Item G2
LAW OFFICES
.3 I 7 WHITI::He:AO STREET
KEY WEST, FLORIDA 33040
W. CU~RY HARRIS
II g07 - IGeel
HILARY U. ALeuRY
( I QZO - I ggg)
HUGH ..J. MORGAtol
.J,u4!!.s T. HENDRICK
IV.R&;N K, CABAtolAS
.JItDDE V. RECANT&;
MORGAN & HENDRICK
FAX TRANSMISSION
TO: JIM ROBERTS
M""YOR GEORGE NEUGENT
COMMlSSIONtR DIXIE SPEHAR
COMMISSIONER SONNY McCoY
COMMISSIONER NORA Wn.LlAMS
COMMlsSIOmR MURRAY NELSON
TIM: MCGARRY
CLERK'S OFFICE, BELLJ: DESANTIS
FAX #: 292-4544
872-9195
292-3466
292-3577
(305) 289-6306
(305) 852-7162
(305) 289-2536
295-3615
FROM: KAREN CABANAS, ESQ.
DATE: JVNE 19, 2001
SUBJECT: GROWTH MANAGEMENT REpORT
TRANSMITTER: JON!
Total number of pages including tbis cover sheet: 4
ORIGINAL DOCUMENT(S):
x WILL NOT BE SENT WILL BE SENT
REGULAR OVERNIGHT
COMMENTS:
The WOl'IlI31iool conlAinoo in thia &aimiJe lDeUll&e i5 11110lDll) privileged ;and ~~ iD~ Ollly for 1hc Ute oCtllc: iDdMclual 01' cnlity _d
above. lf1ll.telder ofthi.~ mu!&gc iJ not the lateaded recipieDl,. you lire hereby DOtificd 1bi\t;&D)' di5UD\in.UiOll, dimibulion or coPy ofthill cocmmmiC8liOll
illIrict1yprohibitcd. lfY\l'lIr.l.~ reteiYed1hit Coml'llunication in mor, pkuc immo:diatdy ootify wby\.tCphuDundre\\om the orieitlal~ee14l1S&I:
1116 ~\/ll addten V1Athc U. S. POItal SaM~. If you do ftO\ J6Cejv6 aU page<, "'ea.... callback U.DOIl" poaoible )OS-296-S676. TIM followinei$ourfax
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P.O. Sc>c I I 17, K!:YWUT. FL 3.3041 $ TELV'HONE 305 ZO$-Se7e $ f'ACSlMtLf; 305 208-433 t
<a,j.
GROWm MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick~ Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
June 20-21, 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. Following
hearing on cross-motions for summary judgment, the Magistrate Judge issued a report and
reconunendation to dismiss Plaintiffs' claims for failure to exhaust state court remedies and under
the abstention doctrine. Plaintiffs have filed their objections to the report and Mom-oe County has
filed its response to those objections. The judge will then review the Magistrate's report and the
objections and issue an order. ($36,887.25 as of May 31,2001).
Handle - 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 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 May 31,2001).
Takin2s Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
coun when federal claims were dismissed. Case has been bifurcated to separately decide issues of
liability and damages. Monroe County's motion for summary judgment based on statute of
limitations was heard. Judge Garcia ardered the parties to file briefs on the applicability of the
equitable tolling doctrine. (The federal court dismissed this claim without remand and over four years
have passed, barring filing ofthis claim. Plaintiffs argue that equitable tolling of the limitations period
should apply because they timely asserted their claims in the wrong forum). ($11,519.50 as of May
3 1, 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 roling. If Monroe 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 May 31,2001).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe in which
Plaintiffs claim they were denied building permits for new constroction. Plaintiffs have filed suit
against Islamorada and Monroe County since permitting requests began prior to incorporation.
Monroe County has filed a motion for summary judgment on the grounds that the ~ority of
Plaintiff's claims occurred subsequent to incorporation and all permitting liability and authority lies
with Islamorada. ($3677.00 as of May 31, 2001).
PhelpslHardin - 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. ($85900 as of May 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 reconstnJct 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 pennit 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). ($390.00 as of May 31,2001).
Poulin - Newly filed case alleging temporary and permanent taking of property due to allegedly
conflicting regulations of County and ACOEIDEP wherein each required the other's prior approval
before issuing permits to fill land & plant trees. Monroe County has tiled a motion todismiss based on
statute oflimitations because Plaintiffwas first made aware of the conflicting regulations in 1984 and
has also failed to exhaust administrative remedies. Claims were previously filed and dismissed in 1985
for failure to seek administrative remedies. ($156000 as of May 31,2001).
Moore - (old Marvin's restaurant) - Newly filed case seeking declaratory relief and takings claims
based on County staff's interpretation and application of floodplain regulations. Motion to Dismiss
has been filed based on failure to exhaust administrative remedies (Code provides specific procedures
for appealing such interpretations) and failure to obtain a final decision from the County regarding the
application of said regulations through the administrative process. Under established law, only the
DOCC is authorized to issue a "final" decision for purposes of satisfYing the ripeness doctrine - a
prerequisite for subject matter jurisdiction. ($1560.00 as of May 31, 2001).
SieRS & Billboards
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. Momoe County is seeking discovery requests regarding existing billboards and the work
than has been done without pennits. ($13,774.00 as of May 31,2001).
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 reversed
the Planning Commission's resolution as to the sign appeal. Monroe County has tiled its Answer
Brief as to the deck appeal and is awaiting scheduling of oral argwnent. (55,600.00 as of May 31,
2001).
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 of the Republic
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Media appeal. ($1345.00 as of May 31,2001).
Other Matters
Taxpayers for Electrifieation of No Name Key - Declaratory, vested rights, and ~1983 claims
challenging Monroe County's policy that installing commercial electric selvice to No Name Key is
prohibited by the 2010 comprehensive plan. Proposed settlement agreement was denied by BOCC ;
case will proceed in litigation. Property owners opposing electrification have rued a motion to
intervene which has been set for hearing September 5, 200t. ($7,747.50 as of May 31. 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
were submitted~ awaiting ruling by Judge Taylor. ($7158.50 as of May 31, 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 May 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 swmnary judgment in favor of Plaintiffs. 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 cowt by the defendants (including Monroe County)
which raises objections to the original order, including that the relief granted is beyond the scope of
that requested and that there are inconsistencies in the listed Plaintiffs and the County's property
record cards. Plaintiffs have responded by filing a motion for entry of final judgment which will be
heard on June 25th. Richard Grosso, Esq. has filed a motion to intervene on behalf of environmental
groups. ($37,088.25 as of May 31, 2001).
Penonal WAtercraft Industry ASIDC, - Complaint for Injunctive and Declaratory Relief
alleging watercraft restriction zones Ordinance are unconstitutional under commerce clause and
supremacy clause. Monroe County repealed its ordinances due legislation prohibiting such
regulations and the parties have filed a Joint Stipulation of Dismissal. - case will now be closed.
($22,514.00 as of May 31.2001).
Industrial Communications & Electronics - New complaint challenging resolution imposing
temporary moratorium on processing of permit applications for communication towers exceeding
100 feet. Following hearing and submittal of briefs, Judge Payne issued an order upholding the
moratorium (SI21S.00 as of May 31,2001).
3