Item F2
9ROWTH MANAGEMENT LmGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATR
February 21 - 22,2001
V.cation 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 3td 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 text changes were made at the third reading. ($29,538.75 as of January
31,2001).
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 grandfatheted
based on oecupationallicenses. 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 merely a tax. ($468.00 as of 1anuary 31, 200 I).
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 cenain factual findings and conclusions of law are
inconsistent with the administrative record below. No ruling yet on whether Judge Payne will
conduct are-hearing.
TakiDD 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 Sununary 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. ($9,745.00 as ofJanuary 31,2001).
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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 21, 2001. Momoe COWlty took
taking Plaintiffs' depositions January 22 and parties are completing discovery in preparation for trial.
($103,309.75 as ofJanuary 31,2001).
Tropic Leisure Recreation - Takings claims regarding propeny on Upper Matecwnbe 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 summary judgment since the majority ofPlaintitr s claims
occulTed subsequent to incorporation. ($2468.00 as ofJanuary 31, 2001).
PhelpllBardin - Claim brought in federal court for due process and inverse condenmation based on
code enforcement proceedings that resulted in a lien on Plaintiffs' property. Monroe County has 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. ($859.00 as of January 31, 2001).
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 hunicane. Under 50010 rule, said structure could
not be pennitted as it previously existed. The Special Master's findings were not appealed. Plaintiffs
application for building perynit 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).
Si~ns & BiJlboan;b
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 50010 of
their value. Monroe County is seeking discovery requests regarding existing billboards and the work
than has been done without pennits. ($13,872.00 as of January 31, 2001).
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
gtll. Plaintiffs have been granted extension of time to file Initial Brief on porch & deck appeal.
($4,840.00 as oflanuary 31,2001).
Perry's (Key Largo) - Declaratory action almost identical to complaint filed by Republic Media &.
Outdoor Systems challenging Post-Hunicane 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 County may move
to dismiss action, pending outcome of code enforcement case (no final order has been issued yet.
(S1345.oo as ofJanuary )),2001).
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Other Matten
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 will 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. ($5962.00 as of January 31,2001).
Clay (Big Pille Moratorium) - Complaint filed against Monroe County alJeging various claims
(takings, vested rights, etc.) based on the de facto building moratorium on Big Pine due to the traffic
level of service. Monroe C<>unty has filed its answer and will likely move for summary judgment
based on failure to join indispensable parties (DCA and USFWS) and adoptk>n of ordinance adopting
Chapter 163 concurrency requirements. All county regulations have been complied witb (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. Plaintiff's have filed a motion for
partial 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
January 31,2001).
GaUeon Bay - Plaintiff bas 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 ofJanuary 31, 2001}(does not include prior Galleon Bay matters).
Ambrose - Declaratory action claiming vested rights under ~380.05(18) based on filing of
subdivision plats. Judge Payne issued order granting summary judgment in favor of Plaintiffs.
Momoe County, DCA, and lslam.orada appealed that order to the Third District Court of Appeals.
The appellate court granted Plaintiffs' Motion to Dismiss for Lack of Jwisdiction based on the
assertion 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 pennitting and purchase plan. A proposed Statement of
Compliance setting forth the plan was on last month's BOCC agenda. Plaintiff's bave Dot yet
responded to the plan which Defendants anticipate filing on or about December 15th. ($3~678. 75 as
ofJanuary 31,2001).
Penooal Watel'cl'aft 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 discriminatin8 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 fOT 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 was on last
month's BOCC agenda. Once finalized, a copy will be filed with tbe Court and the case will then
be dismissed as moot. (522,35&.00 as of January 31,2001).
Puyaoic (new matter) - Complaint for declaratory and injunctive relief alleging commercial
ROGO violates due process. Monroe County has tiled an aDswer denying said allegations.
3