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Item M2 --- ---- - ..-. .--. ---- GROWTH MANAGEMENT LI IGATION REPORT TO: BOCC; Jim Hendrick; Tim McGarry; Jim FROM: Karen K. Cabanas (J- DATE: December 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. Judge has dismissed all but Counts 10 through 13 of Plaintiffs' complaint. Case has been scheduled for trial in June 2003. Parties will conduct further discovery as to remaining counts relating to whether County followed proper notice & adoption procedures, as required by state statute. ($54,111.25 as of November 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 Court has vacated its prior order which had granted partial summary judgment in favor of Monroe County. holding that any physical taking may only have occurred within a two-month period. A waiting Court's issuance ofpre-trial order establishing discovery deadlines and setting trial date. ($22,214.50 as of November 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 of their property for an eight-year period. Jury trial on damages is scheduled for January, 2003. Mediation as to damages wil1 be held December 10. 2002. ($165,769-74 as of NovembeT 30, 2002). Tropic Leisure Recreation - Takings claims regarding property on Upper Matecull1be in which Plaintiffs claim they were denied building permits for new constrLlction. Plaintiffs have filed suit against Islamorada and Monroe County sjnce permitting requests began prior to incorporation. Plaintiff filed an application for a buildingpennit willi Momoe 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. Trial is set for February 23,2003. ($17,489.00 as of November 30,2002). ('0''Y --- -~- --.----. _.. -~.. 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. Hearing has been postponed at Plaintiffs' request. Judge Payne also entered final judgment in favor of Plaintiffs as to their vested rights appeal. (Special Master had recommended granting application; BOCC rejected recommendation and issued Resolution denying vested rights, Plaintiffs appealed to circuit court and BOCC's resolution was reversed). Monroe County fi.u1her appealed by filing a Petition for Certiorari with Third District Co1lrt of Appeals. Third District accepted jurisdiction and Plaintiff has requested an extension to fie their response in approximately 60 days. ($16,415.00 as of November 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. Momoe County's motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders was denied. Monroe C01mty's answer has been filed. Parties are to complete discovery by March 3, 2003. ($1,589.00 as of November 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 condeIl1nation based on code enforcement proceedings, Plaintiffwas found in violation ofvariol..lS code provision for failure to reconstmct 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. Case is being remanded back to County Attorney's Office to proceed with foreclosure proceeding, as granted by smnmary judgment order, ($10,930.50 as of November 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 oflimitations 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 reluedies. Defendant Army Corps of Engineers motion to dismiss was granted. Case has been remanded to state court ($3,390_00 as of November 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 November 30, 2002). 2 ~ -.--. -... ---. - -. 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 granted by the Court, dismissing all claims as barred by the prior state court action. Plaintiffs deadline to appeal was October 14. No notice of appeal was filed and case will now be closed. ($7,830.00 as of November 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 selVice to No Name Key is prohibited by the 20 I 0 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 swnmary judgment. Plaintiffs have filed a Notice of Appeal to the Third District and have moved for an extension oftime to file their initial brief. ($14,337.00 as of November 30, 2002). Clay (Big Pine Moratorium) - Complaint filed against Monroe County alleging various claims (takings, vested rights) etc.) based on the de facto building moratoriwn 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. I, not Monroe COtlllty and issuance of any building permits by Monroe County may violate state concurrency and Endangered Species Act provisions_ Plaintiffs have appealed to 3Td District Court of Appeals. Oral argument was held June 13. Parties arc awaiting ruling from 3Td DCA as to whether case has been rendered moot by recent BQCC-approval of beneficial use determinations allowing issuance of permits. ($16,019.00 as of November 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 cowt 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 Plaintiffs recently filed their Answer Briefi'Cross-Appeal and Defendants are coordinating a Joint Reply Brief to be filed by December 12, 2002. ($49,906.25 as of November 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 3 ., Petitioner's appeal ofthe 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 win now resume and parties are discussing settlement options. Monroe County has filed its responsive brief. ($10,252,50 as of November 30,2002). Lawson - New matter appealing resolution of the Monroe County Planning Commission. No fuitial Briefhas been filed and Appellant has requested extension oftime to file. ($45.00 as of November 30, 2002). Johnson - New matter seeking Writ of Mandamus challenging Director of Planning's deteunination that application for "boundary detennination" by alleged error requires zoning map amendment application. Applicant applied for boundary determination based on allegation that BOCC previously adopting change in zoning. Director's determination was based on review of records failing to show any error or prior consideration of such zoning change. Director rej ected application and informed Owner to properly fil e for zoning map amendment. (Boundary determination may be placed on BOCC agenda without the public notice required for a zoning change), Hearing on mandamus has been postponed due to judicial recusal & reassignment. ($75.00 as of November 30, 2002). Emmert - Complaint seeking inverse condemnation based on parttal granting of Beneficial Use application. Plaintiffs were granted partial beneficial use from wetland regulations, thus expanding the buildable area of their vacant Ocean Reeflot from approximately 1,800 to 2,500 square feet. However, Plaintiffs cannot build within this area due to Ocean Reef Association deed restrictions requiring setbacks in excess of those required by Monroe County. Plaintiffs allege lhat Momoe County's actions have resulted in a denial of all economic use of their property, despite expressly allowing a 2,500 square foot buildable area. Monroe County's motion to dismiss was denied on grounds that court has originaljurisdiction over constitutional claims & cannot be bound by Hearing Officer's findings. County may move forre-hearing - dependent on further legal research. ($700.00 as of November 30, 2002). Stoky - Certiorari appeal of County's denial of pennit to reconstruct certain square footage due to various nonconformities with existing LDRs. Previous appeal was taken to ROCC for final ruling & BOCC affirmed staffs findings & interpretation. Case was initially filed over I year ago & plaintiffs have now filed an amended complain. Motion to amend was pending for I year, without hearing. No hearing was ever held & plaintiffs simply filed amended complaint without leave of court, County will file motion to dismiss on various procedural & jurisdictional grounds. 4