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Item N2LAW OFFICES Hugh I Morgan MORGAN & HENDRICK W. Curry IIarris James T. Hendrick 317 WHITEHEAD STREET (1907-1988) Karen K. Cabanas Hilary U. Albwy Robert Cintron, Jr. KEY WEST, FLORIDA 33040 (1920-1999) TELEPHONE 305,296-5676 FAcsIMCLE 305.296.4331 FAX TRANSMISSION TO: COMMISSIONER SONNY MCCOY COMMISSIONER GEORGE NEUGENT MAYOR DIXIE SPEHAR COMMISSIONER )DAV1D )DICE MAYOR PRO TEM MURRAY NELSON RICHARD COLLINS, ESQ. JIM ROBERTS BELLE DESANTIS, CLERK'S OFFICE Tim MCGARRY 292-3577'e/' 872-919Y ' 292-3466/ 289-630 $52-7162 292-351 292-454 295-3663 289-2536 FROM: KAREN CA1gANA.S, ESQ. DATE: MARCH 17, 2003 SUBJECT: GROWTH MANAGEMENT LITIGATION REPORT TRANSMITTER: JONI Total number of pages including this cover sheet: 5 ORIGINAL DOCUMENT(S): WILL NOT BE SENT WILL BE SENT REGULAR CONMNTS: OVERNIGHT The information contained in this facsimile message is attorney privileged and confideniial, intended only for the use of the individual or entity named above. If the reader of this message is not the intends[ recipient, you are hereby notified dear any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please irtuncdiatcly notify us by telephone and return the original message to us ar the above address VIA The U.S. Postal Service. If you do not receive all pages, please call back as soon as possible 305- 296-5676- The following is our faz number 305-29fr4331- P.O. pox 1117, KEY WEST, Fs_ 33041 $ TELEPHONE 305 296-5676 $ FACSIMILE 305 296-4331 GROWTH MANAGEMENT LITIGATION REPORT TO: BOCC; Richard Collins; Tim McGarry; Jim Roberts FROM: Karen K. Cabanas DATE: March 17, 2003 Vacation Rentals Neumont (Federal Class Action) — Federal class action case alleging vacation rental ordinance was prematurely enforced and is an unconstitutional taking ofPlaintiffs' 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. Mediation was unsuccessful. Case will proceed for trial in June 2003. Monroe County has filed a motion for summary judgment as to the remaining counts and discovery is to be completed near the end of this month. (S63,853.75 as of February 28, 2003). Takings 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. Awaiting Court's issuance ofpre-trial order establishing discovery deadlines and setting trial date. Pursuant to BOCC direction & approval, case is being taken over by Alan Greer, Esq. who handled original litigation. (22,462.00 as of February 28, 2003). Tropic Leisure Recreation — Takings claims regarding property on Upper Matecumbc 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 Countyprior to Village incorporation and eventually received a permit from Islamorada subsequent to incorporation. Trial is set for April 8, 2003 in Miami. Monroe County has filed motion for summary judgment based on failure to assert a protected property interest. ($25,551.50 as of February 28, 2003). Galleon Bay —Petition for Certiorari review of BOCC'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 further appealed by filing a Petition for Certiorari with Third District Court of Appeals. Third District accepted jurisdiction, all briefs have been fled and the parties await ruling. ($16,842.75 as of February 28, 2003) (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. Awaiting discovery responses from Plaintiff. ($2,601.50 as of February 28, 2003). 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 1995 for failure to seek administrative remedies. Defendant Army Corps of Engineers motion to dismiss was granted_ Case has been remanded to state court. Motions to dismiss will be heard April 29. ($3,390.00 as of February 28, 2003). Good — Seeking declaratory relief and takings claim for —16 acre Sugarloaf Shores property due to commercial moratorium which began January 4, 1996. Parties are proceeding with discovery. ($5,325.00 as of February 28, 2003). Emmert - 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 Reef lot 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 that Monroe 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 original jurisdiction over constitutional claims & cannot be bound by Hearing Officer's findings. Parties will hold mediation, as there are a number of similarly -situated Ocean Reef lots. DCA has requested to participate in settlement discussions and will be included. ($1,180.00 as of February 28, 2003). 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 and have moved for an extension of time to file their initial brief. (S 14,449.50 as of February 28, 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 due to the traffic level of service and concurrency mandate. Judgment was entered in favor of Monroe County on basis that concurreney 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 anybuilding permits by Monroe County may violate state concurreney and Endangered Species Act provisions. Plaintiffs have appealed to Yd 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. Two permits have been issued and were appealed by Department of Community Affairs. Appeals may be dismissed pending approval of Big Pine KCP. ($16,964.00 as of February 28, 2003). Ambrose - Declaratory action claiming vested rights under §380.05(18) based on filing of subdivision plats. Pursuant to summary] udgment proceedings and his previous orders, Judge Payne ordered that Plaintiffs prove ownership of a single Plaintiffs' lot so that legal issues maybe 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. Oral argument was held February 5, 2003_ Awaiting ruling. ($55,898.75 as of February 28, 2003). Upper Keys Citizens Association —Two separate cases: (1) Appeal to Div. ofAdmin. 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. Decision below was upheld. Case will be closed. ($11,542.50 as of February 28, 2003). Lawson - Appeal of Monroe County Planning Commission resolution. No Initial Brief has been filed and Appellant has requested extension of time to file. (S 112.50 as of February28, 2003). Johnson - New natter seeking Writ ofMandamus challenging Director of Planning's determination that application for "boundary determination" 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 rejected application and informed Owner to properly file 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. ($717.50 as of February 28, 2003). Stoky - Certiorari appeal of County's denial of permit to reconstruct certain square footage due to various nonconformitics with existing LDRs. Previous appeal was taken to BOCC for final ruling & BOCC affirmed 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 argu vent. ($2,745.00 as of February 28, 2003). Department of Community Affairs v. Monroe County - Case before Land and Water Adjudicatory C ommission a lleging that C ounty h as f ailed t o c omply w ith various Comp Plan requirements by failing to routinely amend endangered species maps, and vegetation surveys as to high & moderate quality hammock areas. Also alleges that Countyhas allowed higher ROGO scores that should have been allocated due to failure to amend maps, thereby allowing more residential development than should have been approved. Settlement meeting to be held March 20th. ($900.00 as of February 28, 2003). Department of Community Affairs Y. G. Contreras; DCA v. D. Contreras - Two petitions by DCA before FLAWAC challenging residential building permits issued on Key Largo for on same grounds as above case. ($75.00 as of February 28, 2003)- Eads v. Monroe County - Appeal of Historic Preservation Commission decision to deny rescindment of designation and original declaratory action have been filed. Declaratory action challenges legitimacy of LDRs governing and establishing HPC. Based on prior rulings by Judge Garcia, Monroe County has agreed to allow original action to proceed first due to inability to raise constitutional issues in appeal which may be dispositive of case. ($50.00 as of February 28, 2003)- :!