Item L2
J
LAW OFFICES
HUGH .J. MORGAN
JAMES T, HI!:NORICK
KAREN K. CABANAS
uEOOE V. REGANTE
3 I 7 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
W. CURRY HARRIS
(1007 -1988l
HILARY U, ALBURY
(1920 -t gO g)
MORGAN & HENDRICK
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER NORA Wn.LIAMS
COMMISSIONER MURRAY NELSON
TIM MCGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292-454//
292-357;://
872-919~' ,
292-3466 /
(305) 289-630~ /'
(305) 852-716~ /'
(305) 289-253~
295-3663
FROM:
KAREN CABANAS, ESQ.
DATE:
ApRIL 12, 2002
SUBJECT:
GRowm MANAGEMENT REpORT
TRANSMITTER: JON!
Total number of pages including this cover sheet: 5
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REGULAR
COMMENTS:
WILL BE SENT
OVERNIGHT
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the above address VIA the U. S. Postal Service, If you do not receive all pages, please call back as soon as possible 305-296-5676, 'lbe following is our fax
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P.O. Box I I 17, KEY WEST, FL 3304 I $ TELEF'HONE 305 296-5676 $ FACSIMILE 305 295-433 I
L~J
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
April 12, 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 oflimitations. ($49,438.75 as
of March 31, 2002).
Takings 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 March 31, 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 oftheir property for an eight-year period. Petition for Certiorari review was denied by
the 3rd District Court of Appeals as a non-fmal order. Jury trial on damages is scheduled for May
28-30. ($161,089.74 as of March 31, 2002).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe in which
Plaintiffs claim they were denied building pennits for new construction. Plaintiffs have filed suit
against Islamorada and Monroe County since pennitting requests began prior to incorporation.
Plaintiff filed an application for a building permit with Monroe County prior to Village
incorporation and eventually received a pennit from Islamorada subsequent to incorporation.
Monroe County's motion for summary judgment was denied based on existence of disputed material
facts. County will pursue establishing those facts through discovery and will likely re-file for
summary judgment. ($11,864.00 as of March 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.
($1,049.00 as of March 31, 2002).
Gustinger - Case stems from code enforcement prosecution and order imposing lien. Building
permits were subsequently issued by Village of Islamorada. 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. Motion for Summary Judgment is scheduled for May 14. ($5,185.50 as of March 31,
2002).
Pontin - 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 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. Defendant Army Corps of Engineers has
removed case to federal court. Defendants' motions to dismiss are pending. Court has set oral
argument on May 15 for all pending motions. ($2,662.50 as of March 31, 2002).
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. Awaiting ruling on motion to
dismiss. ($3,670.00 as of March 31,2002).
Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to
commercial moratorium which began January 4, 1996. Monroe County is preparing to file motion
for summary judgment. ($4,072.50 as of March 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 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.
($1,777.50 as of March 31, 2002).
Signs & 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. ($15,077.50 as of March 31,2002).
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Other Matters
Taxpayers for Electrification of NoN ame 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. Case has been set for trial June, 2002. Hearing on Monroe County's Motion for
Summary Judgment is set for May 22. ($8,419.50 as of March 31, 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 3 rd District Court of Appeals. Monroe County's Answer Brief is due May 17.
($8,264.00 as of March 31, 2002).
Galleon Bay. - Petition for Certiorari review of BOCC' s decision to deny vested rights
application. Case has been re-assigned to. lower keys division. ($4,835.00 as of March 31,
2002)(does not include prior Galleon Bay matters).
Ambrose - Declaratory action claiming vested rights under g380.05(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. Court entered final summary
judgment for approximately 75 Plaintiffs. Upon entry of final written order, Defendants will appeal
to Third DCA. ($43,976.25 as of March 31, 2002).
Upper Keys Citizens Association - Two separate cases: (I) Appeal to Div. of Admin. Hearings of
Planning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Gpo
County's briefhas been submitted. Awaiting submittal ofIntervenorFKEC's brief and scheduling
of oral argument. (2) Appeal to Third DCA of circuit court dismissal of certiorari action. Awaiting
ruling on Monroe County's Motion to Dismiss appeal for lack of jurisdiction due to parallel case
seeking to litigate same issues before DOAH. ($5,430.00 as of March 31, 2002).
Toppino's - Appeal ofBOCC's decision denying re-zoning based on Navy ACQUIZ overlay zone
prohibiting new development. Re-zoning constitutes "new development" as defined by state growth
management act.
Florida Keys Citizen's Coalition - DOAH Appeal of Administration Commission's rule change
regarding use of "restored permits" for affordable housing, increasing annual residential permitting
caps, and allocation of nutrient reduction credits. Awaiting responses to discovery requests.
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Moore (NROGO Appeal) - Appeal of DCA's Final Order approving the County's recently-adopted
NROGO regulations. Final hearing has been scheduled for August. A waiting receipt of responses
to discovery requests. ($247.50 as ofMarcb 31, 2002).
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