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Hugh 1. Moraan
JatTIes T. Hendrick
Robert Cintron, Jr.
Del'ek V. Howard
LA W OFFICES
MORGAN & HENDRICK
3 } 7 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TELEPHONf 305.296.5676
FACSIMILE 305.296.4331
W. Curry Harris
(1907-1988)
Hilary U. Albwy
(1920-1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY (292~3577)
COMMISSIONER GEORGE NEUGENT (872-9195)
COMMISSIONER DIXIE SPEHAR (292-3466)
MAYOR PRo TEM DA V1D RICE (289-6306)
MA VO~ MVRRA Y NELSON (852.7162)
RICHARD COLLINS, ESQ. (292-3516)
THOMAS J. WILLI (292-4544)
11M McGARRY (289-2854)
FROM:
TERESA Ross rOR DEREK V. HOWARD, ESQ.
DATE:
JANUARY 10, Z005
SUBJECT:
GROWTH MANAGEMENT LITIGA TJON RE1)OIlT
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GROWTH MANAGEMENT UTICA TION REPORT
TO: Board of County Commissioners
Richard Collins
County Anomey
Timothy McGarry
Director, Growth Management Division
Thomas J. Willi
County Administrator
FROM:
Derek Howard, Esq.
Morgan & Hendrick
January 10, 2005
DATE:
Vatadon Rentals
NeuUlout (F~deral 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, lhe
U.S.' District Court entered final judgment in favor of the COWlty. On July IS, 2004,
Plaintiffs/Appellants filed a notice of appeal to the U.S. Court of Appeals for the 11th Circuit from
fmal judgment of the District Court, and all interlocutory orders giving rise to the judgment. On
September 1 5, 2004, Appellants filed a motion to certify state-law questions to the Florida Supreme
Court and to postpone briefing pending certification; the Co\.mty filed its response on October 7;
Appellants filed a reply on October 15,2004. On October 18.2004, a mediation conference was
held. On October 19, 2004, the Court denied Appellants' motion to stay briefmg and ruled motion to
certify state-law questions to the Florida Supreme Court is Carried with the case. Appellants tiled
their initial brief on December 15, 2004. The County's response is due on January 14, 2005.
($97,450.67 as of December 3]) 2004).
Takio2s 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 f<<t.
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 f1led an emergency motion
for continuance; motion was heam and granted on November 24, 2004. Parties are awaiting an order
re-setting case for uial. On Novcmbc:r 22, 2004, Plaintiffs also filed a motion for leave to file a
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second amended complaint in order to add a claim of vested rights. The motion was heard on
January 5, 2005, and the panics are awaiting the Court's decision. ($33,417.14 as of December 31,
2004).
Galleon Bay - Three cases; (1) appeal of vested rights decision; (2) takings claim: and (3) tbird
party complaint against State of Floridll seeking contribution, indemnity and subrogation.
(1) On June 17,2004, the 3rd D.C.A. denied the County's petition for writ of certiorari.
(2) As to takings claim, Judge Payne entered Slunmary judgment in favor of Plaintiff on liability on
November 10,2003, finding both a temporcuy and permanent taking of the subject propeny. Case
was scheduled to proceed with Ii 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 permanent taking on April 21, 1994, and granted Plainli ffs request to continue the trial until
October 12, 2004. Plaintiffs counsel was delegated the task of reducing the Co\Ut's announced
ruling to a proposed modified order. On August 18,2004, Judge Payne entered final judgment in
favor of the County as lo Plaintiff Hannelore Schleu. On September 24,2004, the County submitted
a proposed modified order consistent with the Co\Ut'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 Oclober 4.2004,
the Court entered verbatim Plaintiff's proposed modified order. Tbe trial was subsequently
continued until February 7, 2005. On October 22, 2004, the Counly filed a motion for rehearing
arguing, inter alia. the verbatim entry of Plaintiffs proposed modi tied order violated the procedural
due p'rocess right:s of the County. On November 2, 2004, Plaintiff filed a reply to the County's
motion for rehearing. On November 29, 2004, the COWlty ftJed an amended motion for rehearing
and/or motion for reconsideration. On December 13,2004, the Court granted the County's mOlion
and vacated the modified order of October 4, 2004. On December 27, 2004, the Court continued the
trial and ordered the parties (including Third-Party Defendant State of Florida) to participate in
nonbinding arbitration. .
(3) As to third party complaint against State of Florida, the State moved to dismiss for wlun:: 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 cowt denied the State's motion to dismiss as to the COWlty'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 Conunission 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 lllotion to hold petition in abeyance. TIle Court bas deferred the deadline for
the C~unty to file its response, pending resolution of matters in the underlying action. ($135,079.85
as of December 31 t 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 pursuing
administrative requirements for fi ling a claim Wlder the Bert Harris Act. County's motion to dismiss
is being held in abeyance until Plaintiff obtains a pre-application letter of understanding as to tbe
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level of development that is permissible on each. parcel of property. Plaintiff and County staffmet
on April 26, 2004, to discuss potential development. On August 17,2004, parties appeared before
the court for a status conference. Another status conference is scheduled for Febl'U8l}' 14,2005.
($14,481.42 as of December 31, 2004).
'PbelpslHardiD - Plaintiffs filed 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
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 ofpro5e(;ution. On September 27, 2004, the Court dismissed the appeal On October 5.
2004, Plaintiffl Appellant filed a motion for rehearing of order granting motion to dismiss appeal. On
November 5, 2004, the Court entered an ordcr granting Appellant's motion for rehearing and setting
aside and vacating dismissal. ($6,577.93 as of December 31,2004).
KilIan - 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 abcyance while Plaintiff seeks a beneficial use detennination,
as required to exhaust available administrative rcmedies 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. On September 2 1, 2004t the Court granted the
COWlty'S motion for an extension of tim.e, extending the deadline for the County to render a
beneficial use detennination until January 20, 2005. On October 26, 2004, a beneficial use hearing
was held and the parties are awaiting rendering of the Special Master's proposed order. ($2,542.57
as of Decemher 31,2004).
Other Matters
DepartDleDt of Community Affairs v. Monroe COUllty - 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 aHeges that the COWlty has
allowed higher ROOO scores than ShOUld have been allocated due to failure to 8rnCnd maps, thereby
allowing more residential development than should have been approved. Case was set for
administrative hearing in January 2004. DCA entered voluntary dismissal pendina adoption of
moratorium &: revised regulations, but moved forward with appeals as to individual permits (see
below). ($10.140.9.5 as of December 31,2004).
. Department of CommuDity Attain 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 FebruftI)'
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 Jot (the neighboring Jot 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 to allow for settlement
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negotiations. ($1,125.50 as of December 31, 2004).
O'Dlnicllnd HIIII v. Monroe County -AppellantsIPetitioners filed a vested rights claim in Circuit
Court on March J3, 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 pennit. The court affinned the
Special 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 AppellantslPetitiollers. The Court
held that AppellantsIPetitioners have vc~ted rights to maintain a mixed residential/commercial
stIUcture on the subject property, and to use the subject property for both residential and commercial
office purposes. The relief grantcd to AppellantsJPetitioners is relatively narrow compared to the
relief sought. The Coun, for example, held that (1) auy application for a change in commercial \ISe is
subject to CWTent regulations regarding non-conforming structures and uses, and (2) the commercial
portion of the structure must substantially comply with current standard building, e]eclrical,
mechanical and plumbing codes before 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 motions to tax costs and for attorney's fees pursuant to ~ 57.105, Fla. Stat. On
November 11, 2004, the County tiled 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
December 31,2004).
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 II th Circuit. County filed
its answer brief on March I, 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 11th Ciccuit. ($18,661.61 as of December 31, 2004).
Johnson - Writ of Mandamus challenging Director of Planning's determination that application for
lIbc?undary 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 deteI1llination may be placed on BOCC agenda without
the public notice required for II 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 the Monroe County Code if denied. ($1,807.87 as of
December 31, 2004).
SCOtty'5, at 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 Walgrccns.
Appellants filed notice of appeal on October 10,2003. On Fcbrwuy 16,2004, AU granted Florida
Keys Citizens Coalition's motion to intervene. Appellants filed their initial brief on May 4, 2004.
Florida Keys Citizen Coalition (intervenor) filed its answer brief On Jooe 8, 2004. The County filed
its answer brief on August 26, 2004. Appellants filcd a reply brief on November 8, 2004. Oral
argument is scheduled for January 31, 2005. ($6,014.63 as of Dccembcn- 31,2004).
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Smart PlaDning aDd Growth CoalitioQ v. Monroe County (Cinuit Court Case No. 03-CA-S07-
P) - SPOC 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 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. ($474.49 as of
December 31,2004).
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