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Item F2 GROWTH MANAGEMENT LITIGATION REPORT TO: BOCC; Jim Hendrick; Tim McGarry; Jim Roberts FROM: Karen K. Cabanas DATE: November 14 ~ 15, 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 dismiss Plaintiffs' claims for failure to exhaust state court remedies and under the abstention doctrine. Court has scheduled hearing on Plaintiffs' objections to the Magistrate's report in February, 2002. ($42,261.25 as of October 31,2001). Takines 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 summary judgment based on statute of limitations was denied; Case will proceed with discovery. ($13,274.50 as of October 31, 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. Judge Garcia ruled in favor of Plaintiffs on all takings claims, declaring Monroe County liable for denying Plaintiffs all economic use of their property for an eight-year period. Case was bifurcated to separately determine liability and damages. Mediation as to damages was unsuccessful. Judge Garcia denied Monroe County's reconsideration of statute of limitations issues. Case will proceed with discovery as to damages phase. ($154,212.24 as of October 31,2001). 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's motion for summary judgment was denied as to count I, but granted as to counts II and III. Case is proceeding with discovery. Plaintiff filed an application for a building permit with Monroe County prior to Village incorporation and eventually received a permit from Islamorada subsequent to incorporation. Claims seek due process/temporary taking against both MoCo and the Village based on permitting delays. Case is proceeding with discovery and has been set for trial October 2002. No motions pending at this time. ($10,379.00 as of October 31, 2001). PhelpslIlardin - 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 f. J.. 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. ($959.00 as of October 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. Plaintiff's application for building permit was denied and not appealed. Monroe County's motion for summary judgment based on res judicata/collateral estoppel (prior final adjudication of issues/claims) was denied. County has filed motion for rehearing. ($3,678.00 as of October 31,2001). Pontin - Newly filed case alleging temporary and permanent taking of property due to allegedly conflicting regulations of County and ACOE/DEP 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 limitati ons 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. Defendant Army Corps of Engineers has removed case to federal court. ($1,897.50 as of October 31,2001). Moore - (old Marvin's restaurant) - 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. ($2,950.00 as of October 31,2001). Good - Seeking declaratory relief and takings claim for ~ 16 acre Sugarloaf Shores property due to commercial moratorium which began January 4, 1996. Monroe County's motion to dismiss based on statute of limitations was denied. ($1,845.00 as of October 31,2001). Industrial Communications & Electronics - Newly-filed federal district court case alleging denial of due process, equal protection and inverse condemnation based on prior wireless tower moratoria. Monroe County has filed motion to dismiss based on res judicata/collateral estoppel (issue & claim barred by prior court ruling). Plaintiffpreviously and unsuccessfully challenged moratorium while in effect and should be barred from re-litigating those issues. Sif!ns & 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 50% of 2 their value. Case is proceeding with discovery. No pending motions. ($15,002.50 as of October 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 Media appeal. Monroe County has filed motion to dismiss for failure to prosecute (no pleadings filed within past 12 months.) Plaintiff's counsel has agreed to enter voluntary dismissal prior to hearing. ($1,403.50 as of October 31,2001). Other 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. Proposed settlement agreement was denied by BOCC; case will proceed in litigation. Property owners opposing electrification were granted leave to intervene. Case has been set for trial in February 2002, Intervenors & County will likely file motion for summary judgment ($8,089.50 as of October 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 and concurrency mandate. Judgment was entered in favor of Monroe County on basis that concurrency is a state-imposed mandate, not a County regulation; also based on fact that FOOT is responsible for upgrading U.S. 1, not Monroe County and issuance of any building permits by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs have appealed to 3rd District Court of Appeals. Awaiting receipt of Plaintiffs' Initial Brief ($7,544.00 as of October 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). Plaintiffs have attempted to reinitiate case by filing notice that case is at issue (ready for trial) and sent correspondence to Judge Garcia requesting recusal. Monroe County sent correspondence in objection due to pendency ofCounty's motion to dismiss for lack of prosecution and failure to properly move for recusal by filing motion. Hearing on Motion to Dismiss is set for Dec. 13. ($3,552.50 as of October 31, 2001)(does not include prior Galleon Bay matters). Ambrose - Declaratory action claiming vested rights under 9380.05 (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. Plaintiffs have recently filed renewed motion for entry of final summary judgment Motion will need to be set for hearing to resolve pending ownership issues. Plaintiffs were ordered to prove ownership for a single plaintiff, but have filed affidavits as to 102 properties. Hearing is set for Dec. 19. ($39,746.25 as of September 30,2001). 3 Lesick - New case pending with Division of Admin. Hearings appealing Planning Commission resolution upholding Planning Director's letter determining property not entitled to build-back rights unless restored to principal residence. Property is currently used as vacation rental and is on an Offshore Island, thus is non-conforming as to current and future zoning of residential conservation. Initial and Answer briefs have been filed. Once Appellant's reply brief is filed, oral argument will be set. ($2,700.00 as of October 31,2001). Upper Keys Citizens Association - Newly-filed cases: (1) Appeal to Div. of Admin. Hearings of Planning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Gpo Awaiting filing of record and Initial Brief (2) Petition for Certiorari in circuit court raising due process claims for failure of commissioner to abstain from voting after request by UKCA. Case was dismissed by Judge Garcia for lack of jurisdiction. Where there is a direct method of appeal, certiorari review is not permitted. (3) Plaintiffs are also expected to file a declaratory action challenging that the sub-station approval is inconsistent with the Comprehensive Plan. ($1,620.00 as of October 31,2001). 4