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Item O01 01 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE �� i Mayor Holly Merrill Raschein,District 5 The Florida Keys Mayor Pro Tern James K.Scholl,District 3 Craig Cates,District 1 Michelle Lincoln,District 2 ' David Rice,District 4 Board of County Commissioners Meeting December 13, 2023 Agenda Item Number: 01 2023-1071 BULK ITEM: No DEPARTMENT: County Attorney TIME APPROXIMATE: STAFF CONTACT: Cynthia Hall (305) 292-3470 N/A AGENDA ITEM WORDING: CAY Report for December 2023. ITEM BACKGROUND: Monthly report is attached. PREVIOUS RELEVANT BOCC ACTION: N/A INSURANCE REQUIRED: No CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: N/A - Report. DOCUMENTATION: CAY report December 2023.pdf FINANCIAL IMPACT: N/A 2929 y� BOARD OF COUNTY COMMISSIONERS County of Monroe �N^ �y �y�Jr ��� Mayor Holly Merrill Raschein District 5 k Mayor Pro Tern Holly Michelle Lincoln,District 2 ti, The Flofida.Keys Craig Cates,District I James K.Scholl,District 3 I David Rice,District 4 Robert B.Shillinger,County Attorney" Office of the County Attorney Pedro J.Mercado,Senior Assistant County Attorney** 1 1 11 12"'Street,Suite 408 Cynthia L.Hall,Senior Assistant County Attorney** Key West,FL 33040 Christine Limbert-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: November 28, 2023 Re: December 2023 County Attorney Report Closed Sessions at the December Meeting (None) Cases of Interest at Trial Court Level 1. 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. 2. 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. Depositions are scheduled for 12/15/23. Plaintiffs' motions to strike the County's demand for a jury trial and affirmative defenses are set for hearing 12/19/23. 3. 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. 2930 4. 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. 5. 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. 6. 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. 7. 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 12/20/23. 8. 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. 2 2931 Appellate Cases of Interest 9. Shands v. City of Marathon, 3d DCA21-1987. This is a long running takings case involving an offshore 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. 10.Ray Rey & Ramille 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. 11.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 12/6/23 to file its initial brief. Administrative Law Cases 12.6-7-8 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. 3 2932 Vacation Rental Cases 13.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. 14.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 15.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. Constitutional Officer Cases 16.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-001 86; 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, 11 t" Cir. Ct. App. Case No. 22-11143; and 4 2933 Harriet Tubman Freedom Fighters, et al v. Laurel M. Lee, et al, No. 4:21-cv- 00-242-MW-MAF, 11 t" Cir. Ct. App. 22-11133. C) Vote.org v. Byrd, Joyce Griffin, et al, No. 4:23-cv-00111 (N.D. Fla.); USDC/NDFL, 11t" Cir. Ct. Appt. Case No. 23-13727. 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 17.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 18.The CountyAttorney's Office is currently prosecuting a total of 35 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 19.Code Collections. As the month has not yet finished, code collections for the months of October and November will be presented in January's report. 20.Vacation Rental Prosecutions. Vacation rental prosecutions for the months of October and November will be presented in January's report. 21.Professional Development. Senior Assistant County Attorney Derek Howard participated in a panel discussion on the future of Transferrable Development Rights at the Florida Association of County Attorneys Mid Year Conference on 11/16/23. Risk Management 22.Risk Management activity and policy renewals for the months of October and November will be presented in the January report. Public Records 23.Public records activity for the months of October and November will be presented in the January report. s 2934