Item F2
L.AW OFFlCES
W. CI,IRRY HARRill
(\907 'Ioeel
HILA"'Y U. Al,au",y
( 1920 - I gool
HUG'" V. MO"O""
.JAMES T. HI!:NORICK
KAREN K. CAlI_AS
..h.:obl! V. REO,o.NTE
MORGAN & HENDRICK
:3 , 7 WHITEH~ STREET
KEY Wf!ST. FLORIOA 33040
FAX TRANSMISSION
TO: JIM ROBERTS
MA....OR FREEMAN
COMMISSIONER HARVEY
COMMISSIONER NEUGENT
COMMISSIONER REtcH
COMMISSIONER WILLIAMS
TIM McGARJlY
CLERK'S OFFICE, BELLE DESANTIS
FAX#:
191-4544/
292.3466~
871-919V ./
305-852-71;:/;'/ .-
292-357~ .
305-289-63 / ~
(365) 289-253W
195.36IS
FROM:
KAREN CABANAS, :ESQ.
DATE:
12/11/00
SUBJECT:
GROWTH MANAGEMENT REpORT
TRANSMITTER: Jom
Total number of pages including this cover sheet: 4
ORIGINAL DOCUMENT(S):
_x_ WILL NOT BE SENT
REGULAR
Wn.L BE SENT
OVERNIGHT
COMMENTS:
11. iDfonDMion _aiacd in Ibis facsimile -. ia altaruey pri~~ and COIIfIdcDIiaI,. intended GGly for the uac: oftbe iDdi9icIuIl Of eadty IIIIDCd
abgye. Jtthe m.dIr ofthia 1ltCI.... is aotdle ~d recipieal. you IInl ha:rcby lSOIified1hat lAY diIIca1iDaliOll, ditVthUlion Of copy oflbia_uialion
ill\Iia1y probiblt.cd. 1f you have received thia ~1iaIl in error. plcllc imIlIeciatoly 1l<ICitY_1tytA:1cplax..... (IIQIn11!te original *-SC to us ;at
the above address VIA the U. S. POIIat s.vice. If you doliOtRmW ;d)Aes. pk:uecaU baI:k u_a.~I"'''ibIc 305-296-$616. ThefollowinBia~dllX
JWIIIiIer 305-1!Jfio<DJ1.
po .0. Box I I I 7. KEY Wcsr. n .:):)04 I $ TI:LV"HON[ 305 age-567e $ f'ACSI...U 30!5 206-4,3.:3 I
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-- ._,-.,.-..--' ~
GROWTH MANAGEMENT LmGA nON {ttPOR1;
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
December 13-14, 2000
V_cation Rentals
Neumont (Federal CLass Action) - Federal district court claim alleging vacation rental
ordinance was prematurely enforced and is an unconstitutional taking ofPlaintifIs' properties.
Class action certification has been approved. Cross-motions for summary judgment on premature
enforcement issue are pending and awaiting roling or to be set for hearing. Monroe County's
summary judgment motion includes argument on res judicata (based on 3rc1 DCA's denial of
motion for stay in Rathkamp) and abstention (federal courts should abstain from deciding issues
of pure state law). Plaintiffs' have been granted leave to tile a second amended complaint which
challenges the adoption of the ordinance. This new claim alleges tbat the ordinance was not
properly adopted because text changes were made at the third reading. (524,813.15 as of
November 30, 2000).
Dandle - Declaratory action challenging vacation rental regulations aIlegjng that Petitioner relied
on existing zoning and that vacation rental use of their property should have been grandfathered
based on occupational licenses. Monroe county bas filed a motion to dismiss because Florida law
holds that there is no right to rely on existing ~onin8 and occupational licenses do not confer any
property rights; they are merely a tax. ($429.00 as of November 30,2000).
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. Monroe 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. No ruling yet on whether Judge Payne will
conduct are-hearing.
Takin#S Claims
New Port Largo . State "physical occupation" takings claim tbat 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 hearing date has been set. ($8,539.00 as of November 30, 2000).
....------..--..-.' -. -
Shadek _ Takings claim for -570 acres of North Key Largo property based on the 1980's Major
Development Moratorium. Trial is currently scheduled for February, 2001. Monroe County will be
taking Plaintiffs' depositiol1s December 141h artd parties are completing discoveI)' in preparation for
trial. ($91,100.75 as of November 30,2000).
Tropic Leisure Recreation - Takings claims regarding property on Upper Mateeumbe in which
Plaintiffs claim they were denied building permits for new construction. Plaintiffs have filed suit
against Islamorada and Monroe County since permitting requests began prior to incorporation.
Monroe County win likely file motion for summary judgment since the majority of Plaintiffs claims
occurred subsequent to incorporation. ($1,95LOO as of November 30,2000).
Phelps/llardiD - Claim brought in federal court for due process artd 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 court, ($820.00 as of November 30, 2000).
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 reconstJUct or
demolish a non-conforming structure damaged by hurricane. Under 50% rule, said structure could
not be pennitted as it previously existed. The Special Master's tindings were not appealed. Plaintiff $
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).
Siens ~ BiUboard.
Republic Media/Outdoor Systems - Declaratory action claim filed 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 SQDIo of
their value. Monroe County is seeking discovery requests regarding existing billboards and the work
than has been done without permits. ($13,594.00 as of November 30,2000).
Stoky - Plaintiffs have filed two separate appeals of Planning COmm.)ssion'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-conforming sign. Oral argument on sign appeal was held December
Sill. Plaintiffs have been granted extension of time to tile Initial Brief on porch & deck appeal.
($4,130.00 as of November 30, 2000).
Perry's (Key Largo) - Declaratory action almost identical to complaint filed by Republic Media &
Outdoor Systems challenging Post-H\lITicane Emergency Pennitting Policy and it's application to
billboards. Temporary injunction has been automatically dissolved due to dismissal of the lUpubliC
Media appeal. Code enforcement violations have been set for hearing and Monroe County may move
to dismiss action, pending outcome of code enforcement case (no final order has been issued yet.
($1295.00 as of November 30, 2000).
z
Other Matters
Taxpayers fot 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 will file motion for summary judgment
based on discovery responses provided by Plaintiffs. There has never been any formal or written
approval for elecuicity to support the vested rights claim. ($5,271.00 as of November 30,2000).
Oay (Big Pine Moratorillm) - Complaint filed against Mom-oe 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. Monroe County has filed its answer and will likely move for summary judgment
based on failure to join indispensable parties (DCA and USFWS) and adoption of ordinance adopting
Chapter 163 concurrency requirements. All county regulations have been complied with (ROGO
allocations ha~e been grartted, however, pennits cannot be issued due to Chapter J 63 concurrency
requirements and Endangered Species Act). Any liability created by these regulations should be
bome by the agencies charged with enforcing those regulations. Plaintiffs have filed a motion for
partial summary judgment. Momoe County will respond and cross-motion for suntm8tY judgment on
same issue, as there appear to be no facts in contention, only legal interpretations. ($4,118.50 as of
November 30, 2000).
Galleon Bay - Plaintift'has. filed Petition for Certiorari review ofBOCCs decision to deny vested
rights application. No hearing has been set~ case has been transferred to lower keys division.
(52,480.00 as of November 30, 2000)(does not include prior Galleon Bay matters).
Ambrose - Declaratory action claiming vested rights under S380.05(18) based on filing of
subdivision plats. Judge Payne issued order granting summary judgment in favor of Plaintiffs.
Monroe County, DCA, and Islamorada 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
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. A proposed Statement of
Compliance setting forth the plan was on last month's BOCC agenda. Plaintiffs have not yet
responded to the plan which Defendants anticipate filing on or about December 15th. ($36,678.75 as
of November 30, 2000).
Personal Waterttaft Industry Assoc. - Complaint for Injunctive and Declaratory Relief
alleging watercraft restriction zones Ordinance arc unconstitutional under commerce clause and
supremacy clause. The Florida legislature passed an amendment to the Florida Statutes which
prohibits any local governmetlt from diseriminating 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 formally rescind the ordinances. An ordinancc rescinding the prior ordinances was on last
month's BOCC agenda. Once finalized, a copy will be filed with the Court and the case win then
be dismissed as moot. ($22,358.00 as of November 30, 2000).
Puyaaic (new matter) - Complaint for declaratory and injunctive relief alleging conunercial
ROGO violates due process. Monroe County has filed an answer denying said allegations.
3