Item L2
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
May 13, 2002
Vacation Rentals
Neumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was
prematurely enforced ~d is an unconstitutional taking of Plaintiff's' 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. ($49,663.75 as of April 30, 2002).
Takings Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Cross-motions for Summary Judgment are scheduled for
June 6 and, ifnot resolved thereby, mediation will be held and trial has been set for September, 2002.
($16,222.00 as of April 30, 2002).
Sbadek - 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 as a non-final order. Jury trial on damages has been continued, on
Plaintiffs' motion, for September, 2002. ($161,479.74 as of April 30, 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 Momoe County since permitting 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. Countywill
pursue establishing those facts through discovery and will likely re-file for summary judgment.
($11,954.00 as of April 30, 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.
($1,049.00 as of April 30, 2002).
L..2-
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
conderrmation 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. Cross-Motions for Summary Judgment are scheduled for May 24. ($8,380.50 as of April
30, 2002).
Pontin - 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 offunitations 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. ($2,707.50 as of April 30, 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.
($3,670.00 as of April 30, 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. ($4,545.00 as of April 30, 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. Oral argument on Monroe County's
motion to dismiss will continue in late-Mayor early-June. Awaiting notice of hearing from court.
($3,975.00 as of April 30, 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 April 30, 2002).
2
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 June, 2002. Hearing on Mom-oe County's Motion for Summary
Judgment is set for May 22. ($8,487.00 as of Apri130, 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 3M District Court of Appeals. Monroe County's Answer Brief is due May 17.
($8,264.00 as of April 30, 2002).
Galleon Bay - Petition for Certiorari review ofBOCC's decision to deny vested rights application.
Case has been re-assigned to lower keys division. ($4,925.00 as of April 30, 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 ofa 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 offinal written order, Defendants will appeal to Third DCA.
($44,853.75 as of April 30, 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.
County's brief has been submitted. Awaiting submittal of Intervenor FKEC, s brief and scheduling of
oral argument. (2) Appeal to Third DCA of circuit court dismissal of certiorari action. Awaiting
rn1ing on Monroe County's Motion to Dismiss appeal for lack of jurisdiction due to parallel case
seeking to litigate same issues before DOAH ($5,587.50 as of Apri130, 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.
3
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.
($112.50 as of Apri130, 2002).
Moore (NROGO Appeal) - Appeal of DCA' s Final Order approving the County's recently-adopted
NROGO regulations. Final hearing has been scheduled for August. Awaiting receipt of responses to
discovery requests. ($697.50 as of Apri130, 2002).
4
LAW OFFICES
W. CURRY HARRIS
( I Q07 - I geSl
MILAI'lY U. ALBUI'lY
t I 920 - 1 999)
HuC;1ol .J, MOI'lGAl-l
..JAMIi:5 T. H~NtlR'CK
KAAEl-l K. CABANAS
..J~tltlE V, RE:G"'NT~
MORGAN &. HENDRICK
.3 I 7 WH ITEH ~O STREET
KEY WEST, FLORIDA 33040
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER NORA WILLIAMS
COMMISSIONER MURRAY NELSON'
TIM MCGARRY
CLERK'S OFFICE, B):~LE DlSANTIS
FAX #: 292-454~'
292-357'f~ /.
872-919~ / ,
292-346 /
g:~~ ~:~~~~~~/'"
(305) 289-253~
295-3663
FROM:
KAREN CABANAS, ESQ.
DATE:
MAy 13, 2002
SUBJECT:
GRowm MANAGEMENT REpORT
TRANSMITTER: JONI
Total number of pages including this cover sheet: 5
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