Item G2
HUGH J. MORGAN
,JAMES T. HENDRICK
KAREN K. CABANAS
.J E:DDE: V. REG ANT!!:
LAW OFFICES
3 17 WHITEHEAD ST~EET
KEY WEST, FI..ORIDA 33040
W. CURRY HARRI::;
(1~07 -I~BB)
HILARY U. ALBUFlY
(1920 "199g)
MORGAN &. HENDRICK
FAX TRANSMISSION
TO: JlM ROBERTS
MAYOR GEORGE NEUGENT
COMMISSIONER DlXIE SPEHAR
COMMLsSIONER SONNY MCCOY
COMMISSIONER NORA WILLIAMS
COMMlSSIONER MURRAy NELSON
TIM MCGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292-4540
872-919Y ,
292-346V/
292-357r
(305) 289-6300
(305) 852-7160
(305) 289-2536
295-3663
FROM:
KAR.EN CABANAS, ESQ.
DATE:
JANTJARY 14,2002
SUBJECT:
GROWTH MANAGEMENT REpORT
TRANSMITTER: JONI
Total number of pages including this cover sheet: 5
ORIGINAL DOCUMENT(S):
x WILL NOT BE SENT WILL BE SENT
REGULAR OVERNIGHT
COMMENTS:
"!be infolmation containcd in this f.'\CSilnile me..age i~ attorney privile&cd and confidential, intended only for the LIse of the individual Of cntity muned.
above. If the reader offuis mcs&llge is not the intended recipient, you i1I\: hereby nDti:.licd that any dissemination, distribution or copy of this communication
is MCUy prohibited. If you have receivet;i thiR communic:won in error, ple~~e inuucdiately notify us bytalephone and n:tum the origim.l me!l..~age to us ilt
the abovc address VIA the U. S. PO!1la1 Service. If you do not reccive all pages. please call bilck a-~ !lOon lIS pO$Rihlc 305-296-5676. 'lhe following is ourfllX
number 305-19~4331.
P.O. Box I I 17, Ko:yWEST, FL 33041 $ 1'E:LEPHONE 305 2Sl8-567El .$ F....CSIMILE: 305 "'~El-4331
G.;l
GROWTH MANAGEMENT LITIGATION REPORJ
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
Karen K. Cabanas '(jfl.J
FROM:
DATE:
January 16.~ 17,2002
Vacation Rental~
Neumont (Federal Class Action) - Federal class action case alJeging vacation rental ordinance
was prematurely enforced and is an unconstitutional taking of Plaintiffs , properties. Following
hearing on cross-motions for SUIJllllary judgment, the Magistrate Judge issued a report and
recommendation to dismiss Plaintiffs' claims for failure to exhaust state court remedies and
lmder the abstention doctrine. Court has scheduled hearing on Plaintiffs' objections to the
Magistrate's report in February, 2002. ($42,418.75 as of December 31, 2002).
Takines Claim~
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 December
31,2002).
Shadek - Takings claim for ~570 aeres 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. Monroe County has filed a Petition for
Certiorari review with the 3rcl District Court of Appeals seeking review ofthe circuit court's order
detennining liability. Plaintiffs have filed Motion to Dismiss and County will respond as to the
eourt'sjurisdiction to review said order. ($157,069.74 as of December 31,2002).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecwnbe in which
Plaintiffs claim they were dented building permits for l1ew construction. Plaintiffs have filed suit
against Islamorada and Monroe County since' permitting requests began prior to incorporation.
Plaintiff filed an application for a building penujt with Monroe County prior to Village incorporation
and eventually received a permit from Islamorada subsequent to incotporation. Claims seek due
process/temporary taking against both MoCo and the Village based on permitting delays. Only one
count remains against Monroe County and both County and Islal.1lorada have moved for summary
judgment. ($10,649.00 as ofDccember 31,2002).
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. Awaiting ruling on those motions.
($959.00 as of December 31,2002).
Gustinger - Case stems from code enforcement prosecution and order imposing lien. Momoe
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 pennitted; as it previously
existed. The Special Master's findings were not appealed. Plaintiffs application for building pennit
was denied and not appealed. Monroe County's motion for rehearing on denial of motion for
sununary judgment was denied. Monroe County has filed various discovery requests and Plaintiff
has moved for judgment on the pleadings. Hearing is set for March, 2002. ($4,195.50 as of
December 31, 2002).
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 trces. Monroe County has filed a motion to dismiss based
on statute oflimitations because Plaintiff was first made aware of the c~nf1icting 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 Anny Corps of Engineers has
removed case to federal court. Defendants; motions to dismiss are pending. Court has set a status
hearing for Feb. 20tb. ($1;897.50 as of December 31,2002).
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 mattcr jurisdiction. ($2,950.00 as of December 31,2002).
Good - Secking declaratory relief and takings claim for -16 acre SugarloafShores property due to
commercial moratorium which began January 4; 1996. Monroe County;s motion to dismiss based
on statute oflimitations was denied. Case is proceeding with discovery. ($2,655.00 as of December
31,2002).
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 resjudicata/collatcral estoppc1 (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 December 31,2002).
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Si2DS & Billboards
Republic Media/Outdoor Systems - Declaratory action claim filed by billboard owners
challenging applicability of Post-Hurricane Emergellcy Pennitting Policy and the billboard valuation
schedule pursuant to code regulations prohibiting repair of nonooConfonning billboards damaged
beyond 50% of their value. No pending motions. ($15,002.50 as of December 31,2002).
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and g1983 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 BOeC;
case will proceed in litigation. Property owners opposing electrification were granted leave to
intervene. Case has been set for trial February 19,2002. Hearing on Monroe County's Motion for
Summary Judgment is set for Febnlary 5. ($8,089.50 as of December 31,2002).
Clay (Big PiDe Moratorium) - Complaint filed against Monroe County alleging vmious 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 regnlation; also based on fact that
FDOT is responsible for upgrading U.S. 1, not Monroe County and issuance of any building pennits
by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
have appealed to 3rd Distri.ct Court of Appeals. Pacific Legal Foundation has moved to file Amicus
brief Awaiting receipt of Plaintiffs ' Initial Brief. DCA may petition to submit an Amicus Brief on
behalf of County. ($7,634.00 as of December 31,2002).
GaUeoD 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 December 31,
2002)(does 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 ownersbip issues as to each lot at issue.
VariOllS environmental gronps 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. Defcndant's have cross-moved for summary judgment
against all Plaintiffs who failed to file supporting affidavits or have other disputed issues ownership.
Re-hcaring is set for March 4, 2002. ($42,288.75 as of December 31,2002)_
Lesick - New case pending with Division of Admin. Hearings appealing Planning Commission
resolution upholding Planning Director's letter detennining property not entitled to build-back rights
unless restored to principal residcnce_ Property is currently used as vacation rental and is on an
Offshore Island, thus is non-confonning as to current and future zoning of residential conservation.
3
All briefs have been filed. Oral argument was held December 18th. Awaiting ruling. ($2,812.50 as
of December 31,2002).
Upper Keys Citizens Association - Two separate 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) 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 ofDecernber 31,2002).
4