Item J1
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Hugh J_ Morgan
James T. Hendrick
Robert Cintron, 11"-
Derek V. Howard
LAW OFFICES
MORGAN & HENDRICK
317 WI-OTEHEAD STREET
KEy WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSIMILE 305.296.4331
W. CUnyHanis
(1907.1988)
HilllIy U. Albury
(1920-1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY (192.3577)
COMMISSIONER GEORGE NEUGENT (872-919S)
COMMISSIONER DIXIE SPEHAR (292-3466)
MAYOR PRO TEM DA VW RICE (289-6306)
MAYOR MURRA Y NELSON (852-7162)
RICHARD COLLINS, ESQ. (292-3516)
JIM ROBERTS (292-4544)
BELLE DESANTIS, CLERK1S OFFICE (295-3663)
TIM McGARRY (289-2854)
FROM:
DEREK V. How ARB, ESQ.
DATE:
SEPTEMBER 14, 2004
SUBJECT:
GROWTH MANAGEMENT LITIGATION REpORT
Total number of pages including this cover sheet: 5
ORIGINAL DOCUMENT(S):
_x_ WILL NOT BE SENT
REGULAR
COMMENTS:
WILL BE SENT
OVERNIGHT
Our File # 161-01
The irJfi.mnation C1JDI8iued in Ibis ksimile IDIlSIlIge is a&1mJcy priYjJcpl and c:anfidadiaI, iDlcuded clIIly b 1JIe use of1be iDd~ (11' CIIti1r IJlI/IICd
ablwe. Jf1be reader of1bis IIICllS8F is DIll the iDlaIdcd recipiatt, you are hereby JIOIifiecIlb11t1ny dis!lCfI,:,..diu.",disrributioa orc:opy ofdlis~ft~
is stricdypmbibital. IfYOIIllaft I'el:eiwd tms comnwnicmau in emir, p1_ immedialely noti1Y us byteiephID andlUllm 1bo grip.! ~ 10 u.~at
lbclbo1cadifrt:ss VIA tile u. S. Ptl&td Service. If you do IIOf rco;:iYean pap, plcasccall beck os &oonllll pGlilIibIe 305-296-5676. TbeibUowiDgis()lJr1ax
1DImbc:r 305-196-4331.
P.O. Box 1117, KnWeST, FL 33041 $ TELEPHONE305296-5676 $ Fo\CSlMU 305296-4331
S. \
GROWTH MANAGEME~ LmGATION REPORT
FROM:
,
TO: Board of County Commissioners
Richard Collins
County Attorney
Timothy McGarry
Director, Growth Management Division
lames Roberts
County Administrator
Derek Howard, Esq.
Morgan & Hendrick
DATE:
September 14, 2004
VaeatioD Rentals
NeutODt (Feden.l Class Amon) - Plainti:t1S fiIed a class action suit in U.S. .District Court alleging
vacation rental ordinance (Ordinance 004-1997) was prematurely eofurced, is an unconstitutional
taking ofP1a.intiflS' properties, and was adopted in violation of due process. On June 20, 2004, the
U.S. District Court entered :final judgment in filVor of the County. On 1uly 15, 2004.
Pla.intiftSlAppellants filed a notice of appeal to the U.S. Court of Appeals for the 11th Circuit from
finaljudgment of the District Court, and all interlocutory orders giving rise to the judgment. Appeal
is scheduled for mMiation on October 18. 2004. The deadline for Appellaots to file their initial brief
has been extended until November 8, 2004. ($89,522.83 as of August 31,2004).
Takin~8 Claims
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 ftom ~ximately ] ,800 to 2,500 square teet.
However, PJaintiffir cannot build within this area due to Ocean Reef Club Association deed
restrictions requiring setbacks in excess of those required by Monroe County. PLlintiffil 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 December 12,2002. A pre1rial conference was held on August 8, 2004, at which time the
court continued the trial scheduled for September 20, 2004. ($11,859.33 as of August 31,2004).
GaIIeo. Bay - Three cases: (1) appeal ofvested rights decision; (2) takings claim; and (3) third
party complaint against State of Florida seeking contribution, indemnity and subrogation. (1) On
June 17,2004, the 3rd D.C.A denied the County's petition for writ of~rari. (2) As to takings
claim, Judge Payne entered SWIlIDaly judgment in mvor ofPlaintiffir OJllliability on Noveniber 10,
2003, finding both a temponuy and perma.11f1lt taking of the subject property. Case was scheduled to
proceed with a jury trial as to damages on August 9, 2004. AI the pretrial conference on July 26,
2004, however, Judge Payne agreed. to ID)dDf his order on JiabiJityto find onlya~u.ana4taking on
April 21, 1994, and granted Plairtti1fs' request fur a continuance. OnAugust 18, 2004, Judge Payne
entered fiDal judgment in &vor of the County as to PJainti1fHarmelore Scbleu. (3) As to third party
cOIllplaiot against State ofFJorida, the State moved to di!m1i$S fur:lBilure to state a cause of action, as
wen as amotion to trans&r action to the Second Judicial Circuit in and ror Leon County, F1oriIa. On
May 24,2004, the court denied. the State's motion to dismiss as to the County"s claim of contriJution.
as well as the State's motion to transfer. On May 24, 2004, the State moved to substitute the
Department of Community Afl3irs and the Administration Commission as third party defimdants. On
JuJy27, 2004, the State filed a notice ofappeal to the3rdD.C.A. ofthcnon-fiDalorderdenyiugtbe
motion to transfur venue and petition fur writ of prohibition/certiorari. On August 24, 2004, the
Court granted County's motion to hold appeal in abeyance. On August 25, 2004, the Court denied
CoUDty's motion to hold petition in abeyance, but extended the deadline for the County to file its
respoDSe until September 20,2004. ($119,232.53 as of August 31,2004; does not include prior
GaDeon Bay matters).
Good - Plaintiff is seeking declaratory relief and takings claim for ...,16 acre. Sugarloaf Shores
property due to co~"ial moratorium which began January 4, 1996. Plaintiffis also pursuing
administrative requirements for filing a claim under the Bert Harris Act. County"sJmtion to ctismiss is
being held in abeyance until Plaintiff obtains a pre-application letter of understanding as to the IcveI of
development that is permissible on each pacce1 of property. P1aioti1f and County staff met on April
26,2004, to discusspotentialdeveJopment. OnAugust 17, 2004, parties appeared before the court
for a status conference. ($14,361.42 as of August 31. 2004).
P.elpsIHardill - PlaintiffS filed claim in federal court fur due process and inverse condemnation
based on code enforcement proceedings that resulted in a lien on Pb,intiffiz' property. Federal court
entered judgment in mvor of Monroe County due to reinstatement of state court appeal of code
enfurcement order. Pla1ntifli; have taken no action on state court case since reinstatement. On
August 10,2004, the County:filed a motion to di~iss the state court case fur Jack of prosecution.
($6,412.43 as of August 31, 2004). 1
Kalan - Takings claim filed as to residential property in Cahill Pines & Pahns subdivision fur fililure
to obtain ROOO allocation in 4 year period. Based on County's motion to dismiss, the parties agreed
to entry of an order holding the case in abeyance while PIaimi1fseeks a bene:ficiaI 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 requiring the County to render a beneficial use
determination as to subject property within 90 days (provided the decision may be delayed due to the
Board of County Commissioner's schedule) ($1,353.36 as of August 31, 2004).
Other Matters
Department of Commu.ity A<<airs v. MOBroe County - Case before Land and Water
Adj1.ldicatory Commission in which DCA alleges that the County f8iIed to comply with various Comp
P.Ian requiren-ccnts by fiIiIing to routinely amend endangered species map$, aDd wgetation surveys as
to high & moderate quality hammock areas. DCA also alleges that the County bas allowed higher
ROOO scores than should haw been aDocated due to :fiWure to amen~ JnI:tPS, thereby allowing more
residential development than should have been approved. Case was set fOr administrative hcning in
January 2004. DCA entered voluntary dimni!l..';81 pending adoption of moratorium & revised
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regulations, but moved furward with appeals as to individual permits (see below). ($10.138.70 as of
August 31, 2004).
· Departmeat of COIPm1lllity Afrain v. Mowne CODnty - Pursuant to 380.07, Florida
Statutes. DCA is appealing the building permit issued by Monroe County to Nancy Suarez-
Cannon. OCA alleges that Momoe County did not correctly inteJ:pret and apply portions of
its Comprehensive Plan and LDRs in scoring the application fur development. On February
25, 2004, the AU dismi~ ReSpondent Nancy Suarez-Cannon from the case because she
sold the three subject lots to DC6, L.L.C. On May 4, 2004, DC6 (intCIVeJlOr) sent settkmeot
proposal to DCA in which it proposes to relocate the subject buiJdiog permit to a neiglmriog
cleared lot (the neighboring lot is the subject of a code enforcement proceeding in which the
County alleges the lot was iUegalJy cleared). On June 3, 2004. DOAR granted the parties'
joint motion fur continuance and placed case in abeyance, pending settlement. ($1,005.00 as
of August 31, 2004).
EadJ 'V. Monroe Coonty - Three cases: (1) appeal of code enfurcement order finding property in
violation for unsafe condition; (2) appeal before bearing officer of HPC on decision to deny
application for demolition & reconstruction; and (3) appeal ofBOCC decision to deny rescission of
historic property designation and original declaratolY action alleging rescission criteria is violation of
due process because it is unduly oppressive fur filiIure to consider ~ burden &. condition of
structure. (J) Appeal of code enforcement order is being heJd in abeyance pending finalniling on due
process claim.. (2) On J8IJWlIy 8, 2004, parties stipulated to dismiss appeal ofHpC decision, without
prejudice. AU subsequently ordered the DOAH file closed. (3) BOCC's decision to deny rescission
of historical designation was upheld by the circuit ~urt, which fuund the application of the historic
preservation ordioaJwe did not resuh in a dCIrial of due process. Plaiotitr appealed circuit court's
decision to 3rd D.C.A and oral arguments were heani on May 17, 2004. On.June 9, 2004, 3rd
D.C.A ro1ed in fitvor of the County, affirming the circuit court's decision. On June 16, 2004,
PJaintiW AppeOant filed a motion for cJari6cation, rehearing, rehearing en bane and written opinion.
On August 11,2004, the 3rd D.C.A denied this motion. ($37,888.44 as of August 31, 2004).
O'Duiel ad Bills v. Monroe County -AppeDantsIPetitioners filed a vested rights cJaimin Circuit
Court on March 13, 2002. AppellantslPetitioners also appealed find;ng of Code Eofurcement Special
Master that they were conducting a commercial business on the subject, which is in a residential
zoning district, without having first obtained a special use permit, The court affirmed the Special
Master's finding and order. The vested rights claim went to bench trial on May 25, 2004. The parties
filed their written final arguments and are awaiting the court's ruling. ($26,880.21 as of August 31,
2(04).
Industrial Communications It Electronics - Federal case alleging wireless tower IIlOratOria were
unconstitutional on various grounds and vioJated Federal TeJecomnnmications Act. Case was
ditml1ssed by trial court based on claims being VfP.fltical to those brought in state court action and
fiWore to reserve fede..aI claims therein. Case is pending on appeal in the 1 J th Circuit. County filed
its answer briefonMarch 1, 2004. Federal appeals court mediation process sta.~ the appeaIpeWiog
action on lC.E '5 proposed settlement, which was presented to and rejected by BOCC. Parties are
awaiting setting of oral argument by 11th Circuit:. ($18,661.61 as of August 31,2004).
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JolI...a - Writ of Mandamus cb:-lnenging Director ofPJamDng's determination tbat application fur
"boUDdary determination" by alleged error requires zoning map amendment application. Applicant
applied fur boundary detcrroioation based on aIlegarion that DOCe previously adopted change in
zoning. Director's det"'llhiaadion was based on review of records &iling to show any error or prior
consideration of suchzoniog change. Director rejected application and iDfu~ owner to properly
file fur zoning map amendment. (Boundary determimtion may be placed on HOCC agenda without
the public notice required fOr a zoning change). Pursuant to oral argumeot, Monroe County agreed
to re--process application fur denial or approval (application was previously returned as incoDllplete)
and PJaintiffii may appeal as provided by the Monroe County Code if daJied. ($1,807.81 as of August
31,2004).
Osborn, et. a1 v. MolU'Oe Coanty (Nortllstar) (OOAR Case No. 83-4728) - Appeal to DOAH of
Planning Commission's approval ofNorthstar Resort's application ror a III1\iOr conditional use:fOr the
constrnctionofaKcy Largo resort hotel with 89 UDits, 8,158 square fuet of commercial use and otlB'
amenities. On February 24, 2004, AU granted Northstar's motion to iDtem:ne. County meet its
answer brief on Febmary 26, 2004. Appellants filed reply brief on May 7, 2004. Oral argument was
heard on June 23, 2004. ($4,660.39 as of August 31, 2004).
Scotty's, et 81 v. Monroe County - Appeal to DOAH of Planning Commission's denial of
ammdment to a lIUijor conditional use to demolish an existing structure and build a new Walgreens.
Appellants filed notice of appeal on October 10, 2003. On February I ~ 2004, AU granted Florida,
Keys Citizens Coalition's motion to intervene. Appellants filed their initial brief on May 4, 2004.
Florida Keys Citizen Coalition (mtervenor) filed its answer brief on lune 8, 2004. The County filed
its answer briefonAugust 26,2004. ($5,729.63 as of August 31, 2004).
Smart Plannag and GrowtIl Coalition 'V. Monroe County (Circuit Court Case No. 03-CA-507-
P) I"" SPGC challenge of NROGO allocations based on allegation that allocations violate
NROGO/Comp Plan prowoons because Key Largo CoIllllDlDiKeys Master Plan not yet adopted.
Cas:e was dismissed by DOAH fur Jack of jurisdiction. Plain1iftS filed action in circuit court on same
grounds. County prevailed OD its motion to dismiss for lack of jurisdiction on grounds that plaintiffis
not an "aggrieved party, II as required by section 163.3215, Florida Statutes. P]8~fN filed an
~ed complaint on February 20, 2004. County filed its answer on March 5, 2004. ($474.49 as of
August 31,2004).
s....rt PIa.lling and GI"OWtk CoaUtion v. Monroe COIlDty; HiDote Conltnlmon v. Monroe
County (>>OAR Cue No. 03-4722) - SPOC appeaIed to DOAH Planning CoIDIIDssionResolution
P2~3, which granted the application of 101m C. Moore to transfer 5,190 square feet of commercial
floor area uode:r the NROGO ordinance. Hinote appealed Resolution P3o-03, which denied Hinote's
application to receive 3,300 square feet of transferable commercial floor area fur too d~lopment of
a WaJgreens store. Appeals were consolidated in DOAH Case No. 03-4722, with SPGC intervening
in the Hinote appeal On June 2, 2004,.AU entered order affirming Resolution P29-03. On July 19,
2004, Hinote filed its ioitiaI brief as to Resolution P30-03. On July 27, 2004, AU entered an order
for Hinote to show cause why its appeal should not be dismissed for lack of subject matter
jurisdiction. On August 31, 2004, Hinote and County filed a joint .memorandum of law pursuant to
order to show cause. On September 9, 2004, County filed its notice conceding error and waive.- of
answer brief: SPGC has not filed an answer brief to date. ($3,905.18 as of August 31, 2004).
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