Item M2
/00. 0 I
Hugh J. Morgan
James T Hendrick
Karen K Cabanas
RobErt Cintron, Jr.
LAW OFFICES
MORGAN & HENDRICK
317 WH1TEHEAD STREeT
KEy WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSTMU..E 305.296.4331
W. Cuny Harris
(1907-1988)
Hilary U. Albury
(1920-1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
MAYOR DIXIE SPEHAR
COMMISSIONER DAVID RICE
MAYOR PRo TEM MURRAY NELSON
RICHARD COLLINS, ESQ.
JIM ROBERTS
BELLE DESANTIS, CLERK'S Ol~FICE
TIM MCGARRY
FAX#:
292-3577 -"
872-9195/'
292-3466/
289-6306 v'"
852-7162 ~,
292-3516/"''--
292-454~
295-3663
289-2536
FROM:
DA TE:
SUBJECT: GROWTH MANAGEMENT LITJGAl'10N REpORT
TRANSMITTER: JONI
Total number of pages including this cover sheet: 5
ORIGINAL DOCUMENT(S):
WILL NOT BE SENT
KAREN CABAi.'IAS, ESQ.
APRIL 14, 2003
J 8
c~
REGULAR
COMMENTS:
WILL BE SENT
OVERNIGHT
The infommtion eOlltllned in this facsimile message is aaorJ1ey privileged. and confidential. intended only for me use of me individual or entity
named abov~. If me reader of l.b.i. messa,ge is nOt the inrewled recipient, you arc hereby notified that any dj~scwi.Dation, clisu-ibution or copy oflhis
commllniC<ltion is strictly prohibited. If yoo have received Ibis communication ill error, please immediately notity us by ldephone and rerum we
original message 10 us at the above address VIA rile U. S. Postal Service. If you do DOL receive all pages, please caI.l back as soon as possible 305-
296.5676. The following is our f:Ix number 305.296.4331.
P.O. Box 1117, KEY WEST, FL 33041 $ TELEPHONE 305296-5676 $ FACSIMILE 305296-4331
-m.L
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
April 14, 2003
Vacation Rentals
Neumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was
prematurely enforced and is an lUlconstitutional taking of Plaintiffs ' properties. Judge has dismissed
all bat Counts 10 through 13 of Plaintiffs' conJplaint. Case has been scheduled for trial in June 2003_
Di scovery has been completed & Monroe County has :fi led for swnmary judgment on all remaining
claims. Plaintiffs have filed cross-motion as to COWlty X (invalid adoption). ($70,491.25 as of
March 31, 2003).
Takin2s Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims werc 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
Mom-oe County, holding that any physical taking may only have occurred within a two-month
period. Awaiting Court's issuance of pre-trial order establishing discovery deadlines and setting trial
date. Pursuant to BOCC direction & approval, case is be.ing taken over by Alan Greer, Esq. who
handled original litigation. (22,529.50 as of March 31,2003).
Tropic Leisure Recreation - Takings claims regarcling property on Upper Matectunbe in which
Plaintiffs claim they were denied building permits for new cons1ruction. Plaintiffs have filed suit
against lslamorada and Monroe County since permitting requests began prior to incorporation.
Plaintiff filed an application for a building pennit with Monroe County prior to Village incorporation
and eventually received a permit from Islamorada subsequent to incorporatiou_ Trial was set for
April 8, 2003 in Miami. Monroe County has filed motion for summary judgment based on failure to
assert a protected property interest Plaintiffs failed to timely respond and final summary judgment
was entered in favor of Monroe County. CountYs motion to recover costs recoverable under federal
law is now pending_ (approximately $6,000 of the COWlty'S costs are recoverable under applicable
law - fees are not recoverable'in this case). (27,134.00 as of March 31, 2003}
/
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 ofproperty. That order was vacated
on Plaintiffs' motion fone-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.
(Specla.l Master had recolllmended granting application; BOCC rejected recommendation and issued
Resolution denying vested rights. Plaintiffs appealed to circuit court and BOCC's resollLtion was
reversed)_ Monroe County further appealed by filing a Pctition for Certiorari with Third District
Cowt of Appeals. Third District accepted jurisdiction, all briefs have been filed and the parties
await ruljng. ($16,932.75 as of March 31, 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 frOlU Plaintiff ($2.64650 as of March 31,2003).
Pontin - Casc 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 ofllmitations because Plalntiffwas 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 ofEnginecrs motion to
dlsmiss was granted. Case has been remanded to state court. Motions to dismiss will be heard April
29. ($3,390.00 as of March 31, 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.
($5.700.00 as of March 31. 2003).
Emmert - Complaint seeking inverse condemriation based on partial granting of BenefIcial Use
application. Plaintiffs were granted partial beneficlal 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 call1lot build within this area due to Ocean Reef Association deed restrictions
requiring setbacks in excess of those required by Monroe County. Plaintiffs allege that 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 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 March 31,2003).
2
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and ~ 1983 claims
challenging Monroe COW1ty'S policy that installing con:unercial 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 oftime to file their initial
brief. Last extension was granted, but ordered that no filIther extensions would be allowed for
Plaintiffs. ($14,487.00 as of March 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 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 3l'd DCA as to whether case has been rendered moot by recent BOCe-approval
of beneficial use determinations allowing issuance ofpermits. Two permits have been issued and
were appealed by Department of Community Affairs. Appeals should be dismissed shortly due to
Big Pine HCP adoption ~ awaiting response from DCA as to delay of dismissals. ($16,964.00 as of
March 31, 2003).
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] egal issues may be appealed
rather than spend extensive time in l:rial court litigating ownership issues as to each lot at issue.
Various environmental groupS were also granted leave to intervene. Court entered final slm1mary
jUdgment for approximately 75 Plaintiffs. Final Order has been entered by Court and all Defendants
have filed notices of appeal. Ora) argument was held February 5, 2003. Awaiting ruling.
($55,898.75 as of March 31,2003).
Upper Keys Citizens Association - Two separate cases: (1) Appeal to Div. of Admin. Hearings of
PlaIllling 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
affimling the trial court's dismissal of the certiorari action. All briefs have been filed in DOAR
appeal and oral argument was held last week. Decision below was upheld, but Plaintiffs have .filed
further appeal to circuit court ($11,632.50 as of March 31,2003).
Lawsoo - Appeal of Monroe County Plaruting Commission resolution. No Initial Brief has been
filed and Appellant has requested extension of time to file. ($112.50 as of March 31,2003).
3
Johnson - Writ of Mandamus challenging Director of PI arming's detennination that application for
"boundary determination" by alleged error requires zoning map amendment application. Applicant
applied for boundary detennination based on allegation that BOCC previously adopting change in
zoning. Director's detennination was based on review of records failing to show any elTor 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 March 31,2003).
Stoky - Certiorari appeal of County's denial of penn it to reconstruct certain square footage due to
various nonconformities 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 complaint. Monroe County's motion to dismiss and response to
certiorari has been filed. Oral argwncnt will likely take place in May. ($2,745.00 as of March 31,
2003).
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission a IJeging that C OUllty h as failed to comply W 1th 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 County has 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 was held March 20th. ($2,622.50
as of March 31,2003).
Department of Community Affairs v. G. Contreras; DCA v. D. Contreras _ Two petitions by
DCA before FLA WAC challenging residential building permits issued on Key Largo for on same
grounds as above case. ($75.00 as of February 28,2003).
Ends v. Monroe County - Appeal of Historic Preservation Commission decision to deny
rescindment of designation and original declaratory action have been filed. DeclaratolY action
challenges legitimacy of LDRB governing and establishing HPC Based on prior rulings by Judge
Garcia, Monroe County has agreed to allow original action to proceed ftrst due to inability to raise
constitutional issues in appeal which may be dispositive of case. ($2605.00 as of March 31, 2003).
4