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Item L1 Hugh J. Morgan James T. Hendrick Robert Cintron, Jr. Derek V, Howard LAW OFFICES MORGAN & HENDRICK 317 WHITEllEAD STREET KEy WEST, FLORIDA 33040 TELEPHONE 305.296.5676 FACSIMlLE 305.296.4331 W. CI11l)' Hanis (1907-1988) Hilary U. Albury (1920w 1999) FAX TRANSMISSION TO: COMMISSIONER SONNY MCCOY COMMISSIONER GEORGE NEUGENT COMMISSfONER DIXIE SPEHAR MAYOR- PRO TEM DAVID RICE MAYOR MURRAY NELSON RICHARD COLLINS, ESQ. JIM ROBERTS BELLE DESANTIS, CI,ERK'S OFFICE TIM MCGARRY FAX#: 292-3577 '>1"" 872-9195/ 292-3466/ 289-6306./ 852-7162/" 292-3516v", 292-4544/' 295-3663 289-2854 FROM: DATE: SUBJECT: GROWTH MANAGEMENT LITIGATION REpORT TRANSMITTER: Total number of pages including this cover sheet: 6 ORIGINAL DOCUMENT(S): WILL NOT BE SENT REGULAR CHRISTINE ONDREY FOR DEREK V. HOWARD, ESQ. JULY 12, 2004 WILL BE SENT OVERNIGHT COMMENTS: Our File # 160.01 TIle inform;'\tion eontained in this facsimile m~ssagc j~ attorney privileged and confide.ntial. intended only for the use: of the indiv idual or entity named above:. If the readet of this mcgsase is not the intended tecjpj~m. yell are hereby notified thut IInY dissemination, di$!libution or copy of this communicatiOI1 is strictly prohibited. If you have I'cceived this communiclItion in errOr, please immcdiatclynotify us by lelephone and return the original m1;S03/:lC: to usal the above address VIA the U. S. Pustal Suvicc. Jfyou do not receive oJ! pug~s, please catl back lI.!lSoon as possible 30:5-296-S676, The fullowing is Our fax number 305-296-4331. P.O. BOX111? KEYWEST, FL 33041 $ TELEPHONE305296-o676 $ FACSIMI~e 3052964331 L. I GROWTH MANAGEMENT LITIGATION REPORT FROM: TO: Board of County Commissioners Riehard Collins County Attomey Timothy McGarry Director, Growth Management Division James Roberts County Administrator Derek Howard, Esq. Morgan & Hendrick DATE: July 12, 2004 VacatioD Rentals N eumont (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. On June 21, 2004, the Court entered Final Judgment in favor of the County. Plaintiffs will likely take a consolidated appeal to the 11 th Circuit. ($89,412.83 as of June 30,2004). 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 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. MOlU'oe County's motion to dismiss was denied on December 12,2002. Case is set for trial on September 20,2004. ($9,660.30 as of June 3, 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, indemnity and subrogation. (1) On June 14,2004, 3rd DoC.A. heard oral argument on vested rights appeal. On June 17,2004, the Court denied the County's petition for writ of certiorari. (2) As to takings claim, Judge Payne entered summary judgment in favor of Plaintiffs on liability. Case will proceed with jury trial as to damages on August 9, 2004. (3) 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 transter action to the Second Judicial Circuit in and for Leon County, Florida. On May 24, 2004, the court denied the State's motion to dismiss as to the County's claim. of contribution, as well as the State's motion to transfer. On May 24, 2004, tile State moved to $ubstitutc the Deparlment of Community Affairs and the Administration Commission as third party defendants. ($104,812.17 as ofJune 30, 2004; docs 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. ($13,896.42 as of June 30, 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. ($6,169.76 as of June 30, 2004). Kalan - Takings claim filed as to residential property in Cahill Pines & Palms subdivision for failw-e to obtain ROGO allocation in 4 year period. Based on County's motion to dismiss, the parties 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. On June 24, 2004, the Court entered an order requiring the County to render a beneficial use determination as to subject property within 90 days (provided the decision may be delayed due to the Board of County Commissioner's schedule) ($1,263.36 as of June 30, 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 pro:ve 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_ 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 Febrnary l8, 2004. On March 18, 2004, Plaintiffs/Petitioners filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. Defcndants/Respondents filed a jOint responsive brief opposing further review on April 16, 2004. ($30,735.98 as of June 30, 2004). Department of Community Affairs v. Monroe County - Case before Land and Water Adjudicatory Commission in which DCA alleges that the 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. DCA also alleges that the 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 vohmtary dismissal pending adoption of moratorium & revised regulations, but moved forward with appeals as to individual permits (see below). ($10,138.70 as of June 30, 2004). 2 · Department of Community Affairs v. Monroe County and Susan Del FantclDepartmeot 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 ALl consolidated the cases on March 18,2004. In April 2004, DCA rcached settlement agreements with 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 (FL WAC). On June 28, 2004, FL WAC entered orders dismissing both appeals. ($689.00 as of June 30, 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 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 subject 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 subj ect of a code enforcement proceeding in which the County alleges the lot was illegally cleared). Case was scheduled for final hearing on June 16, 2004. On June 3, 2004, DOAH granted the parties' joint motion for continuance and placed case in abeyance~ pending settlement. ($975.50 as of June 30, 2004). Eads v. Monroe County - Three cases: (1) appeal of code enforcement order fmding property in violation for unsafe condition; (2) appeal before hearing officer of IIPC on decision to deny application for demolition & reconstruction; and (3) appeal ofBOCC decision to deny rescission of historic property designation and original declaratory action alleging rescission criteria is violation of due process because it is unduly oppressive for failure to consider financial burden & condition of Structure. (1) Appeal of code enforcement order is being held in abeyance pending fmal ruling on due process claim. (2) On January 8, 2004, parties stipulated to dismiss appeal ofHPC decision, without prejudice. ALl subsequently ordered the DOAH ftle closed. (3) 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, affinnjng the circuit court's decision. On June 16, 2004, Plainti:ffi' Appellant tlled a motion for clarification, rehearing, request for rehearing en banc and written opinion. ($37,726.89 as of June 30, 2004). OtDaniel and Hills v. Monroe County -Appellants/Petitioners filed a vested rights claim in Circuit Court on March 13, 2002. AppellantslPetitioners 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. 3 Final Arguments are due in writing on July 15,2004. ($26,168.76 as of June 30,2004). 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 in the 11 th Circuit. County filed its answer brief on March 1,2004. Le.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 I.C.E. settlement letter. ($18,594.11 as of June 30, 2004). Johnson - Writ of Mandamus challenging Director of Planning's determination that application for "boundary determination" by alleged errorrequires 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 me 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) (DOAD Case No. 03-4720) - Appeal to DOAH of Pla.nniI;lg Commission's approval of North star Rcsort'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, ALJ 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 was heard on June 23, 2004. ($4,315.39 as of June 30, 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 WaIgreens. Appellants filed notice of appeal on October 10,2003. On February 16,2004, ALJ 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 Brief was filed on June 8, 2004. County's Answer Brief is due on July 18, 2004. ($1,832.57 as of June 30, 2004) Smart Planning and Growth Coalition v. Monroe County (Circuit Court Case No. 03-CA-507- P) - 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 DOAII fodack 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. ($369.49 as of June 30, 2004)_ Smart Planning and Growth Coalition v. Monroe County; Hinote Construction v. Monroe County (DOAH Case No. 03-4722) - SPGC appealed to DOAH Planning Commission Resolution P29-03, which granted the application of John C. Moore to transfer 5,790 square feet of commercial 4 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 ofa Walgreens store. Appeals were consolidated in DaM! Case No. 03.4722. On March 18, 2004, ALJ entered an order dismissing Hinote appeal for failure to file an initial brief On April 8, 2004, Hinote filcd a motion to vacate this order. Hinote and the County also filed a joint motion for entry of an order that is consistent with the settlement agreement reached between the parties in the 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. On June 2, 2004, ALl ordered Hinote to file its initial brief as to Resolution P30- 03. Issues relating to Hinote's appeal therefore remain pending. As to SPGC's appeal, ALJ entered order on June 2, 2004, in favor of the County, affnming Resolution P29~03. ($2,808.18 as of June 30,2004). Smart Planning and Growth Coalition, et al. v. Monroe County (DOAH 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 RaGa exemptions. Plaintiffs allege these resolutions are inconsistent with the County's Comp Plan and LDRs. Appellants' initial briefs are due on July 19,2004. On June 29, 2004, AU entered order granting Northstar's motion to intervene in support of the County. ($2.00 as of June 30, 2004). Upper Keys Citizens Association - Appeal to DOAIi 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 he/she has private financial interest ill outcome of vote. Plaintiffs appealed to 3rd D.C.A. County's response to amended petition for writ of certiorari was tiled 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. The Court denied these motions on June 23, 2004. ($15,753.81 as of June 30, 2004). 5