Item K1
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GROWTH MANAGEMENT LITIGATION REPORT
TO:
Board of County Commissioners
Richard Collins
County Attorney
Timothy McGarry
Director, Growth Management Division
FROM:
J ames Roberts
CO\Ulty Administrator
Derek Howard, Esq.
Morgan & Hendrick
December 10, 2004
DATE:
Vaution Rentals
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Neumont (Federal Class Action) - Plaintiffs filed a class action suit in U.S. District Court alleging
vacation rental ordinance (Ordinance 004-1997) was prematurely enforced, is an unconstitutional
taking of Plaintiffs' properties, and was adopted in violation of due process. On June 20, 2004, the
U.S. District Court entered final judgment in favor of lhe County. On July 15, 2004,
Plaintiffs! Appellants 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 risc to the judgment. The
deadline for Appellants to file their initial briefhas been extended until December 15,2004. On
September 15, 2004. Appellants filed a motion to certify state. law questions to the Florida Supreme
Court and to postpone briefing pending certification; the County filed its response on October 7;
Appellants filed a reply to the County's response on October 15,2004. On October 18,2004, a
mediation conference was heJd. On October 19, 2004, the Court denied Appellants' motion to stay
brie{1ng and ruled motion to certify state-law questions to the Florida Supreme Court is carried with
the case. ($97,275.67 as of November 30,2004).
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 approximateJy I ~800 to 2,500 square feet.
However, Plaintiffs may not be able to build within this area due to Ocean Reef Club 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. Mediation was held on October 21,2004. Case was set for bench
trial on November 29 and 30, 2004. On November 22, 2004, Plaintiffs filed an emergency motion
for continuance; motion was heard and granted on November 24,2004. Parties are awaiting an order
re-setting case for trial. On November 22, 2004, Plaintiffs alsQ filed a motion for leave to file a
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second amended complaint in order to add a elaim of vested rights; motion is set for hearing on
Janwuy 5, 2005. ($30,062.07 as of November 30, 2004).
Galleon Bay - lbree 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 17,2004, the 3rd D.C.A. denied the COWlty'S petition for writ of certiorari. (2) As to takings
claim, Judge Payne entered sununary judgment in favor of Plaintiff on liability on November 10,
2003, finding both a temporary and penn anent taking of the subject property. Case was scheduled to
proceed with a jury trial as to damages on August 9, 2004. At the pretrial conference on July 26,
2004, however, Judge Payne agreed to modify his order on liability to find only a pennanent taking
on April 2 L 1994, and granted Plaintiff's request to continue the trial until October 12, 2004.
Plaintiffs cOWlsel was delegated the task of reducing the CoUrt's announced ruling to a proposed
modified order. On August 18,2004, Judge Payne entered fillaljudgment in favor of the County as
to Plaintiff Hannelore Schleu. On September 24, 2004, the County submitted a proposed modified
order consistent with the Court's July 26, 2004, ruling. On October 3, 2004, Plaintiff submitted a
proposed modified order that substantively contradicted and strayed from the Court's ruling; namely,
the proposed order found a temporary taking occurred. On October 6, 2004, an emergency hearing
was held, at which time the Court agreed to enter Plaintiffs proposed modified order and continue
the trial. The trial is scheduled to begin on February 7,2005. On October 22,2004, the County filed
a motion for rehearing arguing, inter alia, the verbatim entry of Plaintiff's proposed modified order
violated the procedural due process rights of the County. On November 2, 2004, Plaintiff filed a
reply to the County's motion for rehearing. On November 29,2004, the County filed an amended
motion for rehearing andlor motion for reconsideration. (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
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 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 Depanment of
Community Affairs and the Administration Commission 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 the motion to
transfer venue and petition for writ of prohibition/certiorari. On August 24, 2004, the CoUrt granted
County's motion to hold appeal in abeyance. On August 25,2004, the Court denied County's motion
to hold petition in abeyance. The Court has deferred the deadline for the COWlty to file its response,
pending resolution of matters in the underlying action. ($134,064.62 as of November 30, 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. Plaintiff is also pW'Suing
administrative requirements for filing a claim under the Bert Harris Act. COWlty'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 Apri126, 2004, to discuss potential deveJopment. On August 17,2004, parties appeared before
the court for a status conference. Another status conference is scheduled for February 14,2005.
($14,481.42 as of November 30, 2004).
PhclpslHardin - Plaintiffs tiled claim in federal court for due process and inverse condemnation
based on code enforcement proceedings that resulted in a lien on Plaintiffs' property. Federal coUrt
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entered judgment in favor of Monroe 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
for lack of prosecution. On September 27,2004, the Court dismissed the appeal. On October,S,
2004, Plaintif17 Appellant filed a motion for rehearing of order gran1ing motion to dismiss appeal. On
November 5,2004, the Court entered an order granting Appellant's motion fOT rehearing and setting
aside and vacating dismissal. ($6,547.93 as of November 30,2004).
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 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 a.nd 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. On September 21, 2004, the Court granted the
County's motion for an extension of time, extending the deadline for the County to render a
beneficial use determination wltil January 20, 2005. On October 26,2004, a beneficial use hearing
was held and the parties aTe awaiting rendering of the Special Master's proposed order. ($2,542.57
as of November 30, 2004).
Other Matters
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 rOLltinely 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 voluntary dismissal pending adoption of
moratorium & revised regulations, but moved forward with appeals as to individual permits (see
below). ($10,140.95 as of November 30,2004).
· Department of Community Affain 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 subject of a code enforcement proceeding in which the
County alleges the lot was illegally cleared). On November 4, 2004, DOAH granted the
parties' joint motion for continuance and placed case in abeyance, pending settlement.
($1,125.50 as of November 30,2004).
Eads v. Monroe County - Three cases: (1) appeal of code enforcement order finding property in
violation for, unsafe condition; (2) appeal before hearing officer of HPC 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
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structure. (1) Appeal of code enforcement order is being held in abeyance pending final ruling on
due process claim. (2) On January 8, 2004, parties stipulated to dismiss appeal ofHPC decision,
without prejudice. AU subsequently ordered the DOAH file closed. (3) HOCC'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 argwnents were heard on May 17, 2004. On June 9,
2004, 3rd D.C.A. ruled in favor ofthe County, affirming the circuit court's decision. On June 16,
2004, PlaintifflAppellant filed a motion for clarification, rehearing, rehearing en banc and written
opinion. On August 1 J, 2004, the 3rd D.C.A. denied this motion. ($37,888.44 as of November 30,
2004).
O'Daniel and HiUs v. Monr-oe County -AppeUantslPetitioners tiled 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 colUt affilUled the
SpecjaJ Master's finding 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 Appellants/Petitioners. The Court
held that Appellants/Petitioners have vested rights to maintain a mixed residentiallconuncrcial
structure on the subject property, and to use the subject property for both residential and commercial
office purposes. The relief granted to AppellantsIPetitioners is relatively narrow compared to the
relief sought. The Court, for example, held that (1) any application for a change in commercial use is
subject to current regulations regarding non-conforming structures and uses, and (2) the commercial
portion of the structure must substantially comply with current standard building, electrical,
mechMical and plwnbing codes before a certificate of occupancy is issued. The Court did not vacate
its prior order affinning ,the Code Enforcement Special Master order. On November 4. 2004,
Petitioners filed motions to tax costs and for attorney's fees pursuant to ~ 57.105, Fla. Stat. On
November 11,2004, the County filed a motion to strike Petitioners' motion for attorney's fees. A
hearing on the County's motion to strike is scheduled for January 13, 2005. ($28,119.93 as of
November 30. 2004).
Industrial Communications & Electronics - FederaJ case alleging wireless tower moratoria were
Wlconstitutional 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. Federal appeals court mediation process stayed the appeal
pending action on I.C.E 's proposed settlement, which was presented to and rejected by BOCC.
Parties are awaiting setting of oral argument by 1 ) th Circuit. ($18.66) .61 as of November 30, 2004).
Johnson - Writ of Mandamus challenging Director of Planning's determination that application for
"boWldary detennination" by alleged error requires zoning map amendment application. Applicant
applied for boundary detemlination based on allegation that BOCC previously adopted change in
zoning. Director's detennination was based on review of records failing to show any error or prior
consjderation of such zoning change. Director rejected application and informed owner to properly
file for zoning map amendment. (Boundary detennination may be placed on BOCC agenda without
the public notice required for a zoning change). Pursuant to oral argument, Monroe COWlty agreed
to re-process application for denial or approval (application was previously returned as incompJete)
and Plaintiffs may appeal as provided by the Monroe COWlty Code if denied. ($1,807.87 as of
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November 30, 2004).
Osborn, d. al. v. Monroe County (Northstnr) (DOAH CAse No. 03-4720) - Appeal to DOAR of
Planning Commission Resolution No. P47.03, which approved Northstar Resort's request for a
major conditional use to construct an eighty-nine (89) unit resort hotel in Key Largo with 8,158
square feet of commercial use and other amenities. On February 24,2004, AU granted Northstar's
motion to intervene. County filed its answer brief on February 26,2004. Appellants filed reply brief
on May 7, 2004. OraJ argument was heard on June 23, 2004. On November 1,2004, the AU
entered his final order affirming Resolution No. P47-03. ($4,961.47 as of November 30, 2004).
Scotty's, et al. v. Monroe Couoty - Appeal. to DOAH of Planning Commission's deniaJ of
amendment to a major conditional use to demolish an existing structure and build a new Walgreens.
Appellants filed notice of appeaJ on October 10,2003. On February 16,2004, ALJ granted Florida
Keys Citizens Coalition's motion to intervene. Appellants filed their initial brief on May 4, 2004.
Florida.Keys Citizen Coalition (inteIYenor) filed its answer brief on June 8, 2004. The County filed
its answer brief on August 26. 2004. Appellants filed a reply brief on November 8, 2004. Oral
argument is scheduled for January 31, 2005. ($6,014.63 as of November 30, 2004).
Smart Planning and Growth Coalition v. Monroe County (Circuit Court Calle No. 03-CA-S07-
P) - SPOC challenge of NROGO allocations based on allegation that allocations violate
NROOO/Comp Plan provisions because Key Largo Communi Keys 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 Statures. Plaintiffs filed an
amended complaint on February 20, 2004. County filed its answcron March 5, 2004. ($474.49 as of
November 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 conunerciaJ
floor area under the NROGO ordinance. Hinote appealed 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 DOAH Case No. 03-4722, with SPGC intervening
in the Hinote appeal. On June 2, 2004, ALJ entered order affirming Resolution P29-03. On July 19,
2004, Hinote filed its initial brief as to Resolution P30-03. On September 9,2004, County filed its
notice conceding error and waiver of ansWer brief. On September 29, 2004, ALJ entered order
reversing Resolution P30-03 and grCUlting Hinote's application for transfer of development rights to
receive the transfer of commercial floor area from Moore. ($4,649.29 as of November 30,2004).
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