Item N2
_ _.. __, _ _. '_ __. __._ "_a _.. .-.
Hugh J. Morgan
James T. Hcndtick
Karen K. Cabanas
Robelt Cintron, Jr.
LAW OFFICES
MORGAN & HENDRICK
3]7 WHITEHEAD STREET
KEy WEST, FLORIDA 33040
TELEPHONE 305,296.5676
FACSTMll.,E 305.296.4331
w, amy Harris
(1907-1988)
Hilary 0. Alba.ry
( 1920-1999)
FAX TRANSMISSION
TO: COMMJSSION Il:R SONNY McCoy
COMMISSIONER GEORGE NEUGENT
MAYOR DIXIE SPEHAR
COMMfSSIONERDAVID RICE
MAYOR PRo T[M MURRAY NELSON
RICHARD COLLINS, ESQ.
JIM ROBERTS
BELLE DESANTiS, CLERK'S OFFICE
TIM MCGARRY
FAX #: 292-357~
872-919s/ ./
292-346~/
289-630~<<" /
852-716V-
292-351
292-454
295-3663
289-2536
FROM:
DATE:
SUBJECT: GROWTH MANACEMENT LITIGATION REPORT
TRA.NSMITTER:
Total number of pages including this cover sheet: 4
ORIGINAL DOCUMENT(S):
WILL NOT BE SE~T
KAREN CABAt~AS, ESQ.
AUGUST 15, 2003
WJLL BE SENT
REGULAR OVERNIGHT
COMMENTS: OUf File # 161.01
Th~ information contained in thiS facsimile message is a(!om~y privil~g~cl and confidential, int~I1ded only for rhe use of the indi'idual or entity
named above, If the n,ad~1' of this messase is not Th~ intended recipient, you are bereby notified !bar allY dhsemiDation. dislTihution or eopy of tbi,
commwlicaticm is strictly prohibited. If you have received this lAlllllllunjclluon in crror. pl~ase in:ullecliatel y notify us by rekphone aDd return the
original message 10 us at the above address VIA th~ IJ. S. Postal Sl!rvicc. If yOU do not receive all pag~, please call back lL' soon as possible 305-
296-5676. The following is our fa.'( numb~r 305-296-4331.
P.O. Box 1117, KeyWESr, FL 33041 $ IELEPHONE 305296-5676 $ FACSIMILe: 305296-4331
N'~
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GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
Karen Cabanas
DATE:
August 15, 2003
Vacation Rentals
Neumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was
prematurely enforced, is an unconstitutional taking of Plaintiffs' properties: and was adopted in
violation of due process. The Court has ruled in favor of County on all but counts 11 through 13.
However, those counts arc directly based on the declaratory action brought in count 10, on which the
Court has ruled in favor of County. The case has been removed from the trial calendar and the
parties expect the Court to enter fInal judgment in favor of County on all remaining counts.
Plaintiffs have stated that they intend to appeal to the 11 th Circuit once a final judgment is entered as
to all remaining issues, ($77,023.75 as of July 31,2003).
Takinl!s Claims
New Port Largo _ Proposed settlement on August BOCC agenda. ($22,702.00 as of July 31,2003).
Galleon Bay _ Two cases: Appeal of vested rights decision and taking claim, Awaiting ruling from
3rd DCA on vested rights appea1. County's motion to dismiss taking claim was denied and case will
proceed with discovery. ($19,497.75 as of July 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. County has filed for
summary judgment in federal case becausc Plaintiffs circuit court appeal of code enforcement
findings had been re-opened. ($5,301.50 as of July 31, 2003).
Good _ Seeking declaratory relief and takings claim for .....16 acre Sugar10af Shores property due to
commercial moratorium wInch began January 4, 1996. County's motion to dismiss is being held in
abeyance until Plaintiff obtains a pre-application letter of understanding as to the level of
development that is pennissible on each parcel of property. ($8,932.50 as of July 31,2003).
Emme...t _ Complaint seeking inverse condemnation based on partial granting of Beneficial Use
application. Plail1tiffs were granted partial beneficial use from wetland regulations, thus expanding
the bLlildable 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 that Monroe
County's actions have resltlted in a denial of all economic use of their property, despite expressly
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allowi.ng 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 Healing
Officer's findings. Parties are proceeding with discovery. ($2,957.50 as of July 31,2003).
Other Matters
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 malldate- 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 pemuts
by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
appealed to 3Td District Court of Appeals, which afftrmed the trial court's ruling in favor of County.
Plaintiffs are seeking to have Florida Supreme Court exercise jts discretionary jurisdiction over case.
($17,549.00 as ofJuly 31,2003).
Ambrose _ Declaratory action claiming vested rights under 9380.05(18) based on filing of
subdivision plats, Pursuant to SUIIlJUary 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 court litigating ownership issues as to each lot at issue.
Val;OUS environmental groups were also granted leave to intervene. Court entered final sUllnnary
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,
($56,018,75 as ofJuly31, 2003).
Upper Keys Citizens Association -Appeal to Div. of Admin. Hearings of PI anill ng Corrnnission's
approval of North Key Largo sub-station for Fla. Keys Electric Co-Op. Hearing officer's order
upholding planning Commission resolution was upheld, but Plaintiffs have filed further appeal \0
circuit court County's response has been filed and case will be set for oral argLUnent. ($12,285.00 as
of July 31, 2003),
Lawson _ Appeal of MOll Toe County Planning Commission resolution. CountYs Answer Briefis
due August 25. ($112.50 as of July 31,2003).
Johnson _ WIit of Mandamus challenging Director of Planning's determination that application for
"boundary determination" by alleged error requires zoning map amendment application. Applicant
applied for bOl.Uldary 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 infonned Owner to properly
fi Ie for zoning map amendment. (Boundary determination may be placed on BOCC agenda without
the public notice required for a zoning change). Hearing on mandamus is being re-set. ($942.50 as
of July 31,2003).
Stoky _ Certiorat1 appeal of County's denial ofpennit to reconstruct certain square footage due to
various nOl1conformities with existing LDRs- Judge Payne reversed hearing officer's order and
Plaintiffs will be permitted to re-build nonconforming screened porch, Order holds that all unlawful
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structures that are not capable of prosecution are "lawful" for purposes of non-confonning
regulations and protected by 50% rule. Order based on language in code enforcement chapter of
code that was only intended to apply to chapter 6. Staff has been advised to draft amendment to
language to correct inconsistency with intent of code provisions and is determining whether further
appeal should be taken. ($3,937.50 as of July 31, 2003).
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission alleging that Countyhas failed to comply with 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 Inaps, thereby allowing morc residential
development than should have been approved. Settlement discussions are proceeding and case is in
abeyance _ parties intend to resolve based on tier system/rogo amendments presently under
consideration for adoption. ($2,622.50 as of July 31, 2003).
Department of CommunUy Affairs v. G. Contreras; DCA v. D. Contreras - Two petitions by
DCA before FLAW AC challenging residential building permits issued on Key Largo for on same
grOlmds as above case. Case in abeyance - see above. ($120.00 as of July 31,2003).
Eads v. Monroe County - Three pending cases: (1) Appeal ofBOCC decision to deny rescindment
of designation and original declaratory action alleging de-designation criteria is violation of due
process because it is unduly oppressive for failing to consider fmancial burden & condition of
structure (2) appeal of code enforcement order finding property in violation for unsafe condition and
(3) appeal before hearing officer of HPC decision to deny application for demolition &
reconstruction. BOCC's decision to deny rescinding historical designation was upheld by Judge
Garcia, Code enforcement appeal and demolition/reconstruction appeal are being held in abeyance
pending final ruling on due process claim. Trial on due process claim to be held August 22.
($8,442.50 as of July 31,2003).
Quay Appeal (Parker v. Monroe County): Appeal of Planning Commission resolutions granting
conditional use, receiver and sender site commercial squcrre footage transfer, Plaintiff has requested
an extension to file Initial Brief. County bas objected to extension. Record on appeal has been
corrected and will be filed once all parties review new index.
NROGO Allocation appeals (Smart Planning v. Monroe County); Smart Planning Coalition
appeal of NROGO allocation based on allegation that allocations violate NROGOIComp Plan
provisions because Key Largo CommuruKeys Master Plan not yet adopted Oral argument was held
July 25; awaiting ruling.
Haudte _ (Key Largo Produce) Third-party appeal of Planning Commission action approving KL
Produce as permissible use based on prior nonconfonning use of propeliy. DOAH judge upheld
Planning Commissjon resolution, finding that prior owner had not abandoned the prim" use. Further
appeal to circuit court was made, but court has declined to exercise its discretionary jurisdiction.
($5,600.00 as of July 31, 2003).
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