Item I1
GROWTH MANAGEMENT LITIGATION REPORT
FROM:
TO: Board of County Commissioners
Richard Collins
County Attorney
Timothy McGarry
Director, Growth Management Division
James Roberts
County Administrator
Derek How~ Esq.
Morgan & Hendrick
DATE:
August t 6, 2004
Vaeation Rentals
Neumont (Federal Clasa Anion) - Federal class action case alleging vacation rental ordinance was
prematurely enforced, is an unconstitutional taking of plamtiffil' properties. and was adopted in
violation of due process. On June 21,2004. the Court entered finaljudgment in.mvor of the County.
On July 15, 2004, plaintiffsl AppeJJants :filed a notice of appeal to the U.S. Court of Appeals for the
11 th Circuit from final judgment of the District Court, and all interlocutory orders giving rise to the
judgment. Appellants' initial brief is due on September 20, 2004. ($89,522.83 as of luly 31, 2004).
Takinl!8 Claims
Emmert - Complaint seeking inverse condemnation based on partial granting of beneficial use
application. plaintiff.CJ were granted partial beneficial use from wetland regulations, thus expanding
the buildable area of their vacant Ocean Reeflot from approximately 1.800 to 2,500 square rect.
However, P)aintif15 cannot build within this area due to Ocean Reef Association deed restrictions
requiring setbacks in. excess of those required by Monroe County. Plainti1lS allege that Monroe
County's actions have resuhed 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. ($10,672.80 as ofJuly 31,2004).
GaReon Bay - Three cases: (I) appeal of vested rights decision; (2) takings claim; and (3) thiTd
party complaint against State of Florida seeldog contribution, indemnity and subrogation. (1) On
June 14,2004, 3m D.C.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
enteted SUIIlIJ]8[y judgment in mvor ofPJaintiffs on liability on November 10, 2003, finding both a
temporary and permanent taking of the subject property. Case was scbeduled to proceed with a
jury trial as to damages on August 9, 2004. At the pretrial conference on July 26, 2004, however,
ludge Payne agreed to modifY his order on liability to find only a permanent taking on Apri121,
1994, and granted PlaintiffS' request for a continlJan~e. On August 2.2004, Judge Payne granted
1:..1
the County's motion for judgment on the pleadings as to PJaintiffHanncIore Scbleu. (3) As to
third party complaint against State of Florida, the State moved to dismiss for fi1i1ure 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 State's motion to di!llmi!llR as to the
Coun:ty's claim of contribution, as wen as the State's motion to transfer. On May 24, 2004. the
State moved to substitute the Department of Community Affi1irs and the Administration
Conirni!ll!lion as third party defendants. On July 27, 2004. the State filed a notice of appeal to the
3rd D.C.A of the non-final order denying tbe motion to transfer venue. On July 30, 2004, the
State filed its initial brief related to the appeal. The County's answer brief is due on August 19,
2004. On July 27, 2004, the State also filed a petition fur writ of prohibition or in the alternative
writ of certiorari. The County's response to the Statels petition is due on August 23, 2004.
($117,040.98 as of July 31,2004; does not include prior Galleon Bay matters).
Good - plaintiff is seeking declaratozy relief and takings claim for ~ 16 acre Sugarloaf Shores
property due to commercial mol'atorium which began January 4, 1996. County's motion to dismiss is
being held in abeyance untJl pJaintiff obtains a pre-application letter ofunderstandiog 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. A telephonic status confurence before the court is
scheduled for August 17, 2004_ Plaintiffis also pursuing administrative requirements fol"filing a claim
under the Bert Harris Act. ($14,034.42 as of July 31, 2004).
PhelpsIHardin - Claim brought in federal court for due process and inverse condemnation based on
code enforcement proceedings that resulted in a lien on Plaintiffil' property. Federal court 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. On August 10. 2004,
the County filed a motion to dismiss the state court case for lack ofprosecutioD. ($6.169.76 as of
July 31, 2004).
Kalan - Takings claim filed as to residential property in Cahill Pines & Palms subdivision fur fiillure
to obtain ROGO allocation in 4 year period. Based on County's motion to dismiss., the parties agreed
to 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. 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) ($1,323.36 as of July 31, 2004).
Other Matters
Ambl"05e - Declaratory action claiming vested rights under ~380.0S(J 8) based onfiling of subdivision
plats. Pursuant to summary judgment proceedings and his previous orders. Judge Payne ordered that
P]ain.tiffS prove ownership of a single Pl~int1ffs' lot so that legal issues may be appealed rat:her than
spend extensive time in trial court litigating ownership issues as to each lot at issue. Various
environmental grOUP5 were also granted leave to intervene. Court entered final summary juclgnv-ut for
approximately 75 Plaintiffi. 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, PlaintiffslPetitioners filed a notice to invoke the discretionary jurisdiction of the
2
Florida Supreme Court. On July 9, 2004, the Florida Supreme Com denied plaintiffslPetitioners'
petition for review. ($30,735.98 as of July 31,2004).
Department or Community Main v. Monroe County - Case before Land and Water
Adjudicatory Commission in which DCA alleges that the County fiilled to comply with various Comp
Plan requirements by fulling to routinely amend endangered species maps, and vegetation surveys as
to high & moderate quality hammock areas. DCA also alleges that the CoWlty bas allowed higher
RooO scores than should have been allocated due to :fuilure to ameJ1d maps, thereby allowing more
residential development than should have been approved. Case was set for arlm1n1~trative hearing in
January 2004. DCA entered voluntary di!m1i~~ pending adoption of moratorium & revised
regulations, but moved forward with appea]s as to individual permits (see below). (S1O,138.70 as of
July 31, 2004).
· Department of Community Affairs v. Monroe County and Sumo Del FaatelDepartment
of Community AtTain v. Monroe County and Robert Holeman - Pursuant to 380.07,
Florida Statutes, DCA is appealing building pennits issued by Monroe COlmty 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
applicatiOIlS for development. The AlJ consolidated the cases on March 18,2004. InApril
2004, DCA reached settlement agreements with property owners whereby County will
receive conservation easements that are approximately 10010 greater than the easements
required under the building permits. DCA subsequently filed motions to dismiss the appeals
with DOAH, which then entered orders relinqui!lhingjurisdiction to the Florida Land & Water
Adjudicatory Commission (FL WAC). On June 28,2004, FL WAC entered orders dismissing
both appeals. ($764.00 as of July 31, 2004).
· Department of Community Afl'ain 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 mterpret and apply portious of
its Comprehensive Plan and LDRs in scoring the application for development. On February
25, 2004, the AU dismissed Respondent Nancy Suarel:-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 subject of a code enforcement proceeding in which the
County alleges the lot was illegally cleared). Case was scheduled for final hearing onJune 16,
2004. On June 3, 2004, DOAH granted the parties' joint motion for continuance and placed
case in abeyance. pending settlement. ($915.50 as of July 31, 2004).
Eads v. Monroe Couoty - Three cases: (1) appeal of code enforcement order finl1i"8 property in
violation for unsafe condition; (2) appeal before hearing officer of HPC on decision to deny
application fur 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 :fuilure to consider financial b1l1'den & condition of
structure. (1) Appeal of code en1brcement order is being held in abeyance pending finalruling on due
process claim. (2) On January 8, 2004, parties stipulated to di!m1iR.'J appeal ofHPC decision, without
prejudice. ALl subsequently ordered the OOAH tile closed. (3) BOCC's decision to deny rescission
of historical designation was upheld by the circuit court, whichfuund the application of the historic
3
preservation ordinance did not result in a denial of due process. plaintiff appealed circuit court's
decision to 3rd D.C.A and oral atguments were heard on May 17, 2004. On June 9, 2004, 3rd
D.C.A. ruled in mvor of the County, affirming the circuit court's decision. On June 16, 2004,
PIainti1t7 Appellant filed a motion for clarification, rehearing, rehearing en bane and written opinion.
OnAugust 11,2004, the 3rd D.CA denied this motion. ($37,779.94 as of July 31,2004).
O'Danielud Hills v. Monroe County -AppellantsIPetitioncrs filed a vested rights claim in Circuit
Court on March 13, 2002. AppeJJamslPetitioners also aPJle3led finding of Code Enfurcemeot Special
Master that they were conducting a commercial business on the subject, which is in a residential
zoning distric~ without having 1irst obtained a special use permit. The court affiI1I1ed the Special
Master's finding and order. The vested rights claim went: to bench trial on May 25,2004. Thcparties
filed their written :final arguments and are awaiting the court's ruling. ($26,880.2 I as of Iuly 31,
2004).
Industrial Communications .It EJeetronies - Federal case alleging wireless tower moratoria were
unconstitutional on various grounds and violated Federal TeJecommllnicatiom Act. Case was
dismissed by trial court based on claims being identical to those brought in state com action and
firilure to reserve federal claims therein. Case is pending on appeal in the 1 I th Circuit. County filed
its answer brief on March 1, 2004. LC.E has submitted to GMD 8 letter suggesting settlement based
on the argument that if the subject tower is not built, the USCG will build one or more even taDer
towers (1500'). GMD is in process of reviewing mcts alleged inlC.E. settlement letter. ($18,661.61
as of July 31,20(4).
Joh..son - Writ of Mandamus challenging Director ofPlann;ng's determination that application for
"boundary detennination" by alleged error requires zoning map 8TrJeIJdrnent application. Applicant
applied for boundary determination based on allegation that BaeC previously adopted change in
zoning. Directors determination was based on review of records failing to show any error or prior
considemtion of such zoning change. Director rejected application and infOrmed owner to properly
file for zoning map amendment. (Boundary determmation may be placed on DOce agenda without
the public notice required for a zoning chaJJge). Pursuant to oral argument, Monroe County agreed
to re-process application for denial or approval (application was previously returned as incomplete)
and PlaintiflS may appeal as provided by the Monroe County Code ifdenied. ($1,805.87 as of July
31,2004).
Osborn, et. aJ. v. Monroe County (Northstar) (DOAH Case No. 03-4720) _ Appeal to DOAH of
Planning Connnission's approval ofNorthstar Resort's application for a major conditional use fur the _-
construction of a Key Largo resort hotel with 89 units, 8,158 square feet of commercial use and other
wmnities. 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 argmnent was
heard onlune 23, 2004. ($4,660.39 as of July 31,2004).
S~otty's, et aL v. Monroe Connty - Appeal to DOAH ofPlanninB Commission's denial of
amend1'nP.f1t to a major conditional use to demolish an existing structure and build a new
Walgreens. Appellants fiJed notice of appeal on October 10,2003. On Febrnary 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 JWle 8,
2004. County's Answer Briefis due on August 23,2004. ($2,519.55 as of July 31,2004)
4
SQl8rt PIaDDing and Growth Coalition v. Monroe COllnty (Circuit Court Case No. 03-CA-507-
P) - SPGC cbaIlenge of NROOO aIIocations 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 Jack ofjurisdictiolL Plainti1fs filed action in circuit court on same
grounds. County prevailed on its motion to dismiss for Jack of jurisdiction on grounds that pJaintitfis
not an "aggrieved party," as required by section 163.3215, Florida Statutes. PlainfiftS filed an
amended complaint on February 20, 2004. County filed its answer on March 5, 2004. ($474.49 as of
July 31,2004).
Smart Planaing and Growth Coalition v. Monroe County; Hinote Construction v. Monroe
County (>>OAR Case No. 03-4722) - SPGC appealed to OOAll PJannirtg Commission Resolution
P29-o3, which granted the application of John C. Moore to transfer 5,790 square feet of commercial
floor area under the NROGO ordinance. Hinote is appealing Resolution P30-03, which denied
~te's application to receive 3,300 square feet of transferable commercial floor area fur the
development of a Walgreens store. Appeals were consolidated in DOAH Case No. 03-4722. On
March 18, 2004, ALl entered an order dismissing Hinote appeal for fiillure to file an initial brief. On
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 the related circuit court matter (case no. CA-P-03- 344). SPGC subsequently filed amotion
to intervene in the Hinote appeal, and a motion in opposition to the motion to vacate orderdicmis.~"'.g
appeal. On July 19,2004, Hinote filed its initial brief as to Resolution P30-03. On July 21, 2004t
AU entered an order fur Hinote to show cause why its appeal should not be di!Unissed for Jack of
subject matter jurisdictiolL The County's answer brief is due on September 9, 2004. As to SPGC's
appeal, AU entered order on June 2, 2004, in favor of the County, affirming Resolution P29-03.
($2,928.18 as ofJuIy 31.2004).
5