Item M1
---~.- ------
Hugh J. Morgan
James T. Hendrick
Karen K. Cabanas
Robert Cintron, 1r.
LAW OFFICES
MORGAN & HENDRICK
317 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSIMILE 305.296.4331
W. Curry Harris
(1907 -1988)
HilalY U. Albury
(1920-1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY
COMMISSIONER GEORGE NEUGJ~NT
MAYOR DIXIE SPEHAR
COMMISSIONER DAVID RICE
MAYOR PRO TEM MURRAY NELSON
RICHARD COLLINS, ESQ.
JIM ROBERTS
BELLE DESANTIS, CLERK'S OFFICI?,
TIM MCGARRY
FAX#:
292-35771/"
872-9195'/
292-3466V
289-6306\/
852-716ZV"'
292-3516V
292-4544\/
295-3663
289-2536
FROM:
DATE:
SUBJECT: GROWTH MANAGEMENT LITIGATION REPORT
TRANSl\flTTER:
Total number of pages including this cover sheet: 5
ORIGINAL DOCUMENT(S):
-X WILL NOT BE SENT
REGULAR
KAREN CABAN AS, ESQ.
JULY 14; 2003
COMMENTS:
\VILL BE SENT
OVERNIGHT
OUf File # 161).01
Thc information cOllrainal in rhis facsimile message i~ anorncy privilegca and confidential. iDteDded only Ior me woe of the individual Or entity
Jl.1lIJeO above. If [he reader of this mt:Ssage is nOllhe inlCnded rccipienr, you are hereby notified that any dis.~emiJ1.1tion, disrribution Of copy oi lhis
communication is srrictly prohibited. If you have received lh.is communication in error, ple..1Se immediately notify us by relcpbQne and return !be
Ol'iginallIlessas" [0 us at ~ above: address VIA me 1..J. S. POStal Sl:fviee. If yOIl do not receive all pages. plt:aSe call back as SOOll as possible 30:i-
29G-:i676. The following is our fax number 305.296-4331.
P.O. Box 1117, KEY WEsr. FL 33041 . TELEPHONE 305296-5676 . FACSIMILE 305296-4331
/VII
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM:
Karen Cabanas
DATE:
July 15,2003
Vacation Rentals
N en mont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was
prematurely enforced, is an unconstitutional taking of Plaintiffs' properties, and was adopted in
violation of due process. The Court has ruled in favor of County on all but counts 11 through 13.
However, those counts are directly based on the declaratory action brought in count 10, on which the
Court has ruled in favor of County. The case has been removed from the trial calendar and the
parties expect the Court to enter final judgment in favor of County on all remaining counts.
Plaintiffs have stated that they intend to appeal to the 11 th Circuit onee a final judgment is entered as
to all remaining issues. ($76,618.75 as ofJlme 30,2003).
Takin2s Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Cross-motions for Summary Judgment were heard June
6. The Court has vacated its prior order which had granted partial sununary judgment in favor of
Monroe County, holding that any physical taking may only have occurred within a two-month
period. Case has been taken over by Alan Greer, Esq. who handled original litigation. Case is set for
trial in January, 2004 and mediation is to be held in July/August. ($22,664.50 as ofJune 30, 2003).
Galleon Bay - Two cases: Appeal of vested rights decision and taking claim. Awaiting ruling from
3rd DCA on vested rights appeal. County's motion to dismiss taldng claim was denied and case will
proceed with discovery. ($18,327.75 as of June 30, 2003) (does not include prior Galleon Bay
matters) .
Phelps/Hardin - Claim brought in federal court for due process and inverse condemnation based on
code enforcement proceedings that resulted in a lien on Plaintiffs' property. County has filed for
summary judgment in federal case because Plaintiffs circuit court appeal of code enforcement
findings had been re-opened. ($5,256.50 as of June 30, 2003).
Pontin - Case alleging temporary and pemlanent taking of property due to allegedly conflicting
regulations of COUlJty and ACOE/DEP wherein each required the other's prior approval before
issuing pennits 10 fill land & plant trees. Monroe COlmty's motion to dismiss was granted based on
a prior beneficial use order stating the level of development allowed on the property_ Plaintiffmay
develop ifhe can obtain fill permits from DEP. Ifnot, his taking claim exists exclusively as to DEP.
($3,570.00 as of Jlme 30, 2003).
Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to
commercial moratorium which began January 4, 1996. County's motion to dismiss is being held in
abeyance l.mtil Plaintiff obtains a pre-application Jetter of understanding as to the level of
development that is pennissible on each parcel of property. ($7,942.50 as of June 30, 2003).
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 feet.
However, Plaintiffs camlOt build within this area due to Ocean Reef 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
grounds that court has original jurisdiction over constitutional claims & cannot be bound by Hearing
Officer's findings. Parties are proceeding with discovery. ($2,957.50 as of June 30, 2003).
Other Matters
Taxpayers for Electritication of No Name Key - Declaratory, vested rights, and S 1983 claims
challenging Monroe County's policy that installing commercial electric service to No Name Key is
prohibited by the 20 I 0 comprehensive plan. Proposed settlement agreement was denied by BOCC;
case will proceed in litigation. Property owners opposing electrification were granted leave to
intervene. Court granted Monroe County's motion for summary judgment. Plaintiffs have filed a
vo I untary dismissal of their appeal. ruling in favor of County now final. ($14,914.50 as of June 30,
2003).
Clay (Big Pine Moratorium) - Complaint filed against Monroe County alleging various claims
(takings, vested rights, etc.) based on the de facto building moratorium on Big Pine due to the traffic
level of service and concurrency mandate. Judgment was entered in favor of Mamoe County on
basis that concurrency is a state-imposed mandate, not a County regulation; also based on fact that
FDOT is responsible for upgrading U.S. 1, not Monroe County and issuance of any building permits
by Monroe County may violate state concurrency and Endangered Species Act provisions_ Plaintiffs
appealed to 3rd District Court of Appeals which affirmed the trial court's ruling in favor of County_
Plaintiffs' motion far rehearing of3rd DCA's order has been denied. Plaintiffs are still within their
time frame to seek petition for certiorari to FL Supreme Court. ($] 7,549.00 as of June 30, 2003).
Ambrose - Declaratory action claiming vested rights under 9380.05(18) based on filing of
subdivision plats. Pursuant to summary judgment proceedings and his previous orders, Judge Payne
ordered that PlaiJltiffs prove ownership 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 lot at issue.
Various environmental groups were also granted leave to intervene. COUlt entered final slillunary
judgment for approximately 75 Plaintiffs. Final Order has been entered by Court and all Defendants
have filed notices of appeal. Oral argum.ent was held February 5, 2003. Awaiting ruling.
($55,973.75 as of June 30,2003).
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Upper Keys Citizens Association - Appeal to Div. of Admin. Hearings of Planning Commission's
approval of North Key Largo sub-station for Fla. Keys Electric Co-Op. Hearing officer's order
upholding plarming Commission resolution was upheld, but Plaintiffs have filed further appeal to
circuit court. COlffity'S response is due July 28. ($11,767.50 as of June 30, 2003).
Lawson - Appeal of Monroe County Planning Commission resolution. eountyhas filed motion for
extension to file answer brief. ($112.50 as of June 30, 2003).
Johnson - Writ o[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 allegation that BOCe previously adopting change in
zoning. Director's determination was based on review ofrecords failing to show any error or prior
consideratiol1 of such zoning change. Director rejected application and informed OVJI1er to properly
file for zoning map amendment. (Boundary determination may be placed on BOeC agenda without
the public notice required for a zoning change). Hearing on mandamus is being re-set. ($942.50 as
of .Ttme 30, 2003).
Stoky - Certiorari appeal of County's denial of permit to reconstruct certain square footage due to
various nonconfonnities with existing LDRs. Judge Payne reversed hearing officer's order and
Plaintiffs will be pennitted to re-build nonconfoIDling screened porch. Order holds that all tUllawfnl
structures that are not capable of prosecution are "lawful" for purposes of non-conforming
regulations and protected by 50% rule. Order based on language in code enforcement chapter of
code that was only intended to apply to chapter 6. Staff has been advised to draft amendment to
language to correct inconsistency with intent of code provisions. ($3,262.50 as of June 30,2003).
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission alleging that COWlty has 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. Also alleges that County has allowed higher ROGO scores
that should have been allocated due to failure to amend maps, thereby allowing more residential
development than should have been approved. Settlement discussions are proceeding and case is in
abeyance - parties intend to resolve based on tier system/rogo amendments presently 1ll1der
consideration for adoption. ($2,622.50 as of June 30, 2003).
Department of Community Mfairs v. G. Contreras; DCA v. D. Contreras - Two petitioJls by
DCA before FLA W AC challenging residential building permits issued on Key Largo for on same
gr01Ulds as above case. Case in abeyance - see above. ($75.00 as of June 30, 2003).
Eads v. Monroe County - Three pending cases: (1) Appeal ofBOCC decision to deny rescindment
of designation and original declaratory action alleging de-designation criteria is violation of due
process because it is undtlly oppressive fOT failing to consider financial burden & condition of
structure (2) appeal of code enforcement order finding property in violation for lffisafe condition and
(3) appeal before hearing officer of HPC decision to deny application for demolition &
reconstruction. BOCC's decisioIl to deny rescinding historical designation was upheld by Judge
Garcia. Code enforcement appeal and demolition/reconstruction appeal are being held in abeyance
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pending final ruling on due process claim. Trial on due process claim to be held in late August.
($5,420.00 as of June 30, 2003).
New Matters
Quay Appeal (Parker v. Monroe Connty): Appeal of Planning Commission resolutions granting
conditional Use, receiver and sender site commercial square footage transfer. Plaintiff has requested
an extension to file Initial Brief. County has objected to extension.
NROGO Allocation appeals (Smart Planning 'i. Monroe County); Smart Planning Coalition
appeal of NROGO allocation based on allegation that allocations violate NROGO/Comp Plan
provisions because Key Largo ComrnuniKeys Master Plan not yet adopted. Briefs have been filed
and oral argument is set for July 25.
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