Item F2
LAW OFFicES
j I '7 WHITEHEAD STREET
KEY WEST. FLOFtIOA 33040
W; Gt:lRRY HARRIS
(1907 -Igee)
Hlt.ARY U. AL.eURY
( I 920 - I 999)
HUGH J, MG~AN
JAM~S T. HENDRICK
KAREN K. CABANAS
JEOOE V. RECANT!:
MORGAN &. HENDRICK
FAX TRANSMISSION
TO: JiM ROBERTS
MAYOR GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER SONNY MCCOY
COMMISSIONER NORA WiLLIAMS
COMMISSIorttB. MUIUlAY NELSON
TIM MCGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292~454~
sn-919V/
292,,3466/ /
292-3S71;' ~
(305) 289~630~/
(305) 852-7161'" ./
(305) 289-253V
295-3615
FROM: KAREN CABANAS, ESQ.
DATE: AUGUST 13, 2001
SUBJECT: GROWTH MANAGiMENT REpORT
TRANSMITTER: JON!
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P.O, BOX I I J 7, !(r;yWESf, F\, 3<'1041 $ n"EPHONE 3615 2ge-ee7e $ rAe5lMti: 39S 2Qe-4aa I
;::2..
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
August 15 = 16,2001
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
recommendation to diSfillSS PlaifititlS' claims fof failure to exhauSt State court remedies and under
the abstention doctrine. Upon receipt of Plaintiffs' objections to that report and Monroe
County's response, Judge Paine issued an order remanding the matter back to the Magistrate
Judge to make specific factual findings in support of her recommendation to dismiss all of
Plaintiffs' claims. ($40,416.75 as ofJuly 31,2001).
Handte = Plaintiffs filed a voluntary dismissal of their claims in April, 2001. Case will be closed.
There may still be an active code enforcement case. ($624.00 as ofJuly 31,2001).
Takin$Js Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Monroe County's motion for sumnwy judgment based on
statuteoflimitationswas denied; Case will proceed With discovery. (S13,274.50as of July 31, 2001).
Shadek" Takings claim for ~570 acres of North Key Largo property based on the 1980's Major
Development Moralotium. Trial Was held February 21, 22 and March 13. Judge Garcia ruled in
favor of Plaintiffs on all takings claims, declaring Monroe County liable for denying Plaintiffs aU
economic use of their property for an eight year period. Case was bifurcated to separately detennine
liability and damages - potentially reaching $5 to 6 million. Our appellate co-counsel has indicated
that the order is appealable at this stage and the notice of appeal will be timely filed by August 24.
Monroe County will also file motions to extend rules of procedure to those applicable to tinai orders.
This will extend time frame for drafting briefs. We win also file a motion to transmit the record to
the appellate court; otherwise, the record is not transmitted in appeals of non-final orders. There is
also an executive session scheduled for Sept. 5 to discuss damages, although the filing of the notice of
appeal operates as an automatic stay of all trial court proceedings, including the order directing
mediation on the issue of damages. ($149,446.74 as of July 31,2001).
Tropic Leisure Recreation = Takings claims regarding property on Upper Matecurtibe in which
Plaintiffs claim they were denied building permits for new construction. Plaintiff's have filed sUit
agaifisl lSliull6rilda and Monroe County since pennitting requests began prior to incorporation.
Monroe County's motion for summary judgment was denied as to count I, but granted as to counts n
and In. Case is proceeding with discovery. Plaintiff filed an application for a building pennit with
Monroe County prior to Village incorporation and eventually received a permit from Islamorada
subsequent to incorporation. Claims seek temporary taking against both MoCo and the Village based
on permitting delays. ($4,301.00 as ofJuly 31, 2001).
PbelpslHardin - 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. Awaiting ruling on those motions.
($85900 as ofJuly 31,2001).
Gustinger - Case stems from code enforcement prosecution and order imposing lien. Monroe
County filed suit to collect monies due under lien. Property owner counter-claimed 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. Plaintiffs application for building permit
was denied and not appealed. Monroe County's motion for summary judgment has been scheduled
for October 3. ($1,248.00 as ofJuly 31,2001).
Pontin - Newly filed case alleging temporary and pennanent taking of property due to allegedly
conflicting regulations of County and ACOEJDEP wherein each required the other's prior approval
before issuing permits to fill land & plant trees. Monroe County has filed a motion to dismiss based
on statute of limitations because Plaintiff was 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. ($1560.00 as ofJuly 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
BOCC is authorized to issue a "final" decision for purposes of satisfying the ripeness doctrine - a
prerequisite for subject matter jurisdiction. Case is proceeding with discovery. ($2,457.00 as ofJuly
31, 2001).
Shms & Billboards
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 SODA>> of
their value. Monroe County's motion to compel complete answers to its discovery requests and
motion for cross-injunction prohibiting further construction/repairs without permits is scheduled for
August 22. ($14,008.00 as ofJuly 31,2001).
2
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. Oral argument on deck appeal was held
July 24; awaiting ruling from Judge. ($6,029.00 as of July 31,2001).
PeITY'S (Key Largo) - Declaratory action almost identical to complaint filed by Republic Media &
Outdoor Systems challenging Post-Hurricane Emergency Permitting Policy and h's application to
billboards. Temporary injunction has been automatically dissolved due to dismissal ofthe Republic
Media appeal. Monroe County has filed motion to dismiss for failure to prosecute (no pleadings filed
within past 12 months.) ($1345.00 as ofJuly 31,2001).
Other Matters
Tupayen 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. Proposed settlement agreement was denied by BaCC;
case will proceed in litigation. Property owners opposing electrification were granted leave to
intervene. ($7,747.50 as ofJuly 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. ($7,431.50 as of July 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. Monroe County has filed motion to dismiss for failure to prosecute (no
pleadings filed within past 12 months). ($2,480.00 as of July 31, 2001Xdoes not include prior
Galleon Bay matters).
Ambrose - Declaratory action claiming vested rights under S380.05(18) based on filing of
subdivision plats. Pursuant to summary judgment proceedings and his previous orders, Judge Payne
ordered that Plaintiffs prove ownership of a single Plaintiffs' lot so that legal issues may be appealed
rather than spend extensive time in trial court litigating ownership issues as to each lot at issue.
Various environmental groups were also granted leave to intervene and will now have standing to file
briefs on appeal. Still awaiting Plaintiffs' filing of appropriate discovery requests to prove ownership
of single lot, as ordered. ($39,408.75 as ofJuly 31,2001).
3
AUG-22-01 10,24 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516
PAGE
1/1
STEVEN M. GOLDSMITH
LA W OFFICES
5355 TOWN CENTER ROAD #801
BOCA RATON, FL 33486
5611391-4900