Item L2
LAW OFFICES
HUGH J. MORGAN
..lAMES T, Hl;;NDRICK
KAREN K. CABANAS
uECCE: V, RECiANTl;;
3 I 7 WHITEHEAD STRE~
KEY WC:ST, FLORIDA 33040
W. CURfW HARRIS
(1907 - I 9881
HII.ARY U. ALOURY
(1920 -I 999)
MORGAN & HENDRICK
FAX TRANSMISSION
TO: JIM ROJlERTS
MAYOR SONNY MCCoy
COMMISSIONER GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER NORA WILLIAMS
COMMISSIONER MURRAY NELSON
TIM MCGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292-4544
292-3577
872-9195
292-3466
(305) 289-6306
(305) 852-7162
(305) 289-2536
295-3663
FROM: KAREN CABANAS, ESQ.
DATE: SEPTEMBER 16,2002
SUBJECT: GROWTH MANAGEMENT REpORT
TRANSMITTER: Jom
Total number of pages including this cover sheet: 5
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P.O. Box I I 17, KEY"WES'l', FL .3.3041 $ 1t:LEPI-lONE 305296-5676 $ FACSIMILE: 305 296-4.33 I
L.J
GROWTH MANAGEMENT LmGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
September 18, 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 mling on
whether the Judge will adopt the Magistrate's recommendation to dismiss all claims under
jurisdictional doctrines of abstention and ripeness. Ifall 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. ($50,151.25 as of August 31,2002).
Takin2!:s 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 entered partial summary judgment in favor of Monroe County, holding that any
physical taking may only have occurred within a two-month period. ($20,152.00 as of August 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 roled 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 3nl District Court of Appeals as a non-final order. Jury trial On damages will begin October 28th
($162,229.74 as of August 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 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_
($12,224.00 as of August 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. Plaintiffs have also filed a separate action for
inverse condemnation. Judge Payne previously granted the County's motion to dismiss with prejudice
because Plaintiffs can pursue conunercial fishing use of property. That order was vacated on
Plaintiffs' motion for re-hearing and Plaintiffs have been given leave to amend their complaint. Final
oral argument on Plaintiffs' vested rights certiorari appeal was held & Plaintiff's' petition for vested
rights was granted, vesting them from certain provisions. Awaiting staff review of the impact of the
vested rights order to determine whether this ruling should be appealed. ($7,865.00 as of August 31,
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 eounty's motion
to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders was denied.
Monroe County's answer has been filed. ($1,409.00 as of August 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
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 Sununary Judgment were heard May 24. Awaiting ruling. ($10,840.50
as of August 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 pennits 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 faUed to exhaust administrative remedies. Claims were previously filed and dismissed in 1985
for failure to seek administrative remedies. Defendant Army Corps of Engineers motion to dismiss
was granted. Case has been remanded to state court. ($3,390.00 as of August 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. ($4,545.00 as of August 31, 2002).
i"
Industrial Communications & Electronics - Federal district court case alleging denial of due
process, equal protection and inverse conderrmation 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 completed August 18. Awaiting ruling from court. ($7,762.50 as of August
31, 2002).
2
Sil[ns & 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. A proposed settlement has been reached through mediation for
BOCC's consideration. As always, the settlement agreement must be approved by BOCC.
($17,132.50 as of July 31,2002).
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and 91983 claims
challenging Momoe 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 summary judgment. Plaintiffs have filed a
Notice of Appeal to the Third District. ($14,247.00 as of August 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 FOOT
is responsible for upgrading U. S. I, not Monroe County and issuance of any building permits by
Monroe County may violate state concurrency and Endangered Species Act proyjsions. Plaintiffs
have appealed to 3rd District Court of Appeals. Oral argument was held June 13. Parties are
awaiting ruling from 3M DCA as to whether case has been rendered moot by recent BOCC-approval
ofbeneficlal use determinations allowing issuance ofpennits. ($16,019.00 as of August 31, 2002)
Ambrose - Declaratory action claiming vested rights under ~380.05(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 have filed their joint initial brief for the Third DCA appeal and the trial
court has stayed all further proceedings until completion of appeaL ($48,893.75 as of August 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. Third DCA has entered its order
affirming the trial court's dismissal of the certiorari action. Petitioners' DOAH proceeding will now
resume and parties are discussing settlement options. ($9,600.00 as of August 31, 2002).
3
"*
Toppino's - Appeal ofBOCC's decision denying re-zoning based on Navy ACQurz 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. New proposed rule has been circulated which in effect
will resolve the challengers' concems and settle the case. ($2,565.00 as of August 31,2002).
4