Item K2
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
October 16, 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 11 th Circuit federal court or may attempt to file a new cause of action in state court. The Court
has indicated that an order is forthcoming. ($50,646.25 as of September 30, 2002).
Takinf!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. Plaintiff has moved for re-
hearing of that determination and the County's response has also been filed, indicating that the two-
month limitation was previously determined through the federal trial proceedings and therefore, must
be upheld. ($21,412.00 as of September 30,2002).
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 anon-final order. Jury trial on damages has been moved by the
court to January because Judge Garcia's wife is expected to deliver during the previously-set trial
week. Rather than risk an interruption of trial, the parties have agreed to re-set in January.
($164,352.24 as of September 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 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. Countywill
pursue establishing those facts through discovery and will likely re- file for summary judgment. Trial
date is currently being re-scheduled by the Court($13,349.00 as of September 30, 2002).
K. I
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 commercial fishing use of property. That order was vacated
on Plaintiffs' motion for re-hearing and Plaintiffs have filed their second amended complaint and the
County's motion to dismiss has been filed.
Final oral argument on Plaintiffs' vested rights certiorari appeal was held & Plaintiffs' 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. Staff has
recommended an appeal. ($8,225.00 as of September 30, 2002) (does not include prior Galleon Bay
matters).
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's
motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders was
denied. Monroe County's answer has been filed. ($1,589.00 as of September 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. Plaintiff was found in violation of various
code provision for failure to reconstruct or demolish a non-conforming structure damaged by
hurricane. Monroe County's motion for summary judgment was granted, allowing the County to
foreclose on the property for the $76,000 in accrued code enforcement penalties. ($10,930.50 as of
September 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 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 motion to
dismiss was granted. Case has been remanded to state court. ($3,390.00 as of September 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. ($5,325.00 as of September 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. Monroe County's motion to dismiss was
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granted by the Court, dismissing all claims as barred by the prior state court action. Plaintiff s
deadline to appeal was October 14. No notice of appeal has been received to date. ($7,830.00 as of
September 30, 2002).
Si2ns & 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%
oftheir value. No pending motions. A proposed settlement has been reached through mediation for
BOCC's consideration. Settlement agreement is on today's agenda for BOCC consideration.
($19,277.50 as of September 30, 2002). (c ~r"""')
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. Court granted Monroe County's motion for summary judgment. Plaintiffs have filed a
Notice of Appeal to the Third District. ($14,292.00 as of September 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 BOCC-approval
of beneficial use determinations allowing issuance of permits. ($16,019.00 as of September 30,
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. ($49,028.75 as of
September 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.
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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. ($10,095.00 as of September 30, 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.
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