Item F2
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC~ Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
May 16-17,2001
Vacation Rentals
Neumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance
was prematurely enforced and is an unconstitutional taking of Plaintiffs' properties. The
following motions were heard on Apri1121b: Cross-motions for summary judgment on premature
enforcement, Plaintiffs' motion for summary judgment on invalid enactment claim, and Monroe
County's motion for summary judgment on various cmmts based on ripeness (must seek taking
claims in state court before federal), res judicata (based on 3M DCA's denial of motion for stay in
Rathkamp) and abstention (federal courts should abstain from exercising jurisdiction over
constitutional claims based purely on alleged state law violations). ($36,692.25 as of April 30,
2001 ).
Bandte - 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. Momoe 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. ($624.00 as of April 30, 2001).
Takin~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. Cross-motions for summary judgment have been re-scheduled forMay 31st.
Monroe County's motion is based on statute of limitations (federal court dismissed this claim
without remand and over four years have passed, barring filing of this claim) ($1O,291.00 as of
April 30, 2001).
Shadek - Takings claim for -570 acres of North Key Largo property based on the 1980's Major
Development Moratorium. Trial was held February 21; 22 and March 13. Post-trial briefs and
proposed findings have been filed and we are now awaiting Judge Garcia's ruling. If Momoe
County is found liable, the second phase of trial will be set to conduct a jury trial on damages -
potentially reaching $5 to 6 million. ($148,374.24 as of Apri130, 2001).
Tropic Leisure Recreation - Takings claims regarding property 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 pennitting requests began prior to incorporation.
Monroe County win likely file motion for summary judgment since the majority of Plaintiff's claims
occurred subsequent to incorporation. ($2702.00 as of Apri130, 2001).
Phelps/Hardin - 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
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 April 30, 2001).
Gustinger - Claim for declaratory relief and inverse condemnation based on code enforcement
proceedings. Plaintiffwas found in violation of various code provision for failure to reconstruct or
demolish a non-confonning structure damaged by hurricane. Under 50% role, 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 Conunission) and res judicata (cannot re-litigate factual findings already
made by Special Master and not appealed). ($39.00 as of April 30, 2001).
Siens & BiDboards
Republic Media/Outdoor Systems - Declaratory action claim filed by billboard owners
challenging applicability of Post -Hwricane Emergency Permitting 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. ($13,969.00 as of April 30, 2001).
Stoky -- Plaintiffs have filed two separate appeals of Planning Commission'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. Division of Administrative Hearings judge reverse
the Planning Commission's resolution as to the sign appeal. Monroe County has filed its Answer
Brief as to the deck appeal. ($5,600.00 as of April 30, 2001).
Perry's (Key Largo) - Declaratory action abnost 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 oftbe Republic
Media appeal. ($1345.00 as of April 30, 2001).
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and 91983 claims
challenging Monroe County's policy that installing commercial electric service to No Name Key is
prohibited by the 2010 comprehensive plan. Proposed settlement agreement was denied by BOCC ;
case will proceed in litigation. ($7,747.50 as of April 30, 2001).
Clay (Big 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. Cross-motions for summary judgment were heard on May 11. Proposed orders are
to be submitted by May 21. ($5,325.50 as of April 30, 2001).
Galleon Bay - Petition for Certiorari review ofBOCC' s decision to deny vested rights application.
Monroe County filed its responsive pleading. No hearing has been set; case has been transferred to
lower keys division. ($2,480.00 as of April 30, 2001)( does not include prior Galleon Bay matters).
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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.
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 pennitting and purchase plan. A proposed. Statement of
Compliance was submitted to the court by the defendants (including Monroe County). Plaintiffs
have not yet responded to the Defendant's proposed plan. ($36,737.25 as of April 30, 2001).
Personal Watercraft Industry Assoe. - Complaint for Injunctive and Declaratory Relief
alleging watercraft restriction zones Ordinance are unconstitutional W1der commerce clause and
supremacy clause. The Florlda 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 I, 2000. Monroe County was granted a stay to repeal
the challenged ordinances and did so. Momoe County has now filed a Suggestion ofMootness
based on the ordinance repealing the challenged ordinances. Awaiting ruling. ($22,514.00 as of
April 30, 2001).
Puyamic - Complaint for declaratory and injunctive relief alleging commercial RaGa violates
due process. Monroe County has filed an answer denying said allegations. Settlement
agreement was approved by BOCC. Motion to Intervene has been filed by third-party. Parties
will likely object on grounds that settlement has already been reached and intervention is
untimely. ($50.00 as of April 30, 2001).
Industrial Communications & Electronics - New complaint challenging resolution imposing
temporary moratorium on process of permit applications for communication towers exceeding
100 feet. Complaint seeks declaratory action, temporary and pennanent injunctive relief and writ
of mandamus. Complaint alleges that resolution is invalid because it was not enacted pursuant to
public notice requirements of Chapter 166. Monroe County's motion to dismiss was heard and
Judge Payne order the parties to suhmit additional legal memoranda which has been filed.
Awaiting ruling. ($390.00 as of April 30, 2001).
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