Item M2
--"------- --
Hugh J, Morgan
James T, Hendrick
Karen K. Cabanas
Robert Cintron, 1r.
LAW OFFICES
MORGAN & HENDRICK
317 WHJTEHEAD STREET
KEY WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSfMILE 305.296.4331
W, Curry Harris
(1907-1988)
Hilary U. Albury
(1920-1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
MAYOR DIXIE SPEHAR
COMMISSIONER DA vm RICE
MAYOR PRO TEM MURRAY NELSON
RICHARD COLL.,fNSt ESQ.
JIM ROBERTS
BELLE DESANTIS, CLERK'S OFFICE
TIM MCGARRY
//"
FAX #:
292-357yj
872-9195/ /
292-346~~ / .
289-630q;' ./
852-716:.e/ /
292-3516/ /
292-4544/
295-3663
289-2536
FROM:
DATE:
SUBJECT: GROWTH MANAGEME.NT LITIGATION REpORT
TRANSMITTER: JONI
Total number of pages including this cover sheet: 5
ORIGINAL DOCUMENT(S):
WILL NOT BE SENT
REGULAR
KAREN CABANAS, ESQ.
FEBRUARY 18,2003
WILL BE SENT
OVERNIGHT
COMMENTS:
The jnformation contained 111 this fac.~imile .ll1llssage i, attOrney privileged and coufldential, intended only for tlu: use of the jndividual 01' ~tiry
)1amet.l above. If the re:udllr of this mes~...ge is nor The intended recipient, you !lIe hereby notified thar fIllY di~seminatiOll, disrrihurion Or copy Of this
communic...LiOil is svictly prohibired, If you have rcceive:t! lhis communication i.I1 el.'lOr, plelL~e inunediatCly notify us by telephone and rerum the:
origiD.ll message ro us at [he above address VIA !he U. S. PosLal Service, jfyou do nor receive: till pages, please: call back 3... Soon as possible 305-
296-5676, The: following is our [ax number 305-296-4331.
P.O. Box 1117, Key WEST, FL 33041 $ TeLEPHONE 305 296"5676 $ FACSIMILE 305 296-4331
rn
v
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
February 18, 2003
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' complaiIlt Case has been scheduled fOT trial in June 2003.
Parties will conduct further discovery as to remaining cOWlts relating to whether County followed
proper notice & adoption procedures, as required by state statnte. Mediation was unsuccessfnl. Case
will proceed for trial in J lUlC 2003, Monroe COWlty is preparing motion for summary j ndgment on
remaining counts to be filed shortly. ($60,861.25 as of January 31,2003).
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 vacated its prior order which had granted partial sumlTIary judgment in favor of
Monroe County, holding that any physical taking may only have occurred within a two-mouth
period, Awaiting Court's issuance of pre-trial order establishing discovery deadlines and setting trial
date. ($22,394.50 as of January 31,2003).
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 COllIlty liable for denying Plaintiffs all
economic use of their property for an eight-year period. Settlement Agreement is on this month's
agenda. ($167,037.24 as o fJan uary 31, 2003).
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 pernrit with Monroe County prior to Village incorporation
and eventually received a penl1it from Islamorada subsequent to incorporation. Monroe County' 5
motion for sununary judgment was denied based on existence of disputed mate1ial facts. Tdal is set
for April 8, 2003 in Miami ($20,496.50 as of January 31,2003).
~.~
Galleon Bay - Petition for Certiorari review ofBOCC' s decision to deny vested ri ghts app lication.
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
COWlty'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 further appealed by .filing a Petition for Certiorari with Third District
Court of Appeals. Third District accepted jmisdiction and Plaintiffhas filed their response, Monroe
County will file its reply & await ruling. ($16,842.75 as ofJanuary 31,2003) (does not inc1udeprior
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 COWlty's
motion to dismiss based on Plaintiffs' failure to properly appea.l code enforcement orders was
denied. Monroe County's answer has been filed. Parties are to complete discovery by March 3,
2003. ($1,881.50 as ofJanuary 31, 2003).
Pontin - Case alleging temporary and peIlI.lanent taking of property due to allegedly conflicting
regulations of County and ACOEtDEP wherein each required thc 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 Plaintiffwas first made aware ofthe 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 Anny Corps of Engineers motion to
dismiss was granted. Case has been remanded 10 state court. Motions to dismiss will be heard in
March. ($3,390.00 as of January 31,2003).
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 motion for
sununary judgment. ($5,325.00 as of January 31,2003).
Emmel1 - Complaint seeking inverse condemnation based on partial 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 arca due to Ocean Reef Association deed restrictions
requiring setbacks in excess of those required by Monroe County. Plaintiffs allege that Monroe
COWlty'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 original jurisdiction over constitutional claims & cmmot be hOlll1d by Hearing
Officer's findings. Parties are to schedule early mediation, as there are a number of similarly-situated
Ocean Reeflots. DCA has requested to participate in settlement discussions and will be included_
($1,180.00 as ofJauuary 31,2003).
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Other Matters
Taxpayers for Electrification of NoN ame Key - Declaratory, vested rights, and 91983 claims
challenging Monroe County's policy that installing commercial electric sen1iee 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 COlmty's motion for summary judgment. Plaintiffs have filed a
Notice of Appeal to the Third District and have moved for an extension of time to file their initial
brief. ($14,404.50 as of January 31,2003).
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 dtle 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 3Td District Court of Appeals. Oral argument was held June 13. Parties are
awaiting ruling from 3 rd DCA as to whether case has been rendered moot by recent BOCC-approval
of beneficial use determinations allowing issuance of permits. Two permits have been issued and
were appealed by Department of Community Affairs. Appeals maybe dismissed pending approval
of Big Pine Rep. ($16,649.00 as ofJanuary 31,2003).
Ambrose - Declaratory action claiming vested rights under 9380.05(18) based on filing of
subdivision plats. PurSLlant to summary judgment proceedings and his previous orders, Judge Payne
ordered that Pl aintiffs prove oWlJership of a single Plaintiffs' lot SO that legal issues may be appealed
rather than spend extensive time in trial COillt litigating ownership issues as to each lot at issue.
Various ellvrromnenta1 groups were also granted leave to intervene. Court elltered final summary
judgment for approximately 75 Plaintiffs. Final Order has been entered by Court and all Defendants
have filed notices of appeal. Oral argument was held FebrLlary 5, 2003. Awaiting ruling.
($53,686.25 as of January 31,2003).
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. All briefs have been filed in DOAH
appeal and oral argument was held last week. Awaiting ruling. ($10,387.50 as ofJanuary31, 2003),
Lawson - Appeal of Monroe County Planning Corrunission resolution. No Initial Briefhas been
filed and Appellant has requested extension oftime to file. ($112.50 as of January 31,2003).
Johnson - New matter seeking Writ of Mandamus challenging Director of Planning's detem'lination
that application for "boundary determination" by alleged error requires zoning map amendment
application. Applicant applied for boundary determination based on al1egation that BOCC
previously adopting change in zoning. Director's determination was based on review of records
3
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failing to show any error or prior consideration of such zoning change. Director rejected application
and informed Owner to properly file for zoning map amendment. (Boundmy determination may be
placed on BOCC agenda without the public notice required for a zoning change). Hearing on
mandaInus has been postponed due to judicial recusal & reassignment. ($717.50 as of January 31,
2003).
Stoky _ Certiorari appeal of County's denial ofperrnit to reconstruct certain square footage due to
various nonconformities with eXisting LDRs. Previous appeal was taken to BOCC for final ruling &
BOCC affimled staff's findings & interpretation. Case was initially filed over 1 year ago & plaintiffs
have now filed an amended complain. Monroe County's motion to dismiss and response to certiorari
has been filed. Awaiting ruling or scheduling of oral argument. ($2,745.00 as ofJanuary 31,2003).
Department ofCommunjty Affairs v. Monroe County - Newly-filed case before Land and Water
Adjudicatory Commission alleging that County h as failed to comply with various Comp Plan
requirements by failing to routinely amend endangered species maps, and vegetation surveys as to
high & moderate quality hannnock areas. Also alleges that County has allowed higher ROGO scores
that should have been allocated due to failure to amend rnaps, thereby allowing more residential
development than should have been approved. ($825.00 as of January 31,2003).
Department of Community Affairs v. G. Contreras; DCA v. D. Contreras - Two newly-filed
petitions by DCA before FLAW AC challenging residential building permits issued on Key Largo for
on same grounds as above case.
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