Item N2
Hugh J. Morgan
James T. Hendrick
Karen K. Cabanas
Robelt Cintron, JI.
LAW OFFICES
MORGAN & HENDRICK
317 WIllTEHEAD STREET
KEY WEST, FLORIDA 33040
TELEPHONE 305.296,5676
FACSIMILE 305.296.4331
W. Curry Harris
(1907-1988)
HilaI)' U. Albtrry
(1920-1999)
FAX TRANSMISSION
TO: COMMJSSIONER SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
MAYOR DIXIE SPEHAR
COMMISSIONER DA VlD RICE
MAYOR Pno TEM MURR4. y NELSON
RICHARD COLLINS, ESQ.
JIM ROBERTS
BELLE DESANTIS, CLERK'S OFFICE
TIM MCGARRY
FAX #: 292-3S7~
872-919Y /
292-346~0'(;/ /
289-6308" /
852-7162' /
292-35161}-
292-454~
295-3663
289-2536
FROM:
DATE:
SUBJECT: GROWTH MA."to\GEMENT LITIeATION REPORT
TRANSMITTER: JONI
Total number of pages including this cover sheet: 5
ORIGINAL DOCUMENT(S):
WILL NOT BE SENT
KAREN CAnAi~AS, ESQ.
MAY 16,2003
REGULAR
COMMENTS:
WILL BE SENT
OVERNIGHT
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296-5676. The following" Our fa.t llwnber 305-~96-4331.
PO, Box 1117. KEY WEST, FL 33041 $ TELEPHONE 305296-5676 $ FACSIMILE 305296-4331
AlZ
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
CC:
Karen K. Cabanas
Jim Hendrick
DATE:
May 16,2003
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' complaint. Case is scheduled for trial in June 2003.
Hearing was held on the parties' cross-motions for summary judgment as to Count X on May 2. If
Monroe County is successful on Count X, the Court should grant SLUllmary judgment as to all
remaining counts. If Plaintiffs are successful, the case will proceed to trial in June, (invalid
adoption). ($79,918.75 as of Apri130, 2003).
Takin2'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 vacated its prior order which had granted partial summary judgment in favor of
Momoe County, holding that any physical taking may only have occurred within a two-month
period. Awaiting Court1s issuance of pre-trial order establishing discovery deadlines and setting trial
date, PursLlant to BOCC direction & approval, case has been taken over by Alan Greer, Esq, who
handled origillallitigation. (22,597.00 as of April 30, 2003).
Tropic Leisure Recreation - Takings claims regarding property on Upper Mateeumbe 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, Trial was set for
April 8, 2003 in Miami. Monroe County has filed motion for stunmary 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- County's motion to recover costs recoverable under federal
law is now pending_ (approximately $6,000 of the County's costs are recoverable under applicable
law - fees are not recoverable in this case). (28~229.00 as of Apri130, 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 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 rejectedrecornmendation and issued
Resolution denying vested rights. Plaintiffs appealed to circuit court and BOCC's resolution was
reversed). Momoe County further appealed by filing a Petition for Certiorari with Third District
Court of Appeals. Third District accepted jurisdiction, all briefs have been filed and the parties
await ruling. ($17,817,75 as of April 30, 2003) (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, Awaiting discovery
responses from Plaintiff. ($2,714.00 as of April 30, 2003).
Pontin - Case alleging temporary and permanent taking of property due to allegedly conflicting
regulations of County and ACOEIDEP 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 seelc administrative remedies. Defendant Army Corps of Engineers motion to
dismiss was granted. Case has been remanded to state court. Monroe COLUlty'S motion to dismiss
was granted. ($4,492.50 as of April 30, 2003).
Good - Seeking declaratory relief and takings claim for -16 acre SugarloafShores property due to
commercial moratorium which began January 4, 1996. Parties are proceeding with discovery and
Plailltlffis filing an amended complai111, ($7,005.00 as of April 30,2003),
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 Oeean Reeflot from approximately 1,800 to 2,500 square feet.
However, Plaintiffs cannot build within this aTea 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, Case will proceed with discovery. ($1,315,00 as of April 30, 2003)_
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Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and 91983 claims
challenging Monroe COLUIty' 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 fOT 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 110 further extensions would be allowed for
Plaintiffs, ($14,509.50 as of Apri130, 2003).
Clay (Big Pine Moratorillm) - 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 setvice and concurrency mandate. Judgment was entered in favor of Monroe COlU1ty on
basis that concurrency is a state-imposed mandate, not a County regulation; also based on fact that
FDOT is responsible for upgrading US- 1, not Monroe County and issuance of any building pennits
by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
hav~ appealed to 3rd District Court of Appeals. Oral argument was held June 13. Parties are
awaiting ruling from 3n1 DCA as to whether case has been rendered moot by recent BOeC-approval
of beneficial use detemlinations allowing issuance of permits. Two permits have been issued and
were appealed by Department of Community Affairs, Appeals should be dismissed shortly due to
BigPine HCP adoption - awaiting URS filing of incidental take pennit application, ($17,009.00 as
of April 30, 2003),
AnibJ:'osc - Declaratory action claiming vested rights under ~380.05(l8) 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 sa that legal issues may be appealed
rather than spend extensive time in trial court litigating ownership issues as to each lot at issue.
Various enviromnental groups were also granted leave to intervene. Court entered final summary
j udg,nent for approximately 75 Plaintiffs. Pinal 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 April 30, 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.
Cotmty's brief has been submitted. Oral argument before Third DCA was held June 18 on
Petitioner's appeal ofthe circuit court dismissal of certiorari action. Third DCA has entered its order
affirming the trial court's dismissal ofthe 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 April 30, 2003).
Lawson - Appeal of Monroe County Planning Commission resolution. No Initial Briefhas been
filed and Appellant has requested extension of time to file. ($112.50 as of April 30, 2003).
3
Johnson - Writ of Mandamus challenging Director of Planning's determination that application for
"boUndary determination" by alleged error requires zoning map amendment application. Applicant
applied fOT bmmdary determination based on allegation that BOCC previously adopting change in
zoriing. Director's determination was based Oll 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 detennination may be placed on BOCC agenda witllOut
the public notice required for a zoning change). Hearing on mandamus has been postponed due to
judicial Tecusal & reassignment ($1,030.00 as of April 30, 2003).
Stoky - Certiorari appeal of County's denial of pennit to reconstruct ce11ain square footage due to
various nonconformities with existing LDRs. Previous appeal was taken to BOCC for final ruling &
BOCC affirmed staffs findings & interpretation. Case was initially filed over 1 year ago & plaintiffs
have nOW filed an amended complaint. Monroe County's motion to dismiss and respOllse to
certiorari has been filed. Oral argument will likely take place in June or July, ($2,895.00 as of April
30,2003).
Department of Community Mfairs v. Monroe County - Case before Land and Water
Adjudicatory C ommisslon a lleging 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 han11l1ock 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 discussions are continuing; many of
DCA's concerns were met by Tier 1 interim moratorium. ($2,780.00 as of Apri130, 2003).
Department of Community Affairs v. G. Contreras; DCA v. D. Contreras - Two petitions by
DCA before FLAW AC challenging residential building pennits isslled on Key Largo for on same
grounds as above case. ($75.00 as of April 30, 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 ofLDRs governing and establishing HPc. Based on prior rulings by Judge
Garcia, Momoe 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. Plaintiffs appeal of de-designation
denial was denied; constitutional claims are still pending. ($3,955.00 as of April 30, 2003).
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