Item E3
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: November 22,2000
Bulk Item: Yes No X
Division: Growth Management
Department: N/ A
AGENDA ITEM WORDING: Appoval of proposed response to be submitted in Ambrose, et at. v. Monroe County.
ITEM BACKGROUND: Pursuant to Judge Payne's Order granting summary (judgment to Plaintiffs, the Defendants
(DCA, Islamorada & Monroe County) were ordered to draft a pennitting & purchasing plan for vested subdivision lots. A
draft plan has been prepared by the Defendants for submittal to Judge Payne. The County Attorney's Office and Growth
Management Division staff requests the board of County Commissioner's approval of the proposed response.
PREVIOUS RELEVANT BOARD ACTION: None
STAFF RECOMMENDATION: Approval
TOTAL COST:
N/A
BUDGETED: Yes
No X
COST TO COUNTY:
N/A
APPROVED BY: County Attorney
X
OMB/Purchasing N/ A
Risk Management N/ A
DEPARTMENT DIRECTOR APPROVAL: ;;r ~ ~t/
K. Marlene Conaway, ilfctor of Planning
DOCUMENTATION: Included
x
To follow
Not required
DISPOSITION:
Agenda Item #: -.a ' &3
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IN THE CIRCUIT COURT OF THE
SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY,
FLORIDA
THORA AMBROSE, ET. AL.,
Plaintiffs,
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Case Number 97-20-636-CA-18
vs.
MONROE COUNTY, a Political Subdivision
of The State of Florida, THE VILLAGE OF
ISLAMORADA, a municipal corporation, and
THE DEPARTMENT OF COMMUNITY
AFFAIRS,
Defendants.
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DEFENDANTS' COMPLIANCE WITH
ORDER GRANTING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT
Defendants, Monroe County, The Village of Islamorada and the Department of
Community Affairs (hereinafter the "Defendants"), comply with this Court's order entered
March 27,2000 granting Plaintiffs' motion for summary judgment and state:
I. In its Order Granting and Denying Motions for Summary Judgment ("the
summary judgment order"), this Court decreed:
"IT IS HEREBY ORDERED that the Defendants return to
this Court within 120 days of the effective date of this Order, with
a written plan approved by the Defendants and agreed to by the
Plaintiffs, that sets out Defendants' timetable and plan for either
permitting these Plaintiffs (or their successors in title) to construct
single-family homes on their platted, recorded subdivision, lots; or
forathe purchase of said lots at the fair market value they would
have if unencumbered by any regulations declared invalid by
paragraph 3 above... ."
Case No. 97-20-636-CA-18
1. RESERVATION OF RIGHTS
2. Although this document complies with the Order of March 27, 2000,
Defendants respectfully submit that in the absence of a voluntary consent decree, the Plaintiffs
have demonstrated no authority for the trial court to require Defendants to prepare a plan
which Defendants believe violates their lawful rights to regulate uses of private property in
accordance with the Florida Constitution and statutes.
3. Moreover, Defendants are concerned about jeopardizing their rights to appellate
review. Indeed, the Florida Supreme Court has recently reemphasized the importance of
preservation of error as the keystone of the appellate review process. See Murphy v.
International Robotics Systems, Inc., 25 Fla.L.Weekly 8610 (Fla. August 17, 2000).
4. Finally, Defendants respectfully submit that the decretal portion of the summary
judgment order quoted in paragraph one (1) above grants a remedy beyond the scope of the
pleadings. It should therefore be excised from and not included in any fmal judgment to be
entered by the Court, based on the following briefly-stated legal analysis.
It is axiomatic that a trial court may not grant a remedy not requested by the pleadings.
Hernandez v. Hernandez, 444 So.2d 35 (Fla. 3d DCA 1983), review denied, 451 So.2d 848 (Fla.
1984). Herein, the Plaintiffs limited their prayer for relief to the following:
"Plaintiffs pray for the entry of a Declaratory Judgment,
pursuant to chapter 86, Florida Statutes (1985), that deClares
Plaintiffs' rights and privileges under ~ 380.05(18), Florida
Statutes (1995), and the effect, if any, of the 1986 Florida Keys
land development regulations and all amendments thereto,
including but not limited to the ROGO and the Year 2010
Comprehensive Plan." Complaint for Declaratory Relief, p. 9.
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Case No. 97-20-636-CA-18
In paragraph three of the summary judgment order, this Court granted the declaration of
rights requested by the Complaint. This Court then proceeded to grant the additional relief
quoted in paragraph one (1) above, mandating the Defendants to prepare a plan of development
for permitting single-family residents on each of the 800 lots owned by the Plaintiffs or,
alternatively, purchasing the lots from the Plaintiffs at fair market value.
Giving the local government a choice between issuing a building permit and purchasing
property at fair market value is tantamount to a finding that there is no economically beneficial
or productive use of the property. See and compare Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992); Tampa-Hillsborough County v. A.G. w.s. Corp., 640 So.2d 54 (Fla. 1994);
Jacobi v. City of Miami Beach, 678 So.2d 1365 (Fla. 3d DCA 1996). The Plaintiffs made no
pleading requesting such relief and certainly made no such evidentiary showing in this case.
Under such circwnstances, there is no legal basis for awarding either the remedy of a grant of a
building permit or requiring compensation to be paid to the Plaintiffs, since neither form of relief
was requested by the pleadings.
5. Although Defendants continue to maintain their position that the permitting and
purchasing plan ordered by this Court is outside the scope of relief requested by Plaintiffs, this
Court has nonetheless ordered Defendants to submit a proposed permitting and purchasing
"plan." Accordingly, Defendants have obtained from the Monroe County Land Authority a
proposal for acquisition of platted lands, as set forth below, and have outlined a vested rights
mechanism which could be utilized as an alternative to purchase. This combined acquisition
proposal/vested rights alternative is hereafter referred to as the "Plan." Defendants wish to make
it very clear that while the "Plan" set forth below is being submitted to the Court pursuant to
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Case No. 97-20-636-CA-18
order, Defendants do not consent to judicial imposition of this Plan. Defendants reserve their
objections to entry of an order requiring implementation of a permitting and purchasing plan, and
do not, by complying with the Court's Order, waive their respective rights to appeal this Court's
final judgment, whether or not it incorporates some elements of the Plan.
6. In order to prepare a plan as ordered by the Court, it is first necessary to identify
properties owned by the Plaintiffs that would be eligible to receive a purchase offer or permit
from the Defendants. In the course of discovery, Defendants requested the Plaintiffs to provide
property record cards identifying properties intended to be included in this case. The Plaintiffs'
counsel provided 791 property record cards. Following review of said record cards by the
Monroe County Land Authority), the Defendants find the information provided to be
inconsistent in the following respects:
a. Over 100 Plaintiffs are not listed as property owners on any of the record
cards provided, suggesting that not all the property record cards requested by defendants
were produced by the Plaintiffs.
b. Over 200 of the record cards identify the property owner as a party other
than those listed as Plaintiffs, suggesting that owners who are not Plaintiffs have been
erroneously included in the database. This error has been confirmed for two of the record
cards provided.
The Monroe County Land Authority is a land authority created pursuant to ~380.0663(1), Fla. Stat., and
Monroe County Ordinance 31-1986 to acquire and dispose of real property as a means of implementing
comprehensive land use plans developed pursuant to the Chapter 380 Areas of Critical State Concern legislation.
The Monroe County Land Authority also serves as a local partner with the State Conservation and Recreation
Lands ("CARL") program.
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Case No. 97-20-636-CA-18
c. A total of 17 of the record cards have legal descriptions with no plat book
reference, suggesting that these parcels are not part of a recorded plat, as required by this
Court's order.
d. A total of 142 of the record cards correspond to parcels located outside the
Defendant's permitting jurisdictions.
e. A total of 25 of the record cards correspond to properties that have already
been acquired by a governmental entity and 111 of the record cards correspond to
properties which have already had an offer tendered to the property owner through a
government acquisition program.
f. A total of 36 of the record cards correspond to parcels identified as below
the mean high water line and 168 of the record cards correspond to properties identified
as predominantly wetland.
II. TIMETABLE AND PLAN
7. Despite these concerns, the Defendants have used the information provided by
Plaintiffs' counsel to develop a potential remedial action plan which could be applied to each
platted lot owned by a Plaintiff and located within one of the Defendants' respective permitting
jurisdictions.
8. Defendants would review the appropriateness of each parcel for public ownership,
considering factors such as adjoining land uses, ownership patterns, infrastructure, and extent of
disturbance to the natural character of the land. Defendants would complete this analysis no later
than six (6) months after any Final Judgment adopting the Plan becomes final. (i.e., upon
issuance of an appellate court's mandate, if the Final Judgment were appealed).
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Case No. 97-20-636-CA-18
9. For those parcels deemed appropriate for public stewardship, the respective
Defendant would offer to purchase each such parcel at a purchase price equal to the 1979
assessed value as indicated on the archival records of Monroe County Property Appraiser. This
is appropriate because Florida law requires that the Property Appraiser establish the value of all
properties at "market value." The law defines market value as the amount a willing,
knowledgeable buyer would pay a willing, knowledgeable seller of property. See, Walter v.
Schuler, 176 So.2d 81, 85-86 (Fla. 1965).
10. The offer would be in the form of a purchase contract with a closing period not to
exceed one year. Said purchase contract would require the Seller to meet requirements typical of
real estate transactions, such as conveying of marketable title and conveying the property in a
condition that is free of trash, debris, hazardous materials, invasive exotic vegetation, structures,
and tenants. In each instance, purchase would be contingent upon the availability of adequate
monies to fund the purchase.
11. For those parcels deemed inappropriate for public stewardship, the respective
Defendant would select one of the following remedies:
a) Offer to purchase the property as described above.
b) Issue a vested rights order. Said vested rights order would vest the owner of
the subject parcel for a period of five (5) years, with the right to have his or
her building permit application considered without regard to those specific
regulations held in this action to be statutorily inapplicable to the subject
property. Any owner holding such a vested rights order would then have the
opportunity to apply for a building permit for the construction of a single-
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family residence on the owner's platted lot within the period of vesting and
would be responsible for compliance with only those regulations unaffected
by the subject suit.
12. The foregoing Plan describes a method whereby. the relief preliminarily described
by the Court could be implemented. Defendants do not, by describing how such a plan would be
carried out, consent to the judicial imposition of the Plan or any element thereof. Defendants
have submitted the foregoing Plan to Plaintiffs prior to filing, as required by this Court's Order.
WHEREFORE, Defendants have responded to the summary judgment order and pray the
Court to excise from any final judgment any reference to a plan or timetable for permitting or
purchasing the Plaintiffs' properties because such remedy is outside the scope of relief prayed for
in Plaintiffs' complaint for declaratory judgment.
Respectfully submitted,
Karen K. Cabanas, Esq.
Counsel for Monroe County
Florida Bar No. 0136964
MORGAN & HENDRICK
Post Office Box 1117
317 Whitehead Street
Key West, Florida 33940
Tel: (305) 296-5676
Fax: (305) 296-4331
David L. Jordan, Esq.,
Deputy General Counsel
For Department of Community Affairs
Florida Bar No. 291609
DEPT OF COMMUNITY AFFAIRS
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Tel: (850) 488-0410
Fax: (850) 922-2679
Daniel A. Weiss, Esq.
Counsel for Village of Islamorada
Florida Bar No. 326119
WEISS SEROTA HELFMAN
P ASTORIZA & GUEDES, P.A.
2665 S. Bayshore Drive, Suite 420
Miami, Florida 33130
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Case No. 97-20-636-CA-18
Tel: (305) 854-0800
Fax: (305) 854-2323
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via U.S.
Mail this _ day of November, 2000, to JAMES S. MATTSON, ESQ., P.O. Box 586, 88101
Overseas Highway, Key Largo, Florida 33037.
KAREN K. CABANAS
Florida Bar No. 136964
MORGAN & HENDRICK
Attorneys for Monroe County
317 Whitehead Street
Key West, Florida 33040
305-296-5676
305-296-4331 (fax)
KCabanas@flakeysol.com
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