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Item L1 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 305.2965676 FACSIMILE 305.296.4331 W. Curry Harris (1907-1988) Hil81'Y U. Albury (1920-1999) FAX TRANSMISSION TO: COMMISSIONER SONNY MCCOY COMMISSIONER GEORCE NEUGENT COMMISSIONER DIXIE SPEHAR MA VOR PRO TEM DAVID RICE MAYOR MURRAY NELSON RICHARD COLLINS, ESQ. JIM ROBERTS BELLE DESANTIS, CLERK'S OFFICE TIM MCGARRY FAX #: 292-3577 / 872-9195 ./ 292-3466 .,/ 289-6306 ./ 852-7162/ 292-3516 ./ 292-4544./ 295-3663 289.2536 FROM: CHRISTINE ONDREY FOR DEREK V. HOWARD, EsQ. DATE: APRIL 16, 2004 SUBJECT: GROWTH MANAGEMENT LITIGATION REpORT TRANSMITTER: Total number ofpagcs including this cover sheet: , ORIGINAL DOCUMENT(S): . 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Box 1117, KEYWEST, FL 33041 $ TELEPHONE 305 296-5676 $ FACSIMILE 305296-4331 [,1 GROWTH MANAGEMENT LITIGA TIQN REPORT TO: BOCC; Richard Collins; Tim McGarry; Jim Roberts FROM: Derek Howard DATE: April 16, 2004 Vacation Rentals N(:umont (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. A waiting 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 11th Circuit. ($89,285.33 as of March 31, 2004). Takin2S Claims 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 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 COWlty. 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 December 12,2002. Plaintiffs filed notice that case is ready to be set for trial. The court has not set the case for trial to date. ($8,085.57 as of March 31,2004). Galleon Bay - Two cases: (1) appeal of vested rights decision and (2) taking claim. Awaiting ruling 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 ofPlaintifIs on liability. Case will proceed with jury trial as to damages on July 12, 2004. Third Party Complaint was served on State of Florida seeking contribution, indemnity, and subrogation. 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. A hearing on the State's motions is scheduled for May 24, 2004. ($78,860.99 as of March 31, 2004) (does not include prior Galleon Bay matters). Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to commercial moratoriwn 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. Meeting between Plaintiff and County staff scheduled for April 26, 2004. Plaintiffis also pursuing administrative requirements for filing claim under Bert Harris Act. ($12,655.33 as of March 3],2004). Phelpslllardin - Claim brought in federal court for due process and inverse cond.emna1ion based. on code enforcement proceedings that resulted in a lien on Plaintiffs' property. Federal court bas entered judgment in favor of Monroe COWlty due to reinstatement of state court appeal of code enforcement order. Plaintiffs have taken no action on state comt case since reinstatement. ($6,147.26 as of March 31, 2004). Kalan - Taldngs claim filed as to residential property in Cahill Pines & Palms subdivision for failure 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 review. ($1,233.36 as of March 31, 2004). Other Matters Ambrose - Declaratory action claiming vested rights under 9380.05(18) based on filing of subdivision plats. Pursuant to summary judgment proceedings and his previous orders, Judge Payne ordered 1hat 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 final summary judgment for approximately 75 Plaintiffs. Defendants appealed final Order. Third District 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 for rehearing was denied on February 18, 2004. On March 18, 2004, PlaintiffsIPetitioners filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. Defendants/R.espondents will fIle a joint responsive brief opposing further review. ($30,113.48 as of March 31,2004). 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 Momoe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs appealed to 3rd District Court of Appeals, which affirmed the trial court1s ruling in favor of County. Plaintiffs filed a petition for review with the Florida Supreme Court requesting the court 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. ($22,194.03 as of March 31, 2004). Department of Community Affairs v. Monroe County - Case before Land and Water Adjudicatory Commission alleging that County 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 tbat County has allowed higher ROGO scores than 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 2004. DCA entered voluntary dismissal pending adoption of moratorium & revised regulations, but is moving forward with appeals as to individualpennits (see below). ($10,138.70 as of March 317 2 2004). . Department of Community Affairs v. Monroe County and Susan Del FantelDepartment of Community Affairs v. Monroe County and Robert Holeman - Pursuant to 380.07, Florida Statutes, DCA is appealing the building pennits issued by Monroe County to property owners Susan Del Fante and Robert Holeman. DCA alleges that Monroe County did not correctly interpret and apply portions of its Comprehensive Plan and LORs used to score applications for development The ALJ consolidated the cases on March 18, 2004. Cases are scheduled for final hearing on April 21, 2004. DCA has proposed settlement agreements to both property owners whereby County wHJ receive conservation easements that are approximately 10% greater than the easements required under the building permits. On April 14, 2004, parties filed a joint motion to place case in abeyance for twenty days to allow agreements to be signed. Once agreements are signed, DCA will file motions to dismiss the appeals. ($185.00 as of March 31,2004). . Department of Community Affairs v. Monroe County - Pursuant to 380.07, Florida Statutes, DCA is appealing the building permit issued by Monroe County to Nancy Suarez- Cannon. DCA alleges that Monroe County did not correctly interpret and apply portions of its Comprehensive Plan and LDRs used to score application for development. On February 25,2004, the AU dismissed Respondent Nancy Suarez-Cannon from the 'case because she sold the three lots that are the subject of the building permit under appeal. OC6, L.L.C., the current owner of the three lots, subsequently moved to intervene. The case is scheduled for final hearing on June 16, 2004. ($197.50 as of March 31, 2004). Eads v. Monroe County - Three pending cases: (1) Appeal ofBOCC decision to deny rescission of historic property designation and original declaratory action alleging de-d.esignation 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 arbitrf!IY 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 fot extension of time to servc a petition for writ of certiorari. Appellant's initial brief filed March 1, 2004. County filed its answer brief on April 2, 2004. ($33,227.08 as of March 31, 2004). O'Daniel and Hills v. Monroe County - AppellantsIPetitioners are appealing fmding of Code Enforcement Special Master that they were conducting a commercial business on the subject property, which is in a residential zoning district, without having first obtained a special use permit. AppellantslPetitioners are also asserting a vested rights claim. The case is set for trial in the circuit court on May 17,2004. ($10,021.56 as of March 31, 2004). 3 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 II th CircUit. County filed its answer brief on March 1,2004. I.C.E has submitted to GMD a letter suggesting settlement based on the argument that if the subject tower isn't built, the USCG will build one or more even taller towers (1500'). GMD is in process of reviewing facts alleged in I. C.E. scttlementletter. ($18320.11 as of March 31, 2004). 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 for boundary determination based on allegation that BOCC previously adopted 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 rej ected application and informed Owner to properly file for zoning map amendment. (Boundary determination may be placed on BQCC agenda without the public notice required for a zoning change). Pursuant to oral argument, Monroe County agreed to re-process application fOT denial or approval (application was previously returned as incomplete) and Plaintiffs may appeal as provided by Code if denied. ($1730.12 as of March 31,2004). Osborn, et. al. v. Monroe County ~ Appeal to DOAH of Planning Commission's approval of Northstar Resort's application for a major conditional use for the construction 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 intervenc. County's answer brief was filed Febrnary 26, 2004. Oral argument is set for June 23, 2004. ($1363.75 as of March 31, 2004). Seotty's, ct al. v. Monroe County - Appeal to DOAH ofP18TUling Commission's denial of amendment to a major conditional use to demolish an existing structure and build a new Walgreens. Appellants filed notice of appeal on October 10, 2003. On February 16,2004, ALJ granted Florida Keys Citi~s Coalition's motion to intervene. Appellants' Initial Brief has not been filed. ($69.34 as of March 31, 2004) Smart Planning and Growth Coalition v. Monroe County- SPGC challenge of NROGO 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. Plaintiffs filed action in circuit court on same grounds. County prevailed on its motion to dismiss for lack of jurisdiction on grounds that plaintiffis not an "aggrieved party," as required. by section 163.3215, Florida Slalules. Plaintiffs filed an amended complaint on FebroaIy 20,2004. County filed its answer on March 5, 2004. ($2697.10 as of March 31,2004). Smart Planning and Growth Coalition v. Monroe County; Hinote Construction v. Monroe County - SPGC is appealing to DOAH the Planning Commission's Resolution P29-03 whieh granted the application of John C. Moore to transfer 5,790 square feet of commercial floor area under the NROGO ordinance. Hinote is appealing the Commission's Resolution P30-03 which denied Hinote's application to receive 3,300 square feet of transferable commercial floor area for the development ofa Walgreens store. Appeals were consolidated in DOAH Case No. 03-4722. On March 18, 2004, AU entered an order dismissing Hinote appeal for failurc to file an initial brief. On April 8, 2004, Hinote filed a motion to vacate this order. Hinote and the County also filed a joint 4 motion for entry of an order that is consistent with the settlement agreement reached between the parties in the related Circuit Court case (case no. CA-P-03-344). SPGC subsequently filed amotion to intervene in the Hinote appeal, and a motion in opposition of the motion to vacate order dismissing appeal. Issues relating to Hinote's appeal remain pending. On April 14, 2004, DOAR heard oral argument on SPGC's appeal ofP29-03. ($513.50 as of March 31,2004). Upper Keys Citizens Association - Appeal DOAR of Planning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Op. Hearing officer's order upholding Commission's resolution was upheld, but Plaintiffs have f1led further appeal to circuit court. Judgment was entered ill 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 appealed to 3rd D.C.A. County's response to amended petition for writ of certiorari was filed February 9, 2004. On March 4, 2004, court denied petition for writ of certiorari. On March 22, 2004, Petitioners filed motions for rehearing, rehearing en banc, and certification. ($15,753.81 as of March 31, 2004). 5