Item I1
Hugh J. Morgan
James T. Hendrick
Karen K. Cabanas
Robert Cintron, Jr.
Derek V. Howard
LAW OFFICES
MORGAN & HENDRICK
317 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSIMTLE 305.296.4331
W. Curry 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 OFFICE
TIM MCGARRY
FAX #:
292-3577 v'"
872-9195/'
292-3466 ./
289-6306./
852-7162V'
292-3516 V"
292-4544../'
295-3663
289-2536
FROM: DEREKV. HOWARD, ESQ.
DATE: MARCH 12, 2004
SUBJECT: GROWTH MANAGEMENT LITIGATION REpORT
TRANSMITTER:
Total nwuber of pages including this cover sheet:"
,.GJNAL DOCUMENT(S):
WILL NOT BE SENT ~ WilL BE SENT
REGULAR OVERNIGHT
COMMENTS: Our File # 160.01
The information contained in !his flle,;imile mcllsage is a1I.ornc:y privileged and confidential, intended only for the use oftbe individual or eduty IllIml:d
above. Tf tile TClIder (If this tnC5sage is "at the intended leeipienL you are hereby notified that my wssemination, distribution or COp)' of this
eommunicalion is stricUy prohibiled. If you have received this communicarlon in error, pleasc immediately notifY us by telepbone and rcIum dIe (WiSinal
mCSS88c ro \IS at tbe above addrcs~ VTA the U. S. Po.qm! Service. If you do nOt receive all pIl8CS. please call bllCk 3S soon as possible 30.5-296.S676. The
following is our fax numher 305-296-4331.
P.O. Box1117, KEY WEST, FL 33041 ~ TELEPHONE305296-5676 $ FACSIMilE 305296-4331
;:.. \
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
Derek Howard
DATE:
March 12, 2004
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 either dismissed OT entered judgment in favor ofMollIoe
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.
($88,313.02 as of February 29, 2004).
Takin2S Claims
Galleon Bay - Two cases: (1) appeal of vested rights decision and (2) taking claim. Awaiting
niling from 3rd DCA on vested rights appeal (court asked for supplemental briefs regarding
impact of Ambrose decision). As to taking claim, Judge Payne entered summary judgment in
favor of Plaintiffs on liability. Case wil I proceed with jury trial as to damages. Third Party
Complaint was served on State of Florida seeking contribution, indemnity, and subrogation.
Case went to a pre-trial conference on February 24, 2004. County prevailed on its motion for
continuance and trial is now set for July 12, 2004. On March 2,2004, State of Florida filed a
motion to dismiss for failure to state a cause of action, as well as a motion to transfer action to
the Second Judicial Circuit in and for Leon County, Florida. County's responses to these
motions due March 22,2004. ($40,702.51 as of February 29,2004) (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.
($6109.76 as of February 29,2004).
Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to
commercial moratorium which 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 permissible on each parcel of property. Plaintiffis also pursuing administrative
requirements for filing claim under Bert Harris Act. ($12,242.08 as of February 29,2004).
Emmert - Complaint seeking inverse condenmation 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 Countyls motion to dismiss was denied on
December 12, 2002. Plaintiffs filed notice that case is ready to be set for trial. Co Wlty , s objectioDB
to notice filed on February 17,2004. Hearing on County's objections scheduledforMarch3l,2004.
($7861.96 as ofFebruaIy 29,2004).
Kalan - Takings claim filed as to residential property in Cahill Pines & Palms subdivision for fail\tte
to 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
determination, as required to exhaust available administrative remedies and ripen the case for
judicial rcvicw. ($1155.86 as of February 29,2004).
Other Matters
Clay (Big Pine Mor-atorium) - Complaint filed against Mo"nroe 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.8. 1, not Monroe County and issuance of any building pennits
by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
appealed to 3rd District Court of Appeals, which affirmed the trial court's ruling in favor of County.
Plaintiffs filed a petition for review 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. The Florida Supreme Court denied
Plaintiffs' petition for review on March 2, 2004. ($22,644.03 as of February 29,2004).
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 legal issues may be appealed
rather than ~'Pend 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 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. Plaintiffs' motion fot'rehearing was
denied on February 18,2004. ($30,338.48 as of Febl1l81'y 29, 2004).
Industrial Communications & Electronics - Federal case alleging wireless tower moratoria were
unconstitutional on various grounds and violated Federal Telecommunications 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 County's
answer brief filed on March 1,2004. ($17,791.06 as of February 29,2004).
Upper Keys Citizens Association -Appeal to Div_ of Admin. Hearings ofp]anning Conunission'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
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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
fmancial interest in outcome of vote. Plaintiffs appealed to Third District Ct. of Appeals. County's
response to amended petition for writ of certiorari was filed Feb. 9. On March 4, 2004. court denied
petition for writ of certiorari. ($14,687.07 as of February 29,2004).
Johnson - Writ of Mandamus challenging Director of Planning's determination that application for
"boundary determination" by alleged error Tequires zoning map amendment application. Applicant
applied for boundary determination based on allegation that BOee 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 detennination may be placed on BOCC agenda without
the public notice required for a zoning change). Pursuant to oral argument~ Monroe County has
agreed to re-process application for denial or approval (application was previously returned as
incomplete) and Plaintiffs may appeal as provided by Code jf denied. ($1655.12 as ofFebrwuy 29,
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 ROOO 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. ($9511.70 as of February 29, 2004).
Eads v. Monroe County - Three pending cases: (1) Appeal ofBOee 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 on 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, 2003.
Court 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. Plaintiff had
argued that ordinance was oppressive because cost of reconstruction was more than cost of
demolition and construction of new non-historic bldg. Plaintiff's appeal as to due process claim is
currently pending; court denied Plaintiff's motions to consolidate writ of certiorari with pending
appeal and for extension of time to serve a petition for writ of certiorari. Appellant's Initial Brief
filed March 1,2004. County's Reply Brief is due March 21, 2004. ($28,316.56 as of February 29,
2004)-
Smart Planning Coaltion v. Monroe County- Smart Planning Coalition challenge ofNROOO
allocations based on allegation that allocations violate NROGO/Comp Plan provisions because Key
Largo CommuniKcys Master Plan not yet adopted. Case was dismissed by DOAH for lack of
jurisdiction. Plaintiff's filed action in circuit court on same grounds. County prevailed on its motion
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to dismiss for lack of jurisdiction on grounds that plaintiff is not an "aggrieved party," as required by
section 163.3215, Florida Statutes. Plaintiff's filed an Amended Complaint on February 20,2004.
County filed its Answer on March 5, 2004. ($170.25 as of February 29, 2004).
Osborn, ct. aL v. Monroe County - Appeal to Div. of Admin. Hearings of Planning Commission's
approval ofN orthstar Resort's application for a Major Conditional Use for the constnIction of a Key
Largo resort hotel with 89 units, 8,158 square feet of commercial use and other amenities. On
February 24, 2004, AU granted Northstar's motion to intervene. COWlty'S answer brief filed
Februaty 26,2004. Oral argument is set for June 23,2004. ($ 0 as of February 29, 2004).
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