Item K1
Hugh J. Morgan
James T. Hendrick
Karen K. Cabanas
Robert Cintron, Ir.
Derek V. Howard
LAW OFFICES
MORGAN & HENDRICK
317 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSIMILE 305.296.4331
w. Curry Harris
(1907-1988)
Hilary U. AlbuIy
(1920-1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
MA,YORDIXlE SPEHAR
COMMlSSIONER DAVID RlCE
MAYOR PRO TEM MURRAY NELSON
RICHARD COLLINS, ESQ.
JIM ROBERTS
BELLE DESANTIS, CLERK'S OFFICE
TIM MCGARRY
FAX #: 292-357/
872-919~,"
292-346V /
289-630(('/,..
852-716Y ....
292-351 V~,
292-454.......
295-3663
289-2536
FROM: KAREN CABANAS, ESQ.
DATE: FEBRUARY!7,2004
SUBJECT: GROWTH MANAGEMENT LITIGATION REpORT
TRANSMITTER:
Total number of pages including this cover sheet: 4
ORIGINAL DOCUMENT(S):
WILL NOT BE SENT
REGULAR
WILL BE SENT
OVERNIGHT
COMMENTS: Our File # 160.01
The information contained in this Cacslmile mcss.~e is 3Ir(lmey privileged and coAfidemial, imeOO.;4 only far the use of me individual or emity
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orib.uuu message to us af tile above address VIA the U. S. Posla! Service:. if you do not receive all pIIgOl, plca.'JC call back as soon as possible 305-
296-5676. ~ following is our fax num~ 305-Z96-4331.
P.O. Box 1117, KevWEST, FL 33041 $ Tel.EPl-IONE305 296-5676 $ FACSIMILE 305296-4331
.k ~ J
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
Karen Cabanas
DATE:
February 17,2004
Vacation Rentals
Neomont (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 either dismissed or entered judgment in favor of Monroe
County on all counts. Awaiting entry of final order and resolution of motions for fee-shifting
sanctions relating to discovery. Plaintiffs have stated that they intend to appeal to the 11 th Circuit.
($78,868.75 as of January 31,2004).
Takines Claims
Galleon Bay - Two cases: Appeal of vested rights decision and taking claim. Awaiting ruling
from' 3rd DCA on vested rights appeal. (Court asked for supplemental briefs regarding impact of
Ambrose decision). Taking case: As set forth in my prior letter, Judge Payne has entered
summary judgment in favor of Plaintiffs on liability. Case will proceed wlthjury trial as to
damages. County's Motion for Leave to File 3rd Party Complaint (aga.in3t State of Florida) was
granted; documents have been sent to process server in Tallahassee for service on Attomey
General. Damages trial is set for March 9. Awaiting answer to complaint from State.
($34,482.75 as of January 31,2004) (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. Federal court has
entered judgment in favor of Monroe County due to reinstatement of state court appeal of code
enforcement order. Plaintiffs have taken nO action on state court case since reinstatement.
($6,059.00 as of January 31, 2004).
Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to
commercial moratoriwn which began January 4, 1996. CountYs motion;;o dismiss is being held in
abeyance until Plaintiff obtains a pre-application letter of understanding as to the level of
development that is permissible on each parcel of property. Plaintiffis also pursuing administrative
requirements for filing claim under Bert Harris Act. ($10,117.50 as of January 31,2004).
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 ftom 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 are proceeding with discovery. ($5,567.50 as of January 31,2004).
Kalan - Takings claim filed as to residential property in Cahill Pines & Palms subdivision for failure
10 obtain ROGO allocation in 4 year period- Based on County's motion to dismiss, the parties have
agreed on entry of an order holding the case in abeyance while Plaintiff seeks a beneficial use
detennination, as required to exhaust available administrative remedies and ripen the case for
judicial review. ($1,102.50 as of Janwuy 31,2004).
Other Matters
Clay (Big Pine Moratorium) - Complaint filed against Monroe County al1eging 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. I, not Monroe County and issuance of any building permits
by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
appealed to 3rd District Court of Appeals, which affinned the trial court's ruling in favor of County.
Plaintiffs have filed with the Florida Supreme Court requesting it to accept jurisdiction over case
based on alleged conflict between 3d DCA's judgment and other DCA & U.S. Supreme Court
opinions on the issue of ripeness and futility. Jurisdictional briefs have been filed, awaitingmling as
to whether Fla.S.Ct. will hear case. ($22,814.00 as of January 31,2004).
Ambrose - Declaratory action claiming vested rights under ~380.05(18) based on filing of
subdivision plats. Pursuant to SWl1roary 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.
Various environmental groups were also granted leave to intervene. Court entered fmal summary
judgment for approximately 75 Plaintiffs. Final Order was appealed by Defendants. Third. District
has reversed, holding that vesting is not established by mere recording of plats; statute requires
showing of reliance and change of position to establish vesting. Awaiting ruling on Plaintiffs motion
for rehearing. ($56,423.75 as ofJanuary 31,2004).
Industrial Communications & Electronics - Federal case alJeging wireless tower moratoria were
unconstitutional on various grounds and violated Federal TelecoIDmWlications Act. Case was
dismissed by trial court based on claims being identical to those brought in state court action and
failure to reserve federal claims therein. Case is pending on appeal with 11th Circuit. Filing of
County's brief has been extended to March 3, pending confidential mediation discussions.
($4,342.50 as of January 31,2004).
Upper Keys Citizens Association - Appeal to Div. of Admin- Hearings of Planning Commission'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 to
circuit court. Judgment in favor of County, holding that planning commissioners are "public
officers" as defined by statute and statute mandates that officer vote unless he/she has private
financial interest in outcome of vote. Plaintiffs have appealed to Third District Ct. of Appeals.
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County's response to appeal has been is due Feb. 9. ($13,905.00 as of January 31, 2004).
Lawson - Appeal of Monroe County Planning Commission resolution. Final Order has been
entered affirming Planning Commission resolution. ($112.50 as of January 31, 2004).
Johnson - Writ of Mandamus chalJenging 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 detenninatioD 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 zonmg map amendment. (Boundary deteunination may be placed on BOCC agenda without
the public notice required for a zoning change). Pursuant to oral argument, Monroe County has
agrccd to re-process application for denial or approval (application was previously returned as
incomp lete) and Plaintiffs may appeal as provided by Code if denied ($3,515.00 as of December 31,
2004).
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission alleging that County has 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 maps, thereby allowing more residential
development than should have been approved. Case was set for administrative hearing in January.
DCA has entered voluntary dismissal pending adoption of moratorium & revised regulations, but is
moving forward with appeals as to individual permits. ($8,705.00 as ofJanuaxy 31,2004).
Eads y. 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 financial 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 was held August 22. Court
has issued final judgment in favor of County, holding that application of historic preservation
ordinance did not result in a denial of due process and was not arbitrary or oppressive. Plaintiffhad
argued that ordinance was oppressive because cost of reconstruction was more than cost of
demolition and construction of new non-historic bldg. Plaintiffhas filed notice of appeal as to due
process claim; time has expired to further appeal BOCC denial of de-designation application (court
denied Plaintiffs' motion to consolidate appeals. ($21,455.00 as ofJ anuary 31, 2004).
NROGO Allocation appeals (Smart Planning v. Monroe County): Smart Planning Coalition
challenge ofNROGO allocations based on allegation that allocations violate NROGO/Comp Plan
provisions because Key Largo CommuniKeys Master Plan not yet adopted. Case was dismissed by
DOAH for lack of jurisdiction. New complaint has been filed in circuit court on same grounds.
County has filed motion to dismiss for lack of jurisdiction On grounds that plaintiff is not an
"aggrieved party," as required by statute. Party's interest must be greater than that of general
community. ($195.00 as of January 31, 2004).
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