Item L2
Hugh J. Morgan
James T. Hendrick
Robert Cintron, Jr.
Derek V. Howard
LAW OFFICES
MORGAN & HENDRICK
317 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSIMILE 305.296.4331
W. Curry Harris
(1907-1988)
HilaryU. Albury
(1920.1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY (292-3577)
COMMISSIONER GEORCE NEUCENT (872-9195)
COMMISSIONER DIXIE SPEHAR (292-3466)
MAYOR PRO TEM DAVID RICE (289-6306)
MAYOR MURRAY NELSON (852-7162)
RICKARD COLLINS, ESQ- (292-3516)
JIM ROBERTS (292-4544)
BEUE DESANTIS, CLERK'S OFFICE (295-3663)
TIM MCGARRY (289-2854)
FROM:
TERESA Ross FOR DEREK V. HOWARD, ESQ.
DATE:
NOVEMBER 16,2004
SUBJECT:
GROWTH MANAGEMENT LmGATlON REpORT to
Total number of pages including this cover sheet:
ORIGINAL DOCUMENT(S):
~x _ WILL NOT BE SENT
REGULAR
COM:MENTS:
WILL BE SENT
OVERNIGHT
Our File # 16~O 1
The infll1l118.liOD canrainc:d in this facsimile mc:ssage is attomC:Y~lc:p and confidcntilll, intended only for tbe use of the individual or entity IIIIIIIClI
.-bove. Jf Ihe reader of lbis mess. is nOl me intended .-ecipiel!.1. )Iou are hereby notified !bat any dusc:minlllion, dilllribution aT copy of 'lhi~
cammuniclllion is strictly prohibited. lfyou have received this c:ommuniC8!iOD in error, plCll5C immcdill1lllynoti1)' Il$ by1Clcphonc and I'elIlm the original
messa&e to US at the above addtess VIA the U. S. Postlll Sel"liee. Ifyoll do nol receive ill Pagf:ll, pleilliC cull back. iIli SUUD lIS possiblc 305-290-5676. The
followiDg is om fix number 305-196-4331.
P.O. Box1117, KEY WEST, FL 33041 $ TaEPHONE305296-5676 $ FACSIMILE 305296-4331
12-
:~ .
GROWTH MANAGEMENT LmGATION REPORl:
TO: Board of County Commi~ners
Riclmd ColJim;
County f'\ttomey
Timothy McGarry
Director, Growth Management DMsion
James Roberts
County Administrator
DAlE:
Derek Howard, Esq.
MolgllU. & Hendrick
November 15,2004
FROM:
Vacation Rentals
Neamo.t (Fedend Class ActioD) - plaiotiflS filed a class action soil: in U.S. District Court alleging
vacation IeDtal ordinance (Ordinance 004-1997) was prematurely enfurced, is an unconstitutiooaJ
taking ofPlaintiffB' properties, and was adopted in '\fiolation of due process- On June 20, 2004, the
u.s. District Court entered final judgment in mvor of the County. On fuly 15, 2004,
PlaintiffWAppelIaDtS .filed a notice of appeaI to the U.S. Court of Appeals fur the 11th Circuit ftom
fiDaljodgment of1he District Court, and an interlocutOIy orders giving rise to the j1ld~ The
deadline for Appellants to file their initial brief has been extended until December 8, 2004. On
September 15. 2004, Appellants filed a motion to certi1Y state-law questions ~ the Florida Supreme
Court and to postpone briefing pending certification; the CoUDty filed its response on October 7;
Appellants filed a reply to the Couoty's response on October 15, 2004. On October 18. 2004, a
mediation conrerence was held. On October 19, 2004, the Court denied AppeDants'motion to stay
briefing and ruled motion to certify state-law questions to the Florida Supreme Court is carried. with
the case. ($97,115.17 as of October 31,2004).
Takino Claims
Emmert - Complaint seeking inverse condemnation based on partial granting of beneficial use
applicatioa PJaiulil[(,; were gmnted partial beneficial use from wetland regulations, thus crpsmding
the buildable area of their vacant Ocean KeefIot from approximately 1,800 to 2,500 square feet.
However, PlaintitTs cannot build within this area due to Ocean Reef Ch1.b Association deed
restrictions requiring setbacks in excess of those required by Monroe County. Plaiotiffs allege that
Momoe County's actions have resQlted in a denial of aD economic use of their property, despite
expressly allowing a 2,500 square fuot buildable area. Momoe Coumys motion to dismiss was
denied on December 12.2002. Mediation was held on October 21.2004. Case is set for bench trial
on Novmnber 29 aud 30, 2004. ($17,944.55 as of October 31.20(4).
GaReon Bay - Three cases: (1) appeal of vested rights decision; (2) takings claim; and (3) third
party complaint against State of Florida seeking contnbution, indemnity and subrogation. (1) On
June 17 ~ 2004, the 3rd D.C.A deIried the County's petition tor writ of certiorini. (2) As to tflm.g,~
claim. Judge Payne entered SDIDIIBY judgroeut in f.Ivor of'Plaiotiff on liability onN~ 10,2003,
finding both a tempoI8IY and permaneDl taking of the subject property. Case was scheduled to
proceed with a jury 1riaI as to damages on August 9, 2004. At the pretrial confurence on ~uIy 26,
2004, bo~, Judge Payne agreed to modify his order on liability to find only a IJ"iIl-uauent takidg on
April 21, 1994, and granted Plainti:tls request to continue the trial BDtil OctoM 12,2004. plaintiffs
coumel was delegated the task of reducing the Court's announced ruling to a proposed modified
order. OnAugust 18, 2004. Judge Payne entered finaIjudgment in favor of the County as to PIaiotifF
Haone1ore Schleu. On September 24. 2004, the County submitted a proposed modified order
coDSistent with the Court's 1uly 26, 2004, roIing. On October 3,2004, PJaintiffsubmitted a proposed
modified order that substantively contradicted and strayed from the Court's ruling; namely, the
proposed order fuund a temporary taking occurred. On October 6, 2004, an emergency bearing was
held, at which. time.the Court agreed to enter plaintifrs proposed modified ordetaod lYlI'dinnc the 1rial
until February, 2005. On October 22, 2004, the County:filed a motion fur rehearing arguing, inter
alia. the -verbatim entry of plaintift's proposed modified order violated the procedU1:al due process
rights of the County. On November 2, 2004, Plaintiff' filed a reply to the County's motion fur
rehearing. (3) As to third party complaiD1 against State of Florida, the State moved to dismiss for
&ilure to state a cause of action, as wen as a motion to transfer action to the Second Judicial Circuit
in and fur Leon County. Florida. On May 24, 2004, the court denied the State's motion to di~qq 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 sub.4tibrte the Department ofCommnnit;y AfIBirs and the.AdIninBrationCo~n
as third party def'P.ndR11t~. OnJuly 27, 2004, the State filed a notice of appeal to the 3rd D.CA oftbe
non-final order denying the motion to transfer venue and petition for writ ofprobibitionlcertiora:ri.
On August 24, 2004, the Court granted County's motion to hold appeal in abeyance. 00. August 25.
2004, the Court denied CouotYs motion to hold petition in abeyance. The Court extended the
deadline fur the County to file its response until October 12, 2004. On October 8, 2004, the County
filed a motion for an additional extension of time in response to developments in the underlying
action. ($129.331.10 as ofOctobcr 31,2004; does not include prior GalJeonBay matters).
Good - plaiotiJI is seekiog dedaratory relief and 1:aJrinw; cJaim fur -16 acre Sugarloaf Shores
property due to coDDCrCial Imratorimn wbicl1 began January 4, 1996. Plaioliff is also pursuing
administrative requircmeots fur:filing a claim under the Bert Harris Act. County'stmtion to d1w~q is
being held in abeyance until pJaintiff obtains a pre-application letter of undetstandiug as to the level of
development thai. is permissible on eacb ~1 of property. PJaintiff and CoUDly staffmet on April
26, 2004, to discuss potential development. On August 17, 2004, parties appcarcd bcfurc the court
for a status con:furence. ($14,457.43 as of October 31.2004).
PhelpslBardin - plf1int1ffil filed claim in fuderaJ. court for due process and inverse condemnation
bMed on code enfurc:cmcnt procccd~ that:resulted in a..I:im. on Plaint:if&:' property. Federal court
entered judgment in fi1vor of Momoc County due to reinstatement of state court appeal of code
enforcement order. On August 10,2004, the County filed a motion to dismiss the state court appeal
fur Jack of prosecution. On September 27,2004, the Omrt dismissed the appeal On October, 5~
2004, PlaiDtift7.AppeDant filed amotion for rebearing of order gr-dldiug motion to dismi!SS appeal On
November 5, 2004, the Court entered an order granting Appellant's motion for rehearing and setting
aside and vacating dismissal ($6,502.43 as of October 31. 2004).
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Kalan _ Takings claim filed as to residential property:in Cahill Pines & Palms subdivision fur fiWure
to obtain ROOO allocation in 4 year period. Based on County's motion to diczmi~1J, the parties agreed
to et1IIy of an ordec holding the case in abeyance while PJaintiIf seeks a beneficial use determinMinn,
as ~ to exhaust awiIabIc administrative remedies and ripen the casc fur judicial review. On
Jmae 24, 2004, the Court entered an order requiring the County to render a beneficial use
detennioation as to subject property within 90 days. On September 21, 2004, the Court gmrted the
County's motion fur an extMAnn oftimc, cxtendillg the dP.Ad1ine fur the ColJlllyto reodcra bcoeficiAl
use ~ 1JIi.ld!ion uotil January 20,2005. On October 26, 2004, a beIler.c;.1 use beariDg was held aod
the parties are awaiting nmdering oftbe Special Master's proposed order. ($2,542.57 as of October
31, 2004).
Otllu Matteo
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission in which DCA alleges that the County fiIiled to comply with wrious Comp
Plan req~l.ts by fiWing to routinely amend endang~ species maps, and vegetatio~ surveys as
to high & modemte quality lvnnmnck areas. OCA also alIeges that the County bas allowed higher
RooO scores than sbould have been allocated due to fiillure to amend maps. thereby allowing more
residential development than should have been approved. Case was set fur AiiminiV'rative bearing in .
January 2004. DCA eotered whmtary dimni!Rl)l pending adoption of moratorium & teVised
regulations, but moved ful ward with appeals as to individual pe.lllib (see below). ($10,138.70 as of
October 31, 2004).
. Depal"t.-eat of COIIIIIlDnity AfI'ain v. Monroe CoaBty - Pursuant to 380.07, Florida
Statlltes, DCA is appealing the building pemIit issued by Mom:oe County to Nancy Suarez-
Cannon. DCA alleges that Monroe County did not correctly interpret and apply portions of
its Comprehensive Plan and LDRs in scoring the application for development. On February'
25, 2004. the AU ~ Respondent Nancy Suarcz-Canoon.&om 1he case ~II$P. she
sold the three subject lots to DC6. L.L.C. On May 4,2004, DC6 (Jnt:erveDol') sent settbDeut
proposal to DCA in which it proposes to relocate the subject building permit to a ncigbboriDg
cleared lot (the neighboring lot is the subject of a code enforcement proceeding in which the
County alleges the lot was iDegaD:y cleared). On November 4, 2004, DOAH granted the
partid joiot motion for continuance and placed case in abeyance, pending settlement.
($1,125.50 as of October 31, 2004).
Eads v. Monroe CO.Bty - Th:ree cases: (1) appeal of code enforcement order finding property in
violation for um;afu condition; (2) appeal befure hearing officer of HPC on decision to deny
application for demolition &. reconstruction; and (3) appeal ofBOCC decision to deny rescumon of
historic property designation and original declaratory action alleging :rescission criteria is violation of
due process because i1 is unduly oi'......~ive fur :fililure to consider 6nAnr:ml bunten & condition of
structure. (I) Appeal of code enforcemeo.t order is being held in abeyance pcndiog fioalJUIiDg ondue
process claim. (2) On January 8. 2004, parties stipulated to di!h'n'i~c: appeal ofHPC decision, without
prejudice. ALl subsequently ordered the DOAH file closed. (3) BOCCs decision to deny rescission
of historical ~ was upheld by the circuit court, wbich fuund the application oftbe historic
preservation ontinance did not result in a denial of due process. pJaiDtiff appealed circuit court's
decision to 3rd D.C.A and oral arguments were beanl on May 17, 2004. On June 9, 2004, 3rd
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D.C.A ruled in mVOI of the County, affirming the circuit court's decision. On June 16,2004,
plaiotiffl Appellant filed 8 motion for clarification, rehearing, rehearing en banc and written opinion.
On August 11,2004, the 3td D.CA denied this motion. ($37,888.44 as of October 31,2(04).
O'Daniel and Hills v. Moll1"Oe CO.Diy -AppellantsIPetitioners filed 8 vested rights claim in Circuit
CoUrt on MaTch 13, 2002. AppeIJantslPetitioners also appealed finding of Code Enfi>rcemeut Special
Master that they were conducting a co~ ~ on the ~ wbieh is in 8 resi(lP.I'It1al
zoning district, without having first obtained a special use permit. The court affinned the Special
Master's 6ndiog and order. The vested rights claim went to bench trial on May 25, 2004. On
October 7. 2004, the Court entered its final judgment in favor of AppeDantsIPetitioners. The Comt
held that AppeDaotslPetitioners have vested rights to maintain a mixed resjdentia)lCOlkll(K:;lc.;ial
structure on the subject property, and. to use the subject property for bothresidenrial and oo~ja]
office purposes. The relief granted to AppellantslPetitioneIs is relatively narrow compared to the
relief sought. The Court, for example, held that (1) any application fut a cbange in commercial use is
subject to cum:ot regulations leg8CdiDg non-coutUaniog stmctures and uses. and (2) the oo~Wal
portion of the structure must sUhstantialty comply with current standard building, ~
mcclJanical and plumbing codes befure a certificate of occupancy is issued. The Court did not vacate
its prior order affirming the Code Enforcement Special Master order. On November 4, 2004,
Petitioners filed a Imtions to tax costs and fur attorney's fees pursuant to ~ 57.105, Fla. Stat. On
No~ 11, 2004, the County filed a motion to stn"ke Petitioners' motion for atto~s mes.
($27,48056 as of October 31, 2004).
Industrial CODIID..atioU & EIedro.ies - Fedel-al case alleging wireless tower moratoria were
uneonstitn1iooal on various grounds and violated Federal TeIcconannnicatiODS Act. Case was
~ by trial court based on claims being identical to those brought in state court action and
fililure to reserve federal claims therein. Case is pending on appeal in the 11th. Circuit. County filed
its answec brief onMareh 1,2004. Federal appeals court uaiationprocc3l stayed tbeappeal ~iI1g
action on I.C.B's proposed ~ which was presented to and rejected by BOCC. Parties are
awaiting setting of oral argument by 11th Circuit. ($18,661.61 as of October 31,2004).
.Jolmso.. - Writ of Mandamus cballer1gjng Director of Planning's det~tinn that application for
"boundary dctcnnination" by alleged mor requires zoning map mnP.ndment application. App6caJJt
applied for boundary determination based on allegation that BOCC previously adopted change in
zoning. Director's determination was based on review of records tailing to show any error or prior
considemtion of such zoning change. Director rejected application and infoDDCd owner to properly
file for zoning map amendmeDt. (Boundary detemJiDationmay bepJaccd onBOCC agemta without
the public notice required for a mning change). Pmsuant to oral argument. Monroe County agreed
to re-process application for denial 01' approval (application was previouslyretumed as incomplete)
and Plaintiffs may appeal as provided by the Monroe County Code if denied (S1,8f.Y7.87 as of
October 31. 2004). .
Osborn, ~ at "1/. MOIroe COUIty (Northstar) (DOAB Case No. 03-4720)-Appc:alto DOAHof
Plannin& Commission Resolution No. P47-03, which approved Northstaf Resort'srequestfuraDll\ior
conditional use to consl:J:uct an eighty-nine (89) unit resort hotel in Key La:tgo with 8.158 square:fi:et
of oollJlDCl'Cial use and other amf!:l\it~, On February 24, 2004, AU granted Nortbstar's motion to
intervene. County filed its answer brief on Febtuary 26, 2004. Appellants filed reply brief on May 7,
2004. Oral argument was heard on June 23, 2004. On November 1,2004, the AU entered his final
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ordcraftluWng ResohrtionNo. P47-03. (54,660.39 as of October 31, 2004).
Scetty's, et aL v. Meane eo..ty - Appeal to OOAll of PIcJnning CoIDl1JissioIis denial of
aIJV'!N1l111n1: to a _r conditiomd use to demolish an ~ structure aod build a:oe'W WaJgn:ens.
.AppeJ1ants filed notice ofappea1 on October 10, 2003. On February 16,2004, AU granted Florida
Keys Citizens Coalition's motion to intervene. Appellants filed their initial brief on May 4, 2004.
Florida Keys Cib:l.en Coalition (iotet\ICnOr) filed its answer brier onJuoe 8~ 2004_ The County filed
its answer briefonAugust 26, 2004. AppeDants filed a reply briefonNovanber 8, 2004. Parties are
awaiting setting ofond. argument by AU. ($5,849.63 as of October 31,2004).
SIUI't P....iIIg 04 Growth CoalitioR v. Mo.roe Coaty (Cireait Coutc.e No. 03-CA-SO'1-
P) - SPGC cJudlenge of NROGO al1ocatiom based on alIegJrtiOn that aUocations violate
NROOO/Comp Plan provisions because Key Largo CoIDDIlJIliKeys ~ Plan not yet adopted.
Case was dimUssed by DOAH fur lack of jurisdiction. Plaintiffi; filed action in circuit court on same
gto~. County prevailed on its motion to di~ fur Jack of jurisdiction on grounds tbat plaidiffis
not an l'aggricved party, n as required by section 163.3215, Florida Statutes. Plaintiffil:filed au
amended complaint on February 20, 2004- County filed its answer on March. 5, 2004- ($474.49 as of
October 31, 2004). .
Smart PlaDDi.g aDd Growth CeaIitioD v_ Monroe c....ty; HiDote Collltnldio.. v_ M..roe
Co..ty (DOAB Cue No_I3-4722) - SPGC appealed to OOAH PIamiDg eommissionResolution
P29-03~ which graoted the application of John C. Moore to tranSfer 5,790 square teet of OOIID11e1'Cial
:floor area under the NROGO ordinance. Hinote appealed Resolution P30-03, which denied Hinote's
appJVom-inn to rec:eiw 3,300 square fi:et ofk""lO)r~&able euuw.acia1 Boor area furtbe devdopmcm of
a Walgrec:Ds store. Appeals were consolidated inOOAH Case No. 03-47~ withSPGC iDterwI:JiDg
in the HOlte appeal OnJ\JIIe 2~ 2004, AU entered order 9ffinning Resolution P29-03. On July 19,
2004, lfmote filed its initial brief as to Resolution P30-03. On Septem.ber 9, 2004, County filed its
notice coDCeding error and ~ of answer brief. On Scpte:Inbc7 29, 2004, AU eoteRd order
revcr:siog Resolution P30-03 and grantiog Hinote's applic.ation fur transfer of devdopment rigbts to
receive the transfur of collullel~ floor area from Moore. (S4~649 .29 as of October 31, 20(4).
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