgment based on discovery responses provided by
Plaintiffs. There has never been any fonnal or written approval for electricity to support the vested
rights claim. ($5,277.00 as of October 31,2000).
Clay (Big Pille 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 ot service. Monroe County has filed its answer and will likely move for summary judgment
based on failwe to join indispensable parties (DCA and USFWS) and adoption of ordinance adopting
Chapter 163 concmrency requirements. All county regulations have been complied with (RooO
allocations have been granted, however, pennits cannot be issued due to Chapter 163 concurrency
requirements and Endangered Species Act) Any liability created by these regulations should be
borne by the agencies charged with enforcing those regulations. ($4,118.50 as of October 31,2000).
Ganeon Bay - Plaintiff 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.
($2,480.00 as of October 31, 2000)(does not include prior Galleon Bay matters).
Ambrose - Declaratol)' action claiming vested rights under ~380.05(I8) based on filing of
subdivision plats. Judge Payne issued order granting summary judgment ill favor of Plaintiffs.
Monroe County, DCA., and IsJamorada appealed that order to the Third District Court of Appeals.
The appellate court granted Plaintiffs' Motion to Dismiss for Lack of Jurisdiction based on the
as!lertion tbat 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. A proposed Statement of
Compliance setting forth said plan is on this month's Boce agenda. ($35,898.75 as of October 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 has been dismissed as moot because the property lies
within the City of Marathon. ($3,638.75 as of October 31,2000).
Penonal Watercraft Industry Assoc. - Complaint for Injunctive and Declaratol)' Relief
alleging watercraft restriction zones Ordinance are unconstitutional under commerce clause and
supremacy clause. The Florida legislature 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 1,2000. Plaintiffs filed for summary judgment based on the new
legislation, however, the court granted Monroe County's request for a stay to give BOCC time
to fonnally rescind the ordinances. An ordinance rescinding the prior ordinances is on this
month's BOCe agenda ($22,358.00 as of October 31,2000).
3
LAW OFI"ICES
3 I 7 WHITEHEAD Sl'fItEET
Ka WEST. FLORIOA 33040
W. CUR"'" HARR.S
(1907 -,gee>
HILARY U. A\.8URY
(IQ20 -IQggl
HUOH .). Mol'lO.'U<
.J~M~S T. I-kNORICI<
KAREN K, CAllANAS
.)EOOE V. REGAHTE
MORGAN & HENDRICK
FAX TRANSMISSION
TO: JIM ROBER.TS
MAyOR. FREEMAN
COMMISSIONER IlA.R.VZY
COMMISSIONER. NEUGENT
COMMISSIONER REICH
COMMISSIONER Wn.LJAMS
nM MCGARRY
CURK'S OFFICE, BELLE DESANTIS
FAX #:
292.454~
292-346(j1/"/
872.91'~
JOS-S52-716
292-357" /'
305-289-630(( ./
(305) 28'J-2536/
295-3615
FROM:
KAREN CABANAS, ESQ.
DATE:
11/17/00
SUBJECT:
GROWTH MANAGEMENT RlPORT
TRANSMITTER: JONI
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