Item F2
LAW OFFICES
3 I 7 WHITEHEAD STREET
KEY WEST, F'LO~IDA 33040
W. CURRY H^RRI~
([907-1988)
HILARY U. ALSURY
(1920-199m
HUGH U. MORGAN
.JAME;S T. HENDRICK
KAREN K. CABANAS
.J ~~O~ V. RE:GANT~
MORGAN & HENDRICK
FAX TRANSMISSION
TO: J.IM ROBERTS
MAYOR GEORGE NEUG-ENT
COMMISSIONER DIXlE SPEHAR
COMMISSIONER SONNY MCCOY
COMMISSIONER NORA WILLIAMS
COMMlSSIONER MURRAY NELSON
TIM MCGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292-454~'
872-919V /
292-346~ /
292-357~ ~
(305) 289-630'i
(305) 852-7162/ ~
(305) 289-253(('
295-3663
FROM:
KAREN CABANAS, ESQ.
DATE:
DECEMBER 17,2001
SUBJECT:
GROWTH MANAGEMENT RF.PORT
TRANSMITTER: JONl
Total number of pages including this cover sheet: 5
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P.O. 6ax I I J 7, KEYWEST. FL .:3.:304 [ $ TCLI!:F'HONE .:305 296-5675 $ FACelMILE 305 296-433 I
(,~
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K Cabanas
DATE:
December 19 - 20, 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. ($42,418.75 as of November 30,2001).
Takings 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 oflimitations was denied; Case will proceed with discovery. ($13,274.50 as of November 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. 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 detennine
liability and damages. Mediation as to damages was unsuccessful. Judge Garcia denied Monroe
County's reconsideration of statute oflimitations issues. Deadline to file Notice of Appeal on Order
Granting Liability in Favor of Plaintiffs is December 28. ($157,069.74 as of November 30, 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 pennitting requests began prior to incorporation.
Plaintifffiled 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 MaCa and the Village based on permitting delays. Only one
count remains against Monroe County and both County and Islamorada have moved for summary
judgment. ($10,649.00 as of November 30,2001).
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. Awaiting ruling on those motions.
($959.00 as of November 30,2001).
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-confonning 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 rehearing on denial of motion for
summary judgment was denied. Monroe County has filed various discovery requests and Plaintiffhas
moved for judgment on the pleadings. ($4,195.50 as of November 30,2001).
Pontin - 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 filed a motion to dismiss based
on statute oflimitations because Plaintiff was first made aware ofthe 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. Defendants' motions to dismiss are pending. ($1,897.50 as of November 30,
2001).
Moore - (old Marvin's restaurant) - Seeking declaratory relief and takings claims based on County
staffs 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 November 30,2001).
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. Case is proceeding with discovery. ($2,655.00 as ofNovember 30,
2001).
Industrial Communications & Electronics - 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). Plaintiff previously and unsuccessfully challenged moratorium while in
effect and should be barred from re-litigating those issues. ($1,665.00 as of November 30,2001).
2
Signs & 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 ofnon-confonning billboards damaged beyond 500.10 of
their value. No pending motions. ($15,002.50 as of November 30,2001).
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and S1983 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 November 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 and concurrency mandate. Judgment was entered in favor ofMonroe County on basis
that concurrency is a state-imposed mandate, not a County regulation; also based on fact that FDOT
is responsible for upgrading U.S. 1, not Monroe County and issuance of any building permits by
Momoe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
have appealed to 3fd District Court of Appeals. Pacific Legal Foundation has moved to file Amicus
brief Awaiting receipt of Plaintiffs' Initial Brief. ($7,634.00 as of November 30,2001).
Galleon Bay - Petition for Certiorari review ofBOCC's decision to deny vested rights
application, Case has been re-assigned to lower keys division. ($4,835.00 as of November 30,
2001)(does not include prior Galleon Bay matters),
Ambrose - Declaratory action claiming vested rights under ~380.05(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 1 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. Defendant's have cross-moved for summary judgment against all
Plaintiffs who failed to file supporting affidavits or have other disputed issues ownership. Hearing is
set for Dec. 19. ($42,288.75 as of November 30,2001).
Lcsick - 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.
All briefs have been filed. Oral argument is scheduled for December 18th. ($2,812.50 as of
3
November 30, 2001).
Upper Keys Citizens Association - Newly-tiled cases: (1) Appeal to Div. of Admin. Hearings of
Planning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Op.
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 pennitted. (3) Plaintiffs are also expected to file a declaratory action under
Chapter 163 challenging that the sub-station approval is inconsistent with the Comprehensive Plan
(complaint was filed with County as statutory precondition to filing in court:, but has not yet been filed
with court). ($2,902.50 as of November 30,2001).
4