Item J4
Hugh 1. Morgan
James T. Hendrick
Robert CintrOTl, 1r.
Derek V Howard
LA W OFFICES
MORGAc~ & HENDRICK
317 WmTEHl;'AD S-rREET
KEy WeST, FLORIDA 33040
TELEPHONE 305296,5676
FACSlJYfILE 305.296.4331
W, Curry HlL-TIS
{1907-1988}
Hilary U, Albury
(1920-1999)
FAX TRANSMISSION
TO: Mayor Dixie Spehar
Mayor Pro T em Charles McCoy
Commissioner George Neugen1
Commissioner David Rice
Commissioner Murray Nelson
Richard Collins, Esq.
Thomas J. Willi
Tim McGarry
(292-3466)
(292-3517)
(872-9195)
(289-6306)
(852-7162)
(292-3516)
(292-4544)
(289-2854)
FROM:
TR for Derek V. Howard, Esq,
DA TE:
October 7,2005
SUBJECT:
Grov.-1h Management Litigation Report
Total number of pages including this cover sheet:
ORIGINAL DOCUMENT(S):
X WlLL NOT BE SENT \\'lLL BE SENT
REGULAR Oy"'ER:N1GHT
COM'\lENTS: Our File # 160-01
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296.5676. Tl)S following is nUT flU nUl11b~r 31.lS.!%-4331.
P.O. Box i 117, KEY WEST, Fl 33041 . TELEPHONE 305296-5676 0 FACSIMILE 305296-4331
--------''n.- ___ . __ _.....,.......,... __CCCCCM~M _. _.~~ ~ ~_.
GROWTH MANAGEMENT LITIGATION REPORT
TO: Board of County Commissioners
Richard Coilins
County Attorney
Timothy McGarry
Director, Growth Management Division
Thomas J" Wmi
COlli'1t'j AdrrJnistrato!
DATE:
Derek Howard, Esq.
Morgan & Hendrick
October 6, 2005
FROM:
Vacation Rentals
Neumont (Federal Class Aetion)- Plaintiffs filed a class action suit in V,S. District Court alleging
vacation rental ordinance (Ordinance 004-1997) was prematurely enforced, is an unconstitutional taking
of their properties, and was adopted in violation of due process, On June 20~ 2004, the U $. District
Court entered fmal judgment in favor of the County, On July i 5, 2004, Plaintiffsl Appellants filed a
notice of appeal to the U.S. Court of Appeals for the 11 th Circuit from final judgment of the District
Court, and aU interlocutory orders giving rise to the judgment. On September 15, 2004, Appellants filed
a motion to certify state~law questions to the Florida Supreme Court and to postpone briefing pending
certification; the County fikdits response on October 7; Appellants filed a reply on October 15,2004,
On October 18, 2004, a mediation conference 'A'US held. On October 19, 2004, the Court denied
Appellants' motion to stay briefing and rul-ed rn<>tion to certify state-law questions to the Florida
Supreme Court is carried with the case, Appellants filed their initial brief on December 15, 2004.
Monroe County filed its response brief on February 22, 2005. Appellant:> filed their reply brief on
March 11,2005. On April 7,2005, Momoe County filed a motion for leave to file a surrepiy bridin
response to Appellants' new argument relating to the Class Action Fairness Act of2005. On April 21,
2005, Appellants filed their response to Monroe CQunty's motion, which included a declaration of a
local property manager offered as support for Appellants' assertion that a majority oflhe subject class
members are out-of-state residents, On April 27, 2005, Monroe County filed a motion to strike the
declaration, which was denied on May 25, 2005. On May 2,2005, the Coun entered an. order granting
Monroe County's motion for leave to file a surreply brief; brief was filed on May 24, 2005. Oral
argument is scheduled for Octoher 26,2005. ($ 123,565A9 as of August 31,2005).
Takin2.s Claims
~~~(}S~ - Declaratory action claiming vested rights under !}3 80,05( 1 S) based on filing of subdivision
plats. Pursuant to summary judgment prcceedings and his previous orders, Judge Payne ordered that
Plajnliffs prove O\\llersrup of a single Plaintiffs' lot so that legal issues may be appealed rather than
spend extensive time in trial court litigating ownership issues as. to. each let at issue, Various
environmental groups were also granted leave to intervene, Court entered final summarJ judgment for
r~ _ ___ _, ~L' -______ ~,~.C ~r"'"
approximately 75 Plaintiffs. Defendants appealed final Order. Third District reversed, holding t.~at
vesting is not established by mere recording of plats; &tatute requires showing of reliance and change of
position to establish vesting. Plaintiffs' motion for rehearing was denied on February J 8; 2004. On
March 18, 2004, PlaintiffslPetitioners filed a notice to invoke t.~e discretionary jurisdiction of the
Florida Supreme Court. On July 9, 2004, the Florida Supreme Court derued Plaintiff sf Petitioners'
petition for review. On July 14,2005, DCA filed a mO!i?~l~I')?1~~S~..~.~ .~j~~~;.c~.~~tion for failure
to prosecute; Monroe County joined in the motion. ~~Q~~~~;9.$",~:()t~UJ~"~ll.~~t;lQ~~:;
Emmert _ Complaint seeking inverse- condemnation based on application o(Monroe County's wetland
regulations. plaintiffs allege that Monroe County has deprived them of all economic use of their
property, despite the fact that they were granted partial beneficial use from the subject regulations,
which expanded the builda.ble area of their vacant Ocean Reef lot from approximately 1,800 to 2,500
square feeL Plaintiffs argue that their ability to build 'lMithin this area is encumbered by Ocean Reef
Club Association deed restrictions. requiring setbacks in excess of those required by Monroe County.
Monroe County's motion to dismiss was denied on December 12, 2002. Mediation was held on October
21, 2004. Case waS set furbench tria} on November 29, 2004. OnNovember 22,2004, Plaintiffs filed
an emergency motion for continuance; motion was heard and granted on November 24, 2004. On
November 22. 2004, Plaintiffs also filed' a motion for leave to file a second amended complaint in. order
to add a claim of vested righK The motion was heard on January 5, 2005. On March 10,2005, the
court entered an order granting Plaintiffs' motion for leave to file Ii second amended complaint; the
complaint was filed on. ~1arch 31, 1005. On March 31, 2005, Plaintiffs also moved fOf the entry of
default judgment against the County for failure to file an answer to the second amended complaint
(despite the fact that the second amended- complaint Vlias not previously filed)~ the County moved to
strike Plaintiffs' motion on April 4, 2005. The County timely filed its answer to the second amended
complaint on AprilS, 2005. On May 3, 2005, Plaintiffs filed a rnoti:onfor-partial summary judgment
directed to their vested rights claim (Count n. Plaintiffs' motion was heard on September 15,2005;
proposed orders were submitted and the parties are awaiting the court's ruling. A case management
conference is scheduled for October 14,2005. The trial has been set for the two (2) week trial period
beginning December 19,2005. ($90,727.95 as of August 31, 20(5).
Galleon Bay - Three cases: (1) appeal of vested rights decision: (2) takings claim; and (3) third party
complaint against the State of Florida seeking. contribution, indemnity and subrogation.
(1) On June 17,2004, the Jrd D.C-A. denied the County's petition for writ of certiorari.
(2) As to the takings clairo,Judge Payne entered summary judgment in favor of Plaintiff on November
10,2003. The order of the court found that a temporary taking began on April2l, 1994, and would
cease on the date of the jury Vefa-let, at which time a permanent taking would arise, The 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 Habi-lity to fmd only a permanent
taking on April 21, 1994, and granted Plaintiff's request to continue the trial until October 12, 20040
Plaintiff's counsel w--as delegated the task of reducing the Court's announced ruling to a proposed
modified Older. On August 18,2004, Judge Payne entered fmal judgment in favor of the County as to
PlaintiffHanndore Semen, 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 contraclicted and strayed from the Court's ruling; namely, the proposed
order found that a temporary taking occurred on April 13 , 1997, On October 4, 2004, the Court entered
2
-- -, --,~ _. .- -.
verbati.:n Plaintiffs proposed modified order. The trial was subsequently continued until February 7,
2005.
On November 29, 2004, the County filed an amended motion for rehearing and/or motion for
reconsideration arguing, inter alia, the verbatim entry of Plaintiffs proposed modified order violated its
procedural due process rights. On December t 3, 2004, the Court granted the County's motion and
vacated the modified order of October 4,2004, On December 27,2004, the Court entered its Order for
Nonbinding Arbitration.
On May 5-6, 2005, the parties (inchlding Third-Party Defendant State of Florida) participated in
nonbinding arbitration before Gerald Kogan~ Esq" a former member of the Ftorida Supreme Court, The
issues arbitrated included (1) whether the tak:ing found to have occurred by the trial court was
permanent or temporary (or both); (2) the applicable measure of damages for the taking; and (3) whether
Monroe County is entitled to a contribution from the State as to all or a portion Of the justcompensatiol1
that Plaintiff is owed for the taking. The issue of liability was not arbitrated, pursuant to the trial court's
arbitration order. On June 3" 2005, Kogan rendered his decision, substantially finding in favor of
Monroe County on aU of the issues arbitrated, Kogan rejected Plaintiffs "two~takings" theory of
recovery, fmdingthat there has oruybeen a pe....-nanenttakingfor which Plaintiff is entitled to the fair
market value of the property on the date of the taking, plus simple interest at the statutory rate until the
compensation is paid, as just compensation (Plaintiff argued that it was entitled to rebut the statutory
rates with other rates of return that it could have achieved through selective investments, and that the
rate of return is applied on a compound basis), Kogan also found that Monroe County is entitled to a
50% contribution from the State as to compensation owed to Plaintiff. On June 6, 2005, Plaintiff
rejected the arbitrator's proposed award and moved for Morder setting the case for trial.
Prior to the arbitration proceeding, Plaintiff filed a motion to amend the summary judgment order of
November 10,2003, and notice of confessioltofenor (seeking to change the taking date of April 21,
1994, to April 13, 1997)0 Thus, ail the parties now agree that there was no taking on April2l, 1994.
The State filed its response tcr Plaintiff's mfrhon-tO' amend 00 May IS, 2005. The CO\ffity filed its
response to Plaintiffs motion on June 20, 2005, At a hearing on June 21} 2004, the Court ruled that it
would rehear all issues ofliability, notwithstanding its prior decisions, and set September 19, 2005, as
the deadline for the filing of any amended or supplemental summary judgment motions (order entered
on September 16, 2005). Upon motion to the court, the filing deadline for Monroe County was
extended oot11 October 4, 20050 On September 9,200S,Monroe County filed a motion to vacate the
summary judgment order of November 10,2003, which remains pending. On July 18,2005, the State
filed answers to the CO\ffity'sthirdpartyeomplaint and to Plaintifi'ssecond amended complaint. On
September 26. 2005, the State served its motion for summary judgment. Plaintiff did not file an
amended or supplemental smnmary judgment motion by the deadline set for such motions, nor did it
request an extension of time to do so. Ou September 30,2005, Plaintiff served a "Motion for Leave to
Serve and File Motion Lare," seeking tofiJe another "Motion to Amend the Court's Prior Liabilit'j
Order," which alleges, thata taking occurred mduly19 200 1 (not April 13 . 1997, as alleged in previous
motion to amend). On October 4, 2005, Monroe COlla'll)' served its Cross-Motion for Summary
Judgment and Memorandum of Law. An pending motions are set for hearing on October 14, 2005e
(3) As to the third party complaint against the 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
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COU.'ity'S dmn1 of contribution, as well as the State's motion to transfer. On May 24, 2004, the State
moved to substItute t..'Ie 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.CA ofllie non-final
order denying the motion to transfer venue (Case No. 3D04-2(}36) and petition for v.,nt of
prohibition/certiorari (Case No. 3D04-1920). 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 deferred the deadline for the County to file its response, pending resolution of
matters in the underlying action. On July 1 &, 2005, t.~e State filed motions to dismiss both the petition
for writ of prohibiti<>nJcertiofarl and the appeal. On August 30~ 2Q05, the Court entered an order
granting the State's motion to dismiss the appeaL On September 2,2005, the Court entered an order
granting the State's motion to dismiss the petition for"Vrit of prohibitIon. ($-209,4-95.65 as of August31 ~
2005; does not include prior Galleon Bay ma.tters).
Good _ Plaintiff is seeking declaratory judgment t.~at he be awarded "economically viable uses" as to
his: Suburban Commercial and Des.tinati.on.Resort-zoned properties on Lower SugarloafKey, as weB as
declaratory judgment "that the existing nonresidential. moratorium be declared un1a\~1Ul" (despite fact
that moratorium ended '\!vim the OOoptl()n of NROGO}. Plaintiff is also seeking damages for inverse
conderr.nation based on the application of Monroe County's non-residential development moratorium
3..Ild regulations. In a separate proceeding, Plaintiff is pursuing a claim under the Bert Harris Act. On
August 27, ZOOl, Monroe County filed a motion to dismiss Plaintiffs first complaint; the motion was
denied on October 29, 2001 ~ On May 12,2003, PlaLl1tifffiJecl an amended complaint. On June 6} 2003,
Monroe County filed a motiott to dJsmis;sthe amended complaint. On June 23,2003, the Court entered
an order stating that the County's motion to dismiss is under advisement, and holding case in abeyance
until Plaintiff obtains a letter of understanding as to' the permissible uses available on the subject
properties, Plaintiff and County staff met on April 26, 2004, to discuss potential development. On
February 14,2005, the parties appeared before the court for a status conference, On February 17,2005,
Plaintiff again met "'With County staff to discuss potential development On March 7, 2005, the County
issued a letter addressing L~e proposed development of Tracts A and B (property S. of US. 1), On July
25, 2005, the County issued another letter addressing the remaining subject properties. On August 1,
2005, the parties appeared before the Court for a case management conference. The Court reinstated
the case. On September 1,2005, Plaintiff served amotkm fOf leave to amend its complaint, which the
County has opposed (proposed amended complaint alleges takings based on events that have occurred
since the case was filed and adds the airstrip parcel owned by Good consisting of 54 acres). Plaintiff's
motion is set for hearing on October 17, 2005. ($ 16,318.03 as of August 31, 2005).
Hardin - Two cases: (1) case filed in federal district court alleging due process violations and inverse
condemnation based on code enforcement orders that resulted in a lien on Plaintiffs' property and (2)
appeal of the code enforcement ordersto-tbe state Clrcuitcourt, pursua.."1t to Florida Statute 162.1 1.
(1) As to the federal case, the district court entered its- OrOOI of Final Judgment in favor of Monroe
County on August 18,2003, dismissing Piaintiffs case with prejudice, based onrcmstatement of state
court appeal of code enforcement orders.
(2) On September 3, 1999, ~'\ppenant (a pro se litigant) filed her notice of appeal nom the foHo'Nt.."1g
orders entered by the Code Enforcement Special Master in Case Noo L9~98~409: Order Denying Motion
for Rehearing, Order Denying Motion Fm Stay ofFmes.; and Order Imposing Penalty/Lien (Appellant
did not timely or belatedly appeal the Findings of Fad, Conclusions of Law, and Order entered by the
4
Special Master on April 16, 1999, which found Appellant in violation of various provisions of the
Monroe County Code relating to building permits and enclosures below the base flood elevation).
Appellant filed her Initial Brief on September 22, 1999.
On October 19, 1999, Monroe County filed its motion to dismiss based on various procedural grounds.
The Court granted. the motion on September 27,2004. Upon the filing of a motion for rehearing by
Appellant, the court entered an order vacating its order granting the County's motion to dismlss and
denying the County's motion on November 5, 2004.
The ruling on the County's motion to dismiss of October 19, 1999, was delayed because the Court ha.d
previously entered an order sua sponte dismissing t..lte appeal based on the absence of record activity for
a period of over one year. The court vacated the order on June 24,2003. On August 10,2004, Monroe
County filed a motion to dismiss for lack of prosecution, which remains pending,
Monroe County has not filed its Answer Briefbecause several pending motions of Appellant, including
a motion to postpone the proceeding (filed on February 22,2000) are tolling the time schedule of the
proceeding.
On June 27,2005, a case management conference was held before Judge Miller; the pending motions
were set for hearing on August 1, 2005. On August 1, 2005, the Court deferred ruling on the motions
and ordered the AppelJant to produce a record of the code enforcement proceedings below. In
September 2005, the case file was transferred to the County Attorney's Office and a notice of
substitution of counsel '-"111 be filed. ($ I 0,241.57 as of August 31, 2005).
Ka,1,a,# ~ 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 panies 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 requiringthe County to render Ii 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 until
January 20, 2005, On October 26, 2004, a beneficial use hearing was held before the Special Master.
The County filed another motion to extend the deadline for the rendering of a beneficia! use
determination, which remains pending. On March 4,2005, the Special Mas!~~.!e~~.e:~~~,~pr<?fl{)sed
denial of beneficial use, which was adopted by the BOCC on June 15, 2005. f$:1?,~~'!i)j?:'~:~1-Hl!\A.:Ugg$~
Other M'!tters
O'Daniel and HiDs v, Monroe County - Petitioners filed a vested rights claim in Circuit Court on
March 13) 2002, Petitioners also appealed finding of Code Enforcement Special Master that they were
condu<.:ting a commercial busines.s on the subject, which is in a residential zoning district, Vlithout
having first obtained a special use permit. The Court afft.."1lled 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 Petitioners. The COWl held that AppellantsIPetitioners have vested rights to
maintain a mixed residentiillcommercial structure on the subject property, and to use the subject
property for both residential and commercial office purposes. The relief granted to Petitioners is
5
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 cunent regulations regardingnon~conform.ing structures
and uses, and (2) the commercial portion of the structure must substantially comply .....i.th cu.rrent
standard building, dectrical, mechanical and phnnbing cOOes before a certificate of occupancy is issued.
The Conrt did not vacate its prior order affirming the Code Enforcement Special Master order.
On November 4,2004, PetitionerstHed motions to tax costs and for attorney's fees pursuant to S 57.105,
Fla. Stat. On November 11, 2004y the County filed a motion to strike the motion for attorney's fees for
Petitioners' failure to comply with the procedural requirements of ~ 57.1 05, On February 9, 2005, the
Couli entered its order gran"Jng the County's mOllon, On March 7, 2005; Appellants/Petitioners filed a
notice of appeal as to the order granting the County's motion to strike. AppenantslPetitioners filed their
Initial Brief with the Third District Court of Appeal on June 6, 2005, arguing that S 57.105 is
constitutionally infirm because the legislature may not enact rules of court practice and procedure. The
County filed its Answer Brief on August 16,2005. Upon motion of Appellants, the deadline for the
filing of me Reply Brief was- deferred until September 26, 2005. Oral argument is scheduled for
October 19,2005. ($40,710,63 as of August31, 2(05).
jh~~t'Q~l~~!p~WDi~~!~i~~:~f"C1:Ei~~'.~gl(~'j:~,iMt{ti'~!~~Q~ty; - LeE. filed action against Momoe
County in federal court alleging v.ireless tower mOlatoria,,'iolated the Federal Telecommunications Act
of 1996 and the Fifth and F ourteenthAmendments to the United States Constitution. The district court
granted the county's motion to dismiss on grounds of res judicata/collateral estoppel (claims were
identical to those brought in state cou.,rt action and plaintiff failed to reserve federal claims therein),
LeE appealed the decision to the 11th Circuit.
On May 27,2005, the 11th Circuit vacated the judgment of the district court, but remanded with
instruction to dismiss the complaint for lack o!j~?~~~~?~;".AJ~~?~?s~~?~~:r",~as submitted by the
County to the district court on June 28, 2005. ($'J~..2<<&):2:?,',~",p.f1711:ygl@,:31!~~(l~~)~
Johnson - Writ of Mandamus challenging Director of Planning's determination that application for
"boundary determination" by alleged error requires zoning map amendment application. Applicant
applied for boundary determination based on aIJegation that BOee 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 infOlmed ov.ner to properly file
for zoning map amendment. (Boundary determination may be placed.on BOCC agenda without the
public notice required for a zoning change). Pursuant to oral argument, Monroe C0ill11y agreed to re-
process application for denial or approval (application was previously returned as incomplete) and
Plamtiffmay appeal as provided by the Momoe County Code if denied. On May 26, 2005, opposing
counsel submitted a proposed fInal judgment for the County's consideration. On August 30, 2005, a
proposed stipulated settlement agreement was submitted to opposing counsel for oonsideration
($2,219.62 as of August 31, 2005).
~t~fa,;;;~j~~J ct al. v. Department of Community Affairs & Miami-Dade County (Monroe County
& City of Homestead as Intervenors) - On October 10, 2002, the Miami-Dade County Board of
Cou."1ty Commissioners approved Ordinance No. 02-198, which amends the Land Use Element and
Transportation Element of Miami Dade1s Comprehensive Grov.th ~1anageme!lt Plan to change the
designation of Krome Avenue from a "Minor Roadway" (2 lanes) to a "Major Roadway" (3 or more
lanes). On January 1 0,2003, Petitioners filed a petition for fonnatadministrativehearing to challenge
6
DCA's finding that this and other amendments to the Miami-Dade's Plan are "in compliance" as defIned
in section 1633184(1 )(b), Fla. Stat On December 16, 2003~ the ALJ granted Monroe County's petition
to intervene. On March 22,2004, Mia....ru-Dade filed a motion to relinquish jurisdiction to DCA In
December 2004, the parties reached a tentative settlement agreement,. but the Board of County
Commissioners of Miami-Dade County formally rejected the agreement on March 1,2005. On April
11, 2005, City of Homestead filed its petition for leave to intervene (in support of Miami-Dade); OOAH
granted the petition on May 4, 2005, On May 11,2005, Petitioners filed theirresponse to Miami-Dade's
motion to relinquish jurisdiction; the response was adopted by Monroe County. On June 3, 2005, DCA
filed its response to Miami-Dade's motion to relinquish jurisdiction, asking the ALJ to deny the motion.
On July 21, 2005, DCA withdrew its response and joined in Miami-Dade's motion to relinquish
jurisdiction and to issue a recommended order. On August 22, 2005, the ALJ denied ivfiami-Dade's
motion to relinquish jurisdiction. The final hearing Was hel~S:ptemb7r 21-2~<Ul~.27-29~ at whic~
~:d~i{~vg~;Il~~~~'i'~~i6~~rty. '~g~'i~,~~e~;'?rtjt~~~g'p~~0~e~~lQY',Morg~,~
7