Item K2
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
July 17, 2002
Vacation Rentals
N eumont (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 11th 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 June 30, 2002).
Takin2S 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 parties have filed additional memoranda of law regarding summary judgment and are awaiting
the Court's ruling. The Court has also ordered that mediation be held by the end of July 2002 and
trial has been set for September, 2002. ($19,597.00 as of June 30, 2002).
Shadek ~ Takings claim for -570 acres of North Key Largo property based on the 1980'5 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, to September 2002. ($162,10224 as of June 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 Monroe County sioce 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 will
pursue establishing those facts through discovery and will likely re-file for summary judgment,
($12,111.50 as of June 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, Plaintiffs have also filed a separate action for
inverse condemnation. County's motion to dismiss has been filed based 00 available uses other than
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single-family and pending appeal of vested rights denial, ($4,925.00 as of June 30,2002) (does not
include prior Galleon Bay matters).
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's motion
to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders was denied,
Momoe County's answer will be filed by July 18, 2002. ($1,049.00 as of June 30,2002).
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. Plaintiffwas found in violation of various
code provision for failure to reconstruct or demoljsh a non-conforming structure damaged by
hurricane. Cross-Motions for Summary Judgment were heard May 24. Awaiting ruling. ($10,840,50
as of June 30, 2002).
Pontin - Case alleging temporary and permanent taking of property due to allegedly conflicting
regulations of County and ACQE/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 of limitations because Plaintiff was first made aware of the conflicting regulations in 1984 and
has also failed to exhaust admini strative remedies, Claims were previously filed and dismissed in 1985
for failure to seek administrative remedies, Defendant Anny Corps of Engineers motion to dismiss
was granted. Case has been remanded to state court. ($3,322,50 as of June 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 appeaIing
such interpretations) and failure to obtain a final decision from the County regarding the application
of said regulations through the administrative process. Proposed settlement agreement on this
month's agenda. ($3,670.00 as ofJune 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 ofJune 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 was continued by the Court. Awaiting notice of hearing from court, ($3,975.00
as of June 30,2002),
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Si2ns & Billboards
Republic Media/Outdoor Systems - Declaratory action claim filed by billboard owners challenging
applicability of Post-Hurricane Emergency Pennitting 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. 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 - hearing set for July 18, ($16,090.00 as of June 30,
2002),
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and 91983 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. Court granted Monroe County's motion for sununary judgment. Plaintiffs have 30 days to
appeal to Third DCA ($13,212.00 as oOune 30,2002),
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. Oral argument was held June 13. Parties are
awaiting ruling from 3rd DCA as to whether case has been rendered moot by recent BOee-approval
of beneficial use determinations allowing issuance ofpennits, ($15,614,00 as of June 30,2002)
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 all Defendants have filed
notices of appeal. Defendants will likely file a joint brief with the Third DCA 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), ($46,621.25 as of June 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. Oral argument before Third DCA was held June 18 on
Petitioner's appeal of the circuit court dismissal of certiorari action. Third DeA has entered its order
affinning the trial court's dismissal of the certiorari action, Petitioners' DOAH proceeding will now
resume. ($9,510,00 as ofJune 30,2002),
3
Toppino's - Appeal ofBOCC's decision denying re-zoning based on Navy ACQUIl 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. Parties have entered stipulated abatement of
DOAH proceeding pending revision/withdrawal of rule and settlement discussions, Settlement
meeting was held with all parties on July 2 (See separate report from Tim McGarry). ($495,00 as of
June 30, 2002),
Moore (NROGO Appeal) - Appeal of DCA's Final Order approving the County's recently-adopted
NROGO regulations. Proposed settlement agreement on this month's agenda, ($2,385.00 as ofJune
30, 2002),
4