Item E2
GROwm MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
January 17 -18,2001
Vacation Rentals
Neumont (Federal Class Action) - Federal district court claim alleging vacation rental
ordinance was prematurely enforced and is an unconstitutional taking ofPlaintjffs' properties.
Class action certification has been approved. Cross-motions for sununary 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 3N 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 file a second amended complaint which
challenges the adoption of the ordinance. This new claim alleges that the ordinance was not
properly adopted because teltt changes were made at the third reading. ($26,961.25 as of
December 31,2000).
Handte _ Declaratory action challenging vacation rental regulations alleging 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 Ii 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 merely a tax. ($429.00 as of December 31,2000).
Below-Flood-Elevation Violations
LaTorre _ Code enforcement appeal challenging whether Monroe County is prohibited from
enforcing below flood elevation regulations due to statute oflimitations. Judge Payne entered final
ruling in favor of LaTorre holding that the four-year statute oflimitations applies, Monroe County
has filed a motion for fe-hearing on basis that certain factual findings and conclusions of law are
inconsistent with the administrative record below. No ruling yet on whether Judge Payne will
conduct are-hearing.
Takinl!s Claim
New Port Largo _ State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Case has been bifurcated to separately decide issuC$ 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. ($8,614.00 as of December 31,2000).
Shadek _ Takings claim for -570 acres of North Key Largo property based on the 1980's Major
Development Moratorium. Trial is CUlTently scheduled for February, 2001. Monroe County will be
taking Plaintiffs' depositions January 22 and parties are completing discovery in preparation for trial
($92,086.25 as of December 31, 2000).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe 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 will likely file motion for summaX)' judgment since the majority of Plaintiff's claims
occulTed subsequent to incorporation. ($2,409.50 as of December 31,2000).
PbelpslBardin _ Claim brought in federal court for due process and inverse condemnation based on
code enforcement proceedings that resulted in a lien on Plaintiffs' property. Monroe County bas filed
a motion to dismiss based on Plaintiffs' fail\lfe to properly appeal code enforcement orders and
because Plaintiffs' similar claims are still pending in state comt. ($S59.00 as of December 31, 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 reconstruct or
demolish a non-conforming 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. Momoe 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)
Si2DS & BilIboal'lb
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 permits. ($13,783.00 as of December 31,2000).
Stoky _ Plaintiffs have filed two separate appeals of Planning Commission's decisions affinning the
denial of two after-the-fact building pennits (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
Sth. Plaintiffs have been granted mension of time to file Initial Brief on porch & deck appeal.
($4,801.00 as of December 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 ofthe Republic
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 fmal order has been issued yet.
($1295.00 as of December 31, 2000).
2
--.--.-.-.---- -_.-
Otber 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 wiU file motion for summary 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. ($5,277.00 as of December 31,2000).
Clay (Bie 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. Monroe County has filed its answer and will likely move for sutDl1W}' 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 have been granted, however, permits 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. Plaintiffs have filed a motion for
panial summary judgment. Monroe County will respond and cross-motion for summary judgment on
same issue, as there appear to be no facts in contention, only legal interpretations. ($5,267.00 as of
December 31,2000).
Galleon 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.
(52,480.00 as of December 31, 2000)(does not include prior Galleon Bay matters).
Ambrose _ Declaratory action claiming vested rights under ~380.0S(18) based on filing of
subdivision plats. Judge Payne issued order granting summary judgment in favor of Plaintiffs.
Monroe County, DCA, and lslamorada appealed that order to the Third District Court of Appeals.
The appenate 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, (536,678.75 as
ofDecerober 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. 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 formally rescind the. ordinances. An ordinance rescinding the prior ordinances was on last
month's BOCC agenda. Once finalized, a copy will be filed with the Court and the case will then
be dismissed as moot. (522,358.00 as of December 31, 2000).
Puyanic (new matter) - Complaint for declaratory and injunctive relief alleging commercial
ROGO violates due process. Monroe County has filed an answer denying said allegations.
3