Item M2
GROWTH MANAGEMENT LITIGATION REPORT
DATE:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
Karen K, Cabanas t1l;
June 18,2002
TO:
FROM:
Vacation Rentals
Neumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was
prematurely enforced and is an unconstitutional taking o fPlaintiffs · properties. Awaiting ruling on
whether the Judge will adopt the Magistrate's recommendation to dismiss all claims under
jurisdictional doctrines ofabstention and ripeness. Ifall claims are dismissed, Plaintiffs may appeal
to the llUl Circuit federal court or may attempt to file a new cause of action in state court. Those
claims should now be barred by the statute oflimitations. ($49,753.75 as of May 31, 2002).
Takines 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 were heard June
6. The Court has asked the parties to provide additional memoranda oflaw and will rule following
receipt of all documents, The Court has also ordered that mediation be held by the end of July 2002
and trial has been set for September, 2002. ($17,407.00 as of May 31, 2002).
Shadek - Takings claim for -570 acres of North Key Largo property based on the 1980's Major
Development Moratorium. Trial was held Febnlary 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 3'd District Court of Appeals as a non-final order. Jury trial on damages has been continued, on
Plaintiffs' motion, to September 2002. ($162,102.24 as of May 31,2002).
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 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 permit from Islamorada subsequent to incorporation, Monroe County's
motion for summary judgment was denied based on existence of disputed material facts, County
wi11 pursue establishing those [acts through discovery and wi111ikely re-file for sununary Judgment,
($12,021.50 as of May 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
m-~
filed a motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement ordeni and
because Plaintiffs' similar claims are still pending in state court. Awaiting ruling on those motions.
($1,049.00 as of May 31, 2002),
Gustineer - Case stems from code enforcement prosecution and order imposing lien. Building
pennits were subsequently issued by Village of lslamorada. Monroe COWlty filed snit 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. Cross-Motions for Summary Judgment were heard May 24. Awaiting ruling.
($10,840.50 as of May 31, 2002).
Pontin - Case alleging temporary and permanent taking of property due to allegedly conflicting
regulations of COWlty and ACOE/DEP wherein each required the other's prior approval before
issuing pewits to fiU 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 regnlations 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. Oral argument was held
May 15 on all pending motions. Awaiting ruling. ($3,322.50 as of May 31,2002),
Moore - (old Marvin's restaurant) - Seeking declaratory relief and takings claims based on County
staffs inteIpTetation 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 diSlniss.
($3,670.00 as of May 31, 2002).
Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores propeny due to
commercial moratorium which began January 4, 1996. Monroe County is preparing to file motion
for summary judgment. ($4,545.00 as of May 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, Oral argument on Monroe County's
motion to dismiss was continued by the Court, Awaiting notice of hearing from court, ($3,975.00
as of May 31, 2002).
Si2DS & 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
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beyond 50% of their value. No pendlng motions. See Memorandum sent to T.McGarry regarding
legislative amendments to applicable statutes and request for staff to prepare proposed settlement
plan. Plaintiffs have moved Court to schedule mediation. (S 15,977.50 as of May 31. 2002).
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 December 2002. Hearing on Monroe County's Motion for
Summary Judgment was heard May 22. Special Master's report recommends denying motion, but is
based on incorrect factual findings. Monroe County has filed its exceptions to the Special Master's
report. The Court will hold hearing on those exceptions then issue its ruhng on the motion for
sununary judgment. ($10,467.00 as of May 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-ilnposed mandate, not a County regulation; also based on fact that
FOOT is responsible for upgrading u.s. I, not Monroe County and issuance of any building pcnnits
by Monroe County may violate state concurrency and Endangered Species Act provisions, Plaintiffs
have appealed to 3n1 District Court of Appeals. Oral argument was held June 13. ($12,224.00 as of
May 31, 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 May 31, 2002) (does not include
prior Galleon Bay matters),
Ambrose - Declaratory action claiming vested rights under 9380.05(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. Final Order has been entered by Court and County must
file its Notice of Appeal by June 25, 2002, Islamorada has already filed its notice of appeal. The
final order is automatically stayed, but Defendants will also seek a stay of any further trial court
proceedings (i.e., seeking of judgments for additional Plaintiffs). ($46,096.25 as of May 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-Op.
County's brief has been submitted. Oral argument before Third DCA was held June 18 on
Petitioner's appeal of the circuit court dismIssal of certiorari action. Petitioners have filed a motion
for stay ofDOAH proceedillgs pending Third DCA's ruling. (56,735.00 as of May 31, 2002).
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Toppinots - Appeal ofBOCC's decision denying re-zoning based on Navy ACQUIZ overlay zone
pTOhibiting new development. Re-zoning constitutes "new development" as defined by state growth
management act.
Florida Keys CitizenJs Coalition - DOAR 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. Parties have entered stipulated abatement of
DOAH proceeding pending revision/withdrawal of rule and settlement discussions. ($337,50 as of
May 31, 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. Parties are proceeding with
discovery. ($877.50 as of May 31,2002).
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