Item N2LAW OFFICES
Hugh J_ Morgan
MORGAN & HENDRIC K
W.
James T. Hendrick
Karen K. Cabanas
317 WHITEH AD STREET
Curry Harris
(1907-1988)
Robert Cintron, Jr.
Thy WEST, FLORIDA 33040
Hilary U. Albury
TELEPHONE 305.296-5676
(1920-1999)
FACSWILE 305.296.4331
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY
COMMISSIONER GrORGE NEUGENT
MAYOR DIXIE 8 Pri uAR
COMMISSIONER DAVID RICE.
MAYOR PRO TEM MURRAX NELSON
RICXIARD COLLINS, ESQ.
Jim ROBERTS
BELLE DESANTIS, CLERK'S OFFICE
TIM MCGARRY
FAX #: 292-357�/
872-919 /
292-346�
289-630�
852-716i
292-3516f
292-4544�
295-3663
289-2536
FROM: KAREN CABANAS, ESQ.
DATE: OCTOBER 10, 2003
SUBJECT: GROWTH MANAGEMENT LITIGATION RESORT
TRANSMITTER:
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296-5676. The followhng is our fax number 305-296-4331.
P.O. BOX 111T KEY WEST, FL 33041 s TELEPHONE 305 296-5676 $ FACSIMILE 305 296-4331
/v- a
GROWTH MANAGEMENT LIITIGATION REPORT
TO: BOCC; Richard Collins; Tim McGarry; Jim Roberts
FROM: Karen Cabanas
DATE: October 10, 2003
(This report will now set forth any new developments in underline font).
Vacation Rentals
N'eumont (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 either dismissed or entered judgment in favor of Monroe
County on all counts. Awaiting entry of final order and resolution of motions for fee -shifting
sanctions relating to discovery_ Plaintiffs have stated that they intend to appeal to the 11th Circuit.
(S77,248.75 as of September 30, 2003).
Takings Claims
Galleons Bay — Two cases: Appeal ofvested rights decision and taking claim. Awaiting ruling from
3rd DCA on vested rights appeal. County's motion to dismiss taking claim was denied and case will
proceed with discovery. (S 19,655.25 as of September 30, 2003) (does not include prior Galleon Bay
matters).
Phelps/Hardin — Claim brought in federal court for due process and inverse condemnation based oil
code enforcement proceedings that resulted in a lien on Plaintiffs' property. Federal court has
entered judgment in favor of Monroe County due to reinstatement of state court appeal of code
enforcement order. ($6,059.00 as of September 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 until plaintiff obtains a pre -application letter of understanding as to the level of
development that is permissible on each parcel of property. ($8,992.50 as of September 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 cannot 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. Patties are proceeding with discovery_ ($2,957.50 as of September 30, 2003).
Kalan - Takings claim filed as to residential property in Cahill pines & Palms subdivision far failure
to obtain ROGO allocation in 4 year period. County has filed motion to dismiss for failure to seek
administrative relief/beneficial use determination, as provided in LDRs. (S22.50 as of September 30,
2003).
Other Matters
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
Ievel of service and concurrency mandate. Judgment was entered in favor of Monroe 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 pen -nits
by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
appealed to 3rd District Court of Appeals, which affirmed the trial eourt's piling in favor of County.
Plaintiffs have filed with the Florida Supreme Court requesting it to accept jurisdiction over case
based on alleged conflict between 3d DCA's judgment and other DCA & U.S. Supreme Court
opinions on the issue of ripeness and futility. Jurisdictional briefs have been filed, awaiting ruling as
to whether Fla.S.Ct_ will hear case. ($21,846.50 as of September 30, 2003).
.Ambrose - Declaratory action claiming vested rights under §380.05(18) based on filing of
subdivision plats_ Pursuant to summaryj udgment proceedings and his previous orders, Judge Payne
ordered that Plaintiffs prove ownership of a single Plaintiffs' lot so that legal issues maybe 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. Court entered final summary
judgment for approximately 75 plaintiffs. Final Order has been entered by Court and all Defendants
have filed notices of appeal. Oral araament was held February 5, 2003. Awaiting ruling.
($56,018.75 as of September 30, 2003).
Upper Keys Citizens Association —Appeal to Div. of Admire. Hearings of Planning Commission's
approval of North Key Largo sub -station for Fla. Keys Electric Co -Op, Bearing officefs order
upholding planning Commission resolution was upheld, but Plaintiffs have filed further appeal to
circuit court. County's response has been filed and case has been set for oral argument. ($12,375.00
as of September 30, 2003).
Lawson- Appeal of Monroe County Planning Commission resolution_ County's AnswerBriefwas
fled August 25; awaiting court to schedule oral argument. (Sl 12.50 as of September 30, 2003).
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 allegation that BOCC previously adopting 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 infom-ied Owner to properly
file for zoning map amendment. (Boundary determination maybe placed on BOCC agenda without
the public notice required for a zoning change). Hearing on mandamus has been re -set. ($965.00 as
of September 30, 2003).
2
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission alleging that County 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. DCA has recently given notice that case will proceed
to administrative hearing. ($2,622.50 as of September 30, 2003).
Eads Y. 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 unduly oppressive for failing to consider financial burden & condition of
structure (2) appeal of code enforcement order finding property in violation for unsafe condition and
(3) appeal before hearing officer of BPC decision to deny application for demolition &
reconstruction. BOCC's decision to deny rescinding historical designation was upheld by Judge
Garcia. Code enforcement appeal and demolition/reconstruction appeal are being held in abeyance
pending final ruling on due process claim. Trial on due process claim was held August 22.Once all
post -trial briefs are submitted, the court will issue its opinion. ($20,912.50 as of September 30,
2003).
Quay Appeal (parker v. Monroe County): Appeal ofPlaraling Commission resolutions granting
conditional use, receiver and sender site commercial square footage transfer. Awaiting filing of
Petitioner's reply brief; oral argument has been set for November 17.
NROGO Allocation. appeals (Smart Planning v. Monroe County): Smart Planning Coalition
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
DOA14 for lack of jurisdiction. New complaint has been filed in circuit court on same grounds.
County has filed motion to dismiss for lack of Jurisdiction on erounds that plaintiff is not an
"aggrieved )arty " as required by statute Party's interest must be greater than that of !generalcommunity_