Item H1
GROWTH l\tANAGEMENT LITIGATION REPQ!IT
TO:
Board of County Commissioners
Richard Collins
MeGan)"
Director, GrowJ1 Mai1agement Division
Thomas 1 Willi
COlmty AdJ-ninistrator
FROM:
Derek Howard, Esq>
Ivforgan & Hendrick
DATE:
February 9, 200S
V leatlon Rentals
Neumont (Federnl Class Action) - Plaimiffs filed a clas.s action suit in US District COtl!1: alleging
vacation rental ordinance (Ordinance 004-1997) was prematurely enforced, is an unconstitutional
taking ofPJaimifrs' properties, and was adopted in violation of due process, On June 20, 2004, the
U.S. District Court entered final judgment in favor of the County. On July 15, 2004,
Plaintiffs! Appellants filed a notice of appeal to the US Cour't of Appeals for the 1 hh Circuit from
final judgment of t..l-je Dist..rict Court, and all interlocutory orders giving rise to the judgment. 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 on October 15, 2004. On October 18,2004, a mediation conference was
held. On October 19,2004, the Court denied Appellants' motion to stay briefing and ruled motion to
certify state~law questions to the Florida Supreme Court is carried with t.l}e case. Appellants filed
thEir initial brief on December 1572004. The deadline for the Count'j's response has been extended
until February 22, 2005, ($101,214.04 as ofJanuwj31, 2005).
Takill2S Claims
Emmert - Complaint seeking inverse condemnation based on partial granting of beneficial. use
application. Plaintiffs were granted partial beneficial use fTom wetland regulations, thus expanding
the buildable area of their vacant Ocean Reef lot from approximately 1.800 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 i'Jlege
that Monroe County's actions have resulted in a denial of aU economic use of their property, despite
expressly al10viing a 2,500 square foot buildable an::cL 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 Novernber 29 and 30,2004. On November 2004, Plainti!fs filed an emergency motion
fur continuance; motion was heard UJld granted on November 24, 2004. Parties are awaiting an order
fe-setting case fur trial. On November 22, 200'4, Plaimiffs also filed a motion for leave to file 11
second amended complaint in order to add a claim of vesled rights, TIle motIOn was heard on
January 5, 2005, and the partjes are awaiting the Court's decision, ($64,001.20 as of January 31,
2005).
Galleon Bay - Tt-see cases: (1) appeal of vested rights decision; (2) takings claim; and (3) third
parry complaint againsr State of Florida seeking contribution, indemnity and subrogation,
(1) On June 17,2004, the 3rd DT.A. denied the County's petition for writ of certiorari.
As to ta1{ings claim, Judge Payne entered su:mmary judgment in favor of Plaintiff on liability on
November 10,2003, finding both a temporary and permanent taking ofrhe subject property. Case
was scheduied to proceed with a jury trial as to damages on August 9, 2004. At the pretrial
con.ference on July 26,2004, however, Judge Payne agreed to modify his: order on liability to find
only a pennfu"1ent taking on April 21, 1994, and granted Plaintiff's request to cominue the trial tL'1til
October ll, 2004. Plaintiff's counsel was delegated the task of reducing the Court's annolll1ced
ruling to a proposed modified order. On August 18,2004, Judge Payne entered finaljudgmem in
favor of the County as to PlaintiffHannelore Schleu. On September 24,2004, the County submitted
a proposed modified order consistent with the Court's July 26,2004, roling, On October J, 2004,
Plaintiff submitted a proposed modified order that substantively contradicted and strayed from L~e
Court's ruling; namely, !he proposed order found a temporary taking occurred. On October 4,2004,
the Court entered verbatim Plaintiffs proposed modified order. The tria! was subsequentIy
continued until February 7, 2005. On October 22,2004, the County filed a motion for rehearing
arguing, infer alia, Lie 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 reheal'1ng, On November 29,2004, the County filed an amended motion for rehearing
and/or motion fOf reconsideration, On December 13, 2004, the Court granted the County's motion
and vacated the modified order of Octoher 4, 2004, On Decem ber 27, 2004, the Court continued the
trial and ordered the parties (including Th.ird~Party Defendant State of Florida) to participate in
nonbinding arbitration, which is scheduled to begin on March 29,2005,
(3) As to third party complaint against State ofFlodda, 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, L~e coun derJea the State's motion to dismiss as to the County'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 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~f:tnal
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 County 10 file its response, pending resolution of matters in the tmderlying action, ($145,224.82
as of January 31, 2005; does not include prior Galleon Bay matters).
GOQd - Plain1iff is seeking declaratory relief and takings cla.im for ~ 16 acre Sugarloaf Shores
property due to commercial moratorium which began January 4, 1996, Plaintiff is also pursuing
administrative requirements for filing a claim under the Bert Harris Act. County's motion to dismiss
is being held in abeyance until Plaintiff Dbtains a pre-application letter of understarlding as to the
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level of development that is permissible On each parcel of property. Pluintiffa!ld County staff met
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 February 14,2005.
($14,511.42 as of ]i:'..nuary 31, 2005).
Phelps/Hardin - Plaintiffs filed claim in federal court for due process and inverse condemnation
based on code enforcement proceedings that resulted in a lien on Plaintiffs' propert'f. 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 1a.ck of prosecution. On September 27, 2004, the Court dismissed the appeal. On October 5,
2004. Plaintiff/Appellant filed a motion for rehearing of order granting motion to dismiss appeal. On
November 5,2004, the Comt entered an order granting Appellant's motion for rehearing and setting
aside and vacating dismissal. ($6,577.93 as of January 31,2005).
Kalan 4 Takings claim filed as to residential property in Cal>J1i Pines &. Palms subdivision for failure
to obtain ROGO allocation in 4 year period. Based on County's motion to dismiss, the parties agreed
to emry 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
JUIle 24, 2004, the Court entered an order requiring the County to render Ii benet1cia1 use
determinatton 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 until January 20,2005. On October 26, 2004, a beneficial use hearing
was held and the parties are stm awaiting rendering of the Special Master's proposed order. The
County has ulerefore filed another motion to extend the deadline for the County render a beneficial
use detennination, which remains pending. ($2,750.77 as of January 31, 2005)
Other Matters
Department of Community Affairs Y. 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 faHing to routinely amend endangered species maps, and vegetation
surveys .15 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 sei for
administratlve hearing in January 2004. DCA entered voluntary dismissal pending adoprion of
moratorium. & revised regulations, but moved forward with appeals as to individual pennits (see
below). ($10,140.95 as of January 31, 2005).
· Department M 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 a.'1d LDRs in scoring the application for development On February
25,2004, the ALl dismissed Respondent Nancy Suarez-Cannon from the case because she
sold the t.hree subject lots to DC6, L.L.C On }...1ay 4! 2004, DC6 (intervenor) sent settlement
proposal to DCA in whieh it proposes to relocate the subject building permit to a neighboring
cleared lot (the neighboring lot is the subject ofa code enforcement proceeding in which the
County alleges the lot was illegally cleared). On November 4, 2004, DOAH granted the
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parties' joint motion for continuance and placed case in abeyance to allow for senlement
negotiations. ($1,297.00 as of January 3 I, 2005).
Q'Daniei and Hills v. Monroe County -Appellants/Petitioners filed 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 cornmercial business on tlle subject, which is in a
residential zoning district, without having first obtained a special use penult, TIle court affirmed the
Special Master's finding and order. The vested rights c}aim went to bench trial Dn May 25, 2004. On
October 7, 2004, the Court entered its final judgment in favor of Appellants/Petitioners. The Court
held L.1.ut AppeHantslPetitioners have vested fights to maintain a mixed residential/commercial
structure on the subject property, and to use the subject property for both residential and com.rnerdal
office purposes~ The rdief granted to Appellants/Petitioners is relatively narrow compared to t.~e
reHef sought. The Court, for example, held that (1) any application for a change it.! commercial use is
subject to current regulations regarding non-confonning structures and uses, and (2) the commercial
portion of the stru:cture must substantially comply with current standard building, electrical,
mechanical and plumbing codes before a certificate of occupancy is issued. The Courr did not vacate
its prior order affirming the Code Enforcement Special Master order. On November 4, 2004,
Petitioners filed motions 10 tax costs and for anomey's fees pursuant to * 57'! 05, Fla, Stat. On
November 1 I, 2004, the County filed a motion to strike Petitioners' motion for attorney's fees, A
hearing On the County's motion to strike was held on January 13,2005 The parties are awaiting
entry of the order on the Court's ruling to grant the County's motion, which Appellants/Petitioners
intend to a.ppeal to the 3rd D.C.A. ($29,216.64 as of January 31, 2005\
Industrial Communications & Electronics- Federal case aJIeging \>v1rdess 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 tll Circuit. County filed
its answer brief On March 1, 2004. Federal appeals coun mediation process stayed the appeal
pending action on I.C.E 's proposed settlement, which was presented to and rejected by BOeC.
Parties are awaiting setting of oral argument by 11th Circuit ($18,661.61 as of January 31, 2005).
Johnson ~ Writ of Mandamus challenging Director of Planning's determination that application for
"boundary detennination" by alleged error requires zoning map amendment application. Apphca11t
applied for boundary detelminatiol1 based on allegation that BOCC previously adopted change in
zoning. Direclor'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 deterrnination 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 derjal or approvai (application was previously returned as incomplete)
and Plaintiffs may appeal as provided by the Monroe County Code if denied. ($1,807.87 as of
January 31, 200S)
SCOttyfS~ et al. v, Monroe County - Appeal to DOAH of PIanr.Jng Commission'S denial
amendment to a major conditional use to demolish an existing structure and build a new Walgreens.
Appellants filed notice of appeal on October 10,2003, On February 16,2004, AU granted Florida
Keys Citizens Coalition's motion to intervene. Appellants filed their initial brief em. May 4, 2004.
Florida Keys Citiz.en Coalition (intervenor) filed its answer brief On June 8, 2004. The County filed
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its answer brief on August 26,2004. Appellants fi1ed 11 reply brief on November 8, 2004. The AU
heard oral argument on January 31,2005, and the parties are awaiting the ALl's decision. ($9,117.13
as of January 31, 2005)
Smart Planning and Growth Coalition v~ Monroe County (Circuit Court Case NQ, 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 DOAH for tack ofjurisdicrion. Plaintiffs filed action in circuit court on same
grounds. County prevailed on its motion to dismi.ss 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
January 3 L 2005).
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