Item M2
LAW OFFICES
3 I 7 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
W. CURRY HARRIS
( I 00'7 -, 088)
HILARY U. ALBURY
( I 020 . I 900)
HUGH .J. MORGAN
.JAMES T, HI!:NDRICK
KAREN K. CABANAS
.JEDD~ V. REGANTE
MORGAN &. HENDRICK
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER SONNY MCCOY
COMMISSIONER NORA WILLIAMS
COMMISSIONER MURRAY NELSON
TIM McGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292~454~.
872-919Y /'
292-346~ /
292-357'/ /
(305) 289-630~ /
(305) 852-716i/'/
(305) 289-253tf
295-3663
FROM: KAREN CABANAS, ESQ.
DATE: MARCH 15,2002
SUBJECT: GRowm MANAGEMENT REpORT
TRANSMITTER: JONI
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is strictly prohibiWd. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at
the above address VIA the U. S Postal Service, If you do not receive all pages, please call back lIB soon as possible 305-296,5676. The following is ourfax
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P.O, Box I I 17, KEY WEST, FL 3304 I $ TELEPHONE 305 296-5676 $ FACSIMILE 305 206-433 I
GROWTH MANAGEMENT LITIGA nON REPORT
TO:
Boec; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
March 20, 2002
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, Awaiting
ruling on whether the Judge will adopt the Magistrate's recommendation to dismiss all claims
under jurisdictional doctrines of abstention and ripeness, If all claims are dismissed, Plaintiffs may
appeal to the 11 th Circuit federal court or: may attempt to file a new cause of action in state court.
However, such claims should now be barred by the statute of limitations, ($49,393,75 as of
February 28,2002).
Takin2S. Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed, Status conference has been set for April 22. ($13,274,50
as of February 28, 2002),
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. Petition for Certiorari review was denied by
the 3rd District Court of Appeals, Jury trial on damages is scheduled for May 28-30, ($158,502.24
as of February 28, 2002),
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 requp.sts began prior to incorporation.
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, Monroe County's
motion for summary judgment was denied based on existence of disputed material facts, Countywill
pursue establishing those facts through discovery and will likely re~file for summary judgment.
($11,751.50 as of February 28,2002).
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.
($1,004,00 as of February 28,2002).
fY} . cl.
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. Awaiting ruling on Plaintiff's motion for judgment on the pleadings,
($4,195.50 as of February 28,2002).
Pout in - 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 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, Defendants' motions to dismiss are pending, Court has set a status hearing for
March 18, ($2,032.50 as of February 28,2002).
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. Awaiting ruling on motion to dismiss.
($3,602,50 as of February 28, 2002),
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 oflimitations was denied. Case is proceeding with discovery. ($2,655.00 as of February 28,
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 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. Awaiting ruling on motion to dismiss.
($1,665,00 as of February 28,2002),
2
Silms & 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
their value. No pending motions. ($15,002.50 as of February 28,2002).
Other Matters
Taxpayen 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 June, 2002, Hearing on Monroe County's Motion for Summary
Judgment is set for May 22, ($8,202,00 as of February 28,2002),
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 FDOT
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. Pacific Legal Foundation has moved to file Amicus
brief County has filed motion for stay pending ruling by U. S, Supreme Court in Lake Tahoe
temporary moratorium case - Court will rule on limited question of whether a temporary moratorium
can ever result in a temporary taking, ($8,039.00 as of February 28,2002).
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 February 28,
2002)(does not include prior Galleon Bay matters),
Ambrose - Declaratory action claiming vested rights under ~3 80, 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, Defendant's have cross-moved for summary judgment against all
Plaintiffs who failed to file supporting affidavits or have other disputed issues ownership. ($42,941,25
as of February 28, 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-Op,
Awaiting filing of record and Initial Brief (2) Appeal of circuit court dismissal of certiorari action,
($4,005,00 as of February 28,2002).
3
Toppino's - Appeal of planning commission decision denying fe-zoning based on Navy overlay zone
prohibiting new development. Re~zoning constitutes "new development" as defined by state growth
management act.
4