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Item L1 Hugh J. Morgan James T. Hendrick Robert Cintron, Jr. Derek V. Howard LAW OFFICES MORGAN & HENDRICK 317 WmTEHEAD SlREET KEy WEST, FLORIDA 33040 TELEPHONE 305.296.5676 FACSIMILE 305.296.4331 W. Curry Harris (1907-1988) Hilary U. Albury (1920-1999) FAX TRANSMISSION TO: COMMISSIONER SONNY MCCOY COMMISSIONER GEORGE NEUGENT COMMlSSlONER DIXIE SPEHAR MAYOR PRO TEM DAVID RICE MA VOR MURRAY NELSON RICHARD COLLINS, ESQ. JIM ROBERTS BELLE DESANTIS, CLERK'S OFFICE TIM MCGARRY FAX #: 292-3577/' 872-9195/ 292-3466./ 289-630&/ 852-7162./ 292-3516./ 292-4544 v 295-3663 289-2854 FROM: CHRISTINE ONOREV FOR DEREK V. HOWARD, ESQ. DATE: .JUNE 14,2004 SUBJECT: GROWTH MANAGEMENT LlTlGATION REpORT TRANSMITTER: Total number of pages including this cover sheet: ORIGINAL DOCUMENT(S): 1L- WILL NOT BE SENT REGULAR COMMENTS: WILL BE SENT OVERNIGHT Our File # 160.01 The information contained ill this facsimile mcssage is anoJ'Tlcy privileged and confidential, intended only far the use of the individual or entity lIIIIlIed nbove. If tile I'l:ader of this mCS5il.ge is not the intended recipient, you are hereby notified that my dissemination, di$lrlbution or COpy of this comml,lni=tion ill strictly prohibited. Tfyou have: recl:ived th is communication in error, p.\c:ase immediately notDY us by h:lc:pho.lle ami relIlm the original mcssage: to us al Lhe above address V IA the U. S. Pascal Service:. lfyou do not receive all JlllSC:s, please call back as soon Q JXIlisible 305-296-S676. The fallowing is our fa1c number 305-296-4331. P.O. Box 1117, KEY WEST. FL 33041 $ TeLEPHONE 305 296-5676 $ FACSIMILE 306296-4331 t · I GROWTH MANAGEMENT LITIGATION REPORT TO: Board of County Commissioners DATE: Richard Collins County Attorney Timothy McGarry Director, Growth Management Division James Roberts County Administrator Derek Howard, Esq. Morgan & Henchick June 14,2004 FROM: 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 or entered judgment in favor of Monroe County on all counts. Awaiting entry of fmal judgment and resolution of motions for fee-shifting sanctions relating to discovery. On June 11, 2004, Plaintiffs f1.led a motion for entry of final judgment, in which they indicated an intent to take a consolidated appeal to the 11th Circuit. ($89,285.33 as of May 31, 2004). Takine:s 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 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 December 12,2002. Case is set for trial on September 20, 2004. ($9,128.42 as of May 31, 2004). Galleon Bay ~ Three cases: (1) appeal of vested rights decision; (2) takings claim; and (3) third party complaint against State of Florida seeking contribution, indemn.ity and subrogation. On . June 14,2004, 3rd D.C.A. heard oral argument on vested rights appeal. As to takings claim, Judge Payne entered summary judgment in favor of Plaintiff's on liability. Case will proceed with jury trial as to damages on August 9, 2004. As to third party complaint against State of Florida, the State moved 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. On May 24, 2004, the court denied the Statets motion to dismiss as to the County's claim of contribution, as well as the State's motion to transfer. On May 24,2004, the State moved to substitute the Department of Community Affairs and the Administration Commission as third party defendants. ($96,194.49 as of May 31,2004; does not include prior Galleon Bay matters). Good.... Plaintiff is 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. Plaintiff and County staff met on April 26, 2004, to discuss potential development Plaintiff is also pursuing administrative requirements for filing claim under Bert Harris Act. ($13,890.42 as of May 31, 2004). 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. ($6,147.26 as of May 31,2004). Kalan - Takings 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 May 31, 2004). Other Matters 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 spend extensive time in trial court litigating ownership issues as to each lot at issue. V,arious enviromnental groups were also granted leave to intervene. Court entered final summary judgment for approximately 75 Plaintiffs. Defendants appealed final Order. lbird District reversed, holding that vesting is not established by mere recording of plats; statute requires showing of reliance and change 0 r position to establi 5h vesting. Plaintiffs' motion for rehearing was denied on February 18, 2004. On March 18, 2004, PlaintiffslPetitioners filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. DefendantslRespondents filed a joint responsive brief opposing further review on April 16, 2004. ($30,735.98 as of May 31, 2004). Department of Community Affairs v. Monroe County - Case before Land and Water Adjudicatory Commission in which DCA alleges that the Connty 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_ DCA also alleges that the County has allowed higher ROGO scores than should have been allocated dne 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 individual pennits (see below). ($10,138.70 as of May 31,2004). 2 . Department of Community Attain v. Monroe County and Susan Del Fante/Department of Community Affairs v. Monroe County and Robert Holeman - Pursuant to 380.07. Florida Statutes. DCA is appealing building permits 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 LDRs in scoring the applications for development. The AU consolidated the cases on March 18, 2004. In April 2004, DCA reached settlement agreements willi property owners whereby County will receive conservation easements that are approximately 10% greater than the easements required under the building permits, DCA subsequently filed motions to dismiss the appeals with DOAH, which then entered orders relinquishing jurisdiction to the Florida Land & Water Adjudicatory Commission (FLWAC). On June 3, 2004. DCA filed notices of voluntary dismissal as to both appeals with FLWAC. ($644.00 as of May 31.2004). . Department of Community Affairs v. Monroe County - Pursuant to 380.07, Florida Slarutes, 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 in scoring the application for development. On February 25.2004, the ALJ dismissed Respondent Nancy Suarez-Cannon from the case because she sold the three subjcct lots to DC6, L.L.C. On May 4, 2004, DC6 (intervenor) sent settlement proposal to DCA in which it proposes to relocate the subject building permit to a neighboring cleared lot (the neighboring lot is the subject of a code enforcement proceeding in which the County alleges the lot was illegally cleared). Case was scheduled for final hearing on Jooe 16.2004. On June 3, 2004, DOAH granted the parties' joint motion for continuance and placed case in abeyance, pending settlement. ($874.50 as of May 31. 2004). Eads v. Monroe County - Three cases: (1) Appeal ofBOCC decision to deny rescission of historic property designation and original declaratory action alleging rescission criteria is violation qf due process because it is llilduly oppressive for failure 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. Code enforcen1ent and demolition/reconstruction appeals are being held in abeyance pending final ruling on due process claim. BOCC's decision to deny rescission of historical designation was upheld by the circuit court, which found the application of the historic preservation ordinance did not result in a denial of due process. Plaintiff appealed circuit court's decision to 3rd D_C.A. and oral arguments were heard on May 17,2004. On June 9, 2004, 3rd D.C.A. ruled in favor of the County, affinning the circuit court's decision. ($37,237.24 as of May 31,2004). O'Daniel and Hills v. Monroe County - AppellantslPetitioners filed a vested rights claim in Circuit Court on March 13. 2002. Appellants/Petitioners also appealed finding of Code Enforcement Special Master that they were conducting a commercial business on the subject, which is in a residential zoning district, without having first obtained a special use permit. The court affirmed the Special Master's finding and order. The vested rights claim went to bench trial on May 25, 2004. Closing statements are due in writing on June 24,2004. ($22,508.80 as of May 31, 2004). Industrial Communications & Electronics - Federal case alleging wireless tower moratoria were unconstitutional on various grounds and violated Federal Telecommunications Act. Case was 3 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 in the 11 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 is not built, the USCG will build one or more even taller towers (1500'). GMD is in process of reviewing facts alleged in J.C.E. settlement letter. ($18,594.11 as of May 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 rejected application and informed Owner to properly file for zoning map amendment. (Boundary determination may be placed on BOCC agenda without the public notice required for a zoning change). Pursuant to oral argument, Monroe County agreed to re-process application for denial or approval (application was previously returned as incomplete) and Plaintiffs may appeal as provided by Code if denied. ($1,805.87 as of May 31,2004). Osborn, et. al. v. Monroe County (Northstar) (DOAH Case No. 03-4720) - Appeal to DOAH of Planning Commission's approval of North star 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 intervene. County's answer brief was filed February 26, 2004. Appellants filed reply brief on May 7, 2004. Oral argument is set for June 23, 2004. ($1,571.25 as of May 31, 2004). Scotty's, et al. v. Monroe County - Appeal to DOAH of Planning Commission's denial of amendment to a major conditional use to demolish an existing structure and build a new Walgrcens. Appellants filed notice of appeal on October 10,2003. On :February 16,2004, AU granted Florida Keys Citizens Coalition's motion to intervene. Appellants' Initial Brief was filed on May 4,2004. Florida Keys Citizen Coalition's (intervenor) Answer Briefwas filed on June 8, 2004. County's Answer Briefis due on July 9, 2004. ($1089.83 as of May 31, 2004) Smart Planning and Growth COlllition v. Monroe County (Circuit Court Case No. 03-CA-507- P) - SPGC challenge of NROGO allocations based on allegation that allocations violate NROOO/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 plaintiff is not an "aggrieved party," as required by section 163.3215, Florida Statutes. Plaintiffs filed an amended complaint on February 20, 2004. County filed its answer on March 5, 2004. ($187.99 as of May 31, 2004). Smart Planning and Growth Coalition v. Monroe County; Hinote Construction v. Monroe County (DOAII Case No. 03-4722) - SPGC appealed to DOAH Planning Commission Resolution P29-03, which granted the application of John C. Moore to transfer S,790 square feet of commercial floor area under the NROGO ordinance. Hinote is appealing Resolution P30-03, which denied Hinote's application to receive 3,300 square feet of transferable commercial floor area for the development of a Walgreens store. Appeals were consolidated in DOAR Case No. 03-4722. On March 18,2004, AU entered an order dismissing Hinote appeal for failure to file an initial brief. On 4 April 8,2004, Hinote filed a motion to vacate this order. Hinote and the County also filed ajoint motion for entry of an order that is consistent with the settlement agreement reached between the parties in ~e related circuit court matter (case no. CA-P-03-344). SPGC subsequently filed a motion 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 June 2, 2004, AU entered order in favor of the County, affirming Resolution P29-03. ($2,718.18 as of May 31, 2004). Smart Planning and Growtb Coalition, et al. v. Monroe County (DOAII Case No. 04-1568) - Appeal to DOAH of Planning Commission Resolutions Nos. P55-03 and P30-03, approving the request of Northstar Resort to receive and transfer ROGO exemptions. Plaintiffs allege these resolutions are inconsistent with the County's Comp Plan and LDRs. Appellants' initial briefs are due on June 17,2004. ($0 as of May 31, 2004). Upper Keys Citizens Association - Appeal to DOAH 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 filed further appeal to circuit court. Judgment was entered in favor of County, holding that planning commissioners are "public officers" as defined by statute and statute mandates that officer vote unless helshe 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 bane, and certification. ($15,753.81 as ofM~y 31,2004). 5