Item R1 R1
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5
Michelle Lincoln,District 2
James K.Scholl,District 3
m' David Rice,District 4
Board of County Commissioners Meeting
November 8, 2023
Agenda Item Number: R1
2023-1070
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Cynthia Hall (305) 292-3470
N/A
AGENDA ITEM WORDING: CAY Report for November 2023.
ITEM BACKGROUND:
Monthly report is attached.
PREVIOUS RELEVANT BOCC ACTION:
N/A
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: N/A - Report.
DOCUMENTATION:
County Attorney°s Report November 2023.pdf
FINANCIAL IMPACT:
N/A
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CoLirity �� Monroe � W BOARD OF COUNTY COMMISSIONERS
�� ���� Mayor Craig Cates,District 1
r� 'r Mayor Pro Tern Holly Merrill Raschein,District 5
The Flo]1da Keys �� � Michelle Lincoln,District 2
James K.Scholl,District 3
David Rice,District 4
Robert B.Shillinger,County Attorney— Office of the County Attorney
Pedro J.Mercado,Senior Assistant County Attorney** 1111 12'Street,Suite 408
Cynthia L.Hall,Senior Assistant County Attorney** Key West,FL 33040
Christine Lhmbert-Barrows,Assistant County Attorney** Phone(305)292-3470
Derek V.Howard,Senior Assistant County Attorney** Fax (305)292-3516
Peter H.Morris,Assistant County Attorney**
Patricia Fables,Assistant County Attorney
Joseph X.DiNovo,Assistant County Attorney*
Kelly M.Dugan,Assistant County Attorney
Christina Cory,Assistant County Attorney
Nathalia Archer,Assistant County Attorney
**Board Certified in City,County&Local Government Law
To: Mayor & Commissioners
From: Bob Shillinger, County Attorney
Date: October 23, 2023
Re: November 2023 County Attorney Report
Closed Session at the November 8 Meeting
1. Monroe County v. DGW Corp., 23-CA-249-M. Suit for foreclosure, injunctive relief,
money judgment, and/or writ of execution to enforce the lien stemming from Code
Compliance Case CE20010126.
2. Pirates Cove Property Owners and Boating Ass'n et al. v. Monroe County Planning
Comm'n, Daniel Barry Jr. and Archer Barry, 23-CA-365-P. Petition for writ of
certiorari, seeking to quash a variance issued by the Planning Commission to the
Barrys. Petitioners allege that construction and operation of the Barrys' business
(alleged to be a high-intensity, 24-hour gas station/retail store with 11 fueling
stations) will cause increased traffic, noise and lights, and petrochemical fumes.
Cases of Interest at Trial Court Level
3. Galleon Bay Corp. v. Monroe County and State of Florida, 02-CA-595-K. Settlement
was approved at the October meeting. The agreement will be presented to the Court
for approval after signature by the State. Motions for attorneys' fees and costs are
still pending but are expected to be denied as moot upon approval of the settlement
agreement.
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4. Peter & Olivia Poto v. Monroe County/Monroe County v. Jane Gilbert Trust, 22-CA-
709-K, quiet title and specific performance action by buyers of a property where
seller had sold development rights to one lot and entered into a unity of title as part
of the County's Less than Fee program. The County answered and filed a
counterclaim against the Potos and a cross-claim against the seller, Jane Gilbert.
Gilbert's motion to dismiss is set for hearing on 11/1/23. Depositions are
scheduled for November/December. Plaintiffs' motions to strike the County's
demand for a jury trial and affirmative defenses are set for hearing 12/19/23.
5. Largo 89, LLC & AJC Berna Properties, LLC v. Florida Dep't of Environmental
Protection & Monroe County, 23-CA-216-P. Owners of two lots adjacent to the
terminus of Kay Drive in Key Largo sued for declaratory relief and nuisance; Plaintiffs
seek to compel FDEP to issue a Certificate of Recordable Deed. Plaintiffs' road
abandonment petition was denied on 3/16/22 because it would have violated Section
19-1 of the Code by cutting off water access to the public. The County and the State
have both filed answers.
6. Roy's Trailer Park v. Noel & Monroe County, 19-CA-175-K. Declaratory Judgment
suit filed by Roy's against County as part of its eviction suit against its tenant. County
counterclaim against the trailer park and the park residents, seeking an injunction
prohibiting occupancy at the park until serious fire and life safety issues have been
addressed, appointment of a receiver, and declaratory relief to determine whether
the owner or tenants are responsible for the code violations. The park owner
submitted an application to the Planning Department to redevelop the park for
affordable housing. The Planning Commission hearing was held on 12/14/2022.
Next step: public hearing on the owner's application to be presented to the BOCC.
7. Monroe County v. Sugarloaf VFD, Inc. & Sugarloaf Wi-Fi, Inc., 17-CA-631-K. The
County sued both SVFD and Wi-Fi to invalidate a lease between SVFD and Wi-Fi
on the grounds that SVFD had not approved the lease in an open meeting. The
County prevailed and the lease was invalidated. Wi-Fi has a separate suit pending
against the SVFD that is holding up the transfer of the property to the County.At Wi-
Fi's request, Fortress Secured, LLC submitted a public private partnership (P3)
proposal that would serve as the basis for settlement. On 1/18/23, the BOCC
approved an interim agreement with Fortress Secured, LLC to design, build and
finance a replacement fire station on Sugarloaf Key at the current location of the
Sugarloaf Volunteer Fire Department Station #10. A final agreement would resolve
all related claims and result in a transfer of the property to the County.
8. Burkhardt v. Monroe County, 22-CA-293-K. Plaintiff filed a Complaint in state court
seeking to declare whether Plaintiff has a right to engage in commercial fishing uses
on his Big Pine Key property. The complaint also sought to invalidate the Habitat
Conservation Plan and Incidental Take Permit issued by USFWS. On 1/17/23, the
County filed its answer to the amended complaint.
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9. Jay Archbell PA v. Buirley, Monroe County, et al., 23-CA-108-K. The County
previously settled its claim against Jay Archbell, PA (the property owner) for a
reduced amount of code liens. The property appears to have some owners outside
the chain of title. Archbell then filed suit against prior owners Kenneth and Anita
Lynn Buirley, the County, and others, to quiet title. The County filed its Answer on
5/30/23. Plaintiff's motion for summary judgment is scheduled to be heard on
11/15/23.
10.Maschal et al. v. Monroe County and FKAA, 19-CA-186-K. Suit against Monroe
County and FKAA by 12 individuals seeking similar relief to the Delaney lawsuit,
which the County won. After several attempts to state a claim, the Circuit court
dismissed the case on 4/4/22 when it denied the Plaintiff's motion for reconsideration
and granted the County and FKAA's motion for reconsideration, thus denying the
Plaintiff's motion to file a supplementary complaint. On 5/3/22, the Plaintiffs
appealed to the Third DCA(3d DCA 22-754). On 5/24/23, the Third DCA remanded
the case to the Circuit Court with instructions to allow Plaintiffs to file one single
amended complaint. Plaintiffs filed their Amended Complaint on 8/17/23. The
County and FKAA filed answers on 9/1/23, and also filed a joint Counterclaim for
injunctive relief, compelling the property owner plaintiffs to connect to the wastewater
system. Plaintiffs answered the Counterclaim on 9/20/23.
Appellate Cases of Interest
11.Shands v. City of Marathon, 3d DCA21-1987. This is a long running takings case
involving an off shore island located within the City of Marathon. On 5/3/23, the
Third DCA reversed a trial court decision in favor of the City and, in doing so, created
a new hybrid species of inverse condemnation claim that, if left unchecked, could
have dire consequences for the growth management policies governing the Florida
Keys Areas of Critical State Concern. On 6/2/23, the County and the Village of
Islamorada filed an amicus brief in support of Marathon's Motion for Rehearing,
Rehearing en banc, and for Certification to the Florida Supreme Court. The City's
motion for rehearing remains pending.
12.Ray Rey & Ram ille Rey v. Monroe County, 22-AP-2-P. On 3/1/22, the owners filed
a notice of appeal of the Final Order of the Special Magistrate that found them in
violation due to improvements to a nonconforming lower enclosure. Briefing is
complete. Awaiting a ruling or the scheduling of oral argument.
13.Sunset Garden Estate Land Trust v. Monroe County, 19-CA-460-P, 3D23-1368.
Property owner sued claiming that various state laws including the Right to Farm
Act, preempt the County's land development regulations. The County filed a
counterclaim for declaratory and injunctive relief. On 7/11/23, the Court granted
Plaintiffs' motion for summary judgment, denied the County's motion for summary
judgment, and entered judgment for the Plaintiffs. The County appealed to the Third
DCA. The County has until 11/6/23 to file its initial brief.
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Administrative Law Cases
14.6-7-8 US 1, LLC v. Monroe County Planning Department. On 5/7/21, the property
owner filed an appeal to the Planning Commission of the Department's 4/7/21 letter
of understanding regarding the attempted use of storage/shipping containers at its
Key Largo property. The Department determined that the storage/shipping
containers used for commercial storage at the property were not subject to the
property owner's conditional use approval or building permit for the parcel; are
structures that require a permit and compliance with the Comprehensive Plan, LDC,
Chapter 6 of the County Code, the Florida Building Code, local and FEMA flood
regulations; and constitute non-residential floor area as defined in the LDC and are
subject to NROGO. The owner's appeal of the Department's analysis and
conclusions was heard at the Planning Commission's November meeting. The
Planning Commission affirmed on a vote of 3-2. Time for an appeal will start once
PC Chair signs resolution memorializing the vote.
Vacation Rental Cases
15.Coral Hammock Rental, et al. v. Monroe County, 20-AP-11-K; 3D23-0145. 26
property owners appealed from final orders finding properties in violation of vacation
rental ordinances and assessing fines of $224,329, plus costs. Sr. Judge James
M. Barton II issued an opinion holding the owners are not prohibited from using their
attached units in the MU district for vacation rentals, reversing the Final Orders, and
instructing that the owners be allowed to apply for a vacation rental permit or
exemption. On 1/25/23, the County filed a petition for certiorari review in the Third
District. On 9/20/23, the Third DCA issued its opinion denying the County's petition
for review of the circuit court's decision.
16.Lachlan, LLC, et. al. v. Monroe County, et. al., 23-CA-104-K. On 2/17/23, the Coral
Hammock owners involved in 20-AP-11-K filed a mandamus complaint seeking to
compel the Planning Department to process their applications for exemptions to the
annual vacation rental permit requirement (the Department informed the owners that
the applications would be held in abeyance pending certiorari review in the Third
District). On 4/20/23, the County filed its answer to the complaint.
Class Action Lawsuits where Monroe County is a Party
17.Monroe County v. 3M, et al., 22-CA-618-K/2:22-cv-03680-RMG, consolidated into
2:18-mn-02873-RMG: On 9/9/2022, Monroe County filed suit against manufacturers
of aqueous film-forming foam (AFFF) containing per-and polyfluoroalkyl substances
(PFAS) to recover damages for investigation, remediation, removal, disposal,
treatment and monitoring of water and soil created by defendants' products. PFAS
had been detected at the Monroe County Fire Training Academy on Grassy Key. On
10/7/22, defendants removed the case to the U.S. District Court for the Southern
District of Florida. On 10/26/22, the County's case was transferred and consolidated
with other similar cases in the Multi District Litigation (MDL) case pending in the
District of South Carolina before Hon. Richard M. Gergel.
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Constitutional Officer Cases
18.The Supervisor of Elections, Joyce Griffin, is currently involved in several litigation
matters in which she has been previously served and/or has received notice of other
cases which have been filed but not yet been served on her. The cases challenge
various Florida Statutes regarding election legislation and voter registration. Griffin
and other SOEs retained outside counsel, but the County Attorney's office is
assisting in the defense of each case. Current pending matters are as follows with
the cases being at various stages of litigation:
A) League of Women Voters of FL v. Sec'y of State Lee, Joyce Griffin, et al,
4:21-cv-00186, USDC/NDFL, 11t" Cir. Ct. App. Case No. 22-11143.
B) Above case consolidated with NAACP of FL v. Sec'y of State Lee, Joyce
Griffin, et al, 4:21-cv-00187, USDC/NDFL, 11t" Cir. Ct. App. Case No. 22-
1114; Florida Rising Together, v. Sec'y of State Lee, Joyce Griffin, et al,
4:21-cv-201, USDC/NDFL, 11t" Cir. Ct. App. Case No. 22-11143; and
Harriet Tubman Freedom Fighters, et al v. Laurel M. Lee, et al, No. 4:21-cv-
00-242-MW-MAF, 11t" Cir. Ct. App. 22-11133.
C) Vote.org v. Byrd, Joyce Griffin, et al, No. 4:23-cv-00111 (N.D. Fla.).
D) NAACP v. Byrd, Joyce Griffin, et al, No. 23-cv-215 (N. D. Fla.).
E) Florida Rights Restoration Coalition v. DeSantis, Joyce Griffin, et al., No.
1:23-cv-22688 (S.D. Fla.).
Tort and Employment Law Cases
19.The County Attorney's Office is defending the following other personal injury,
property damage and employment law cases not referenced above:
Katzenstein v. Monroe County, 20-CA-177-P Personal injury
Foreclosure Actions
20.The County Attorney's Office is currently prosecuting a total of 34 cases to foreclose
or otherwise enforce on County code compliance liens. The Office is also currently
defending 7 mortgage foreclosure cases, where the County holds an interest in the
property, usually as a result of an inferior code compliance lien.
Other Matters of Interest
21.Code Collections.As the month has not yet finished, code collections for the month
of October will be presented in next month's report
22.Vacation Rental Prosecutions. Vacation rental prosecutions for the month of
October will be presented in next month's report.
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Risk Management
23.Risk Management activity and policy renewals for the month of October will be
presented in next month's report.
Public Records
24.Public records activity for the month of October will be presented in next month's
report.
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