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Item E7 ~ Oct 20 04 07:57a Growth Mgt (305)289-2854 p. 1 GROWTH MANAGEMENT LITIGATION REPORT TO: Board of County Commissioners Richard Collins County Attorney FROM: T;molhy MI;Garry Director, Growth Management Division James Roberts County Administrator Derek Howard, Esq. Morgan & Hendrick October 18, 2004 DATE: Vacation Rentals NeumoDt (Federal Class Adion) - PlaintifiS filed a class action suit in U.S. District Court aIleging vacation rental ordinance (Ordinance 004-1997) was prematurely enforc:ed, is an unconstitutional tak.mg of PJaintlffi' properties, and was adopted in violation of due process. On June 20, 2004, the U.S. District Court entered final judgment in favor of the County. On July 15, 2004, PlaintiftSlAppeUants filed a notice ofappeal to the U.S. Court of Appeals for the 11th Circuit from final judgment of the District Court, and aU interlocutory orders giving rise to the judgment. 1l1e deadline for Appellants to file their initial brief has been extended until December 8, 2004. On September 15,2004, AppeUants filed a motion to certify state~law questions to the Florida Supreme Court and to postpone briefing pending certification; the County filed its response on October 7, 2004. On October 18, 2004, a mediation conference was held. ($95,406.07 as of September 30, 2004). T akiD2s 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 from approximately 1,800 to 2,500 square feet. However, PIaiDtitlS cannot build within this area due to Ocean Reef Club Association deed restrictions requiring setba.cks in excess of those required by Monroe County. PlaintiflS allege that Monroe County's actions lwve resulted in a denial of all economic use of their property, despite expressly allowing a 2,500 square foot buildable area Monroe CO\1IltYs motion to dismiss was dellied on December 12,2002. Mediation i:ii scheduled for October 21,2004. Case is set for bench trial on November 29 and 30, 2004. ($14,453.72 as of September 30,2004). GalleoD Bay - Three cases: (1) appeal of vested rights decision; (2) takings claim; and (3) third party complaint against State of Florida seeking contnbution, indemnity and subrogation. (I) On June 17, 2004, the 3rd D.C.A. denied the County's petition for writ of certiorari. (2) As to takings E1 . Oct 20 04 07:57a Growth Mgt (305)289-2854 p.2 claim, Judge Payne entered summary judgment in mvor 0 fPlaintiff on liability on November to, 2003, finding both a temporary and permanent taking of the subject property. Case was scheduled to proceed with a jury trial as to damages on August 9, 2004. At the pretrial conference on July 26, 2004, however, Judge Payne agreed to modify his order on liability to find only a permanent btking on April 21 , 1994, and granted Plaintiff's request to continu.e the trial until October 12,2004. Plaintiff's counsel was delegated the task of reducing the Court's announced ruling to a proposed modified order. On August 18,2004, Judge Payne entered final judgment in favor of the County as to plaintiff Hannelore Schleu. On September 24, 2004, the COWlty submitted a proposed modified order consistent with the Cowt's July 26, 2004, ruling. On October 3, 2004, Plaintiff submitted a proposed modified order that substiUltively contradicted and strayed trom the Court's ruling; namely, the proposed order found a tanporary taking occurred. On October 6, 2004. an emergency bearing was beld, at which time tbe Court agreed to enter pJaintifl's proposed modified order and continue the trial until February, 2005. The County will file a motion for rehearing arguing, inter alia, the verbatim entry ofPJaintiffs proposed modified order violated the procedurol due process rights of the County. (3) As to dUTd party complaint against State of Florida, the State moved to dismiss for failure to state a cause of action, as well as a motion to transfer action to tbe Second Judicial Circuit in and fur Leon County, Florida.. On May 24, 2004, the court denied the State's motion to dismiSs as to the County's claim of contribution, as weU as the State's motion to transfer. On May 24, 2004. the State moved to substitute the Department of Community AfiBirs and the Administration Commission as third party defendants. On July 27,2004, the State filed a notice ofappea1 to the 3rd D.C.A. of the non-final order denying the motion to transfer venue and petition for writ of prohibition/certiorari. On August 24,2004, the Court granted COlUlty'S motion to hold appeal in abeyan.ce. On August 25, 2004, the Court denied County's motion to hold petition in abeyance. The Court extended the deadline fur the County to file its response until October 12, 2004. On October 8, 2004. the County filed a motion for au additional extension of time in response to developments in the underlying action. ($123,333.50 as of September 30,2004; does not include prior Galleon Bay matters). Good - Plaintiff is seeltiDg declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to commercia' moratorium which began January 4, 1996. Plaintiff is also pursuing administrative re.quicements for filing a claim under the Bert Harris Act. County's motion to dismiss is being held ill abeyance until Plaintiff obtains a pre-application letter of undershmding as to the level of development that is petmisstble on each parcel ofproperty. PJaintiffand County stafImet On April 26,2004, to discU5S potential development. OnAugust 17, 2004, parries appeared before the court for a status conference. ($14.457.43 as of Sept em bel" 30,2004). PhelpslHardin - Plaintiffi; filed elairo in federal court for due process and inverse condemnation based on code enforcement proceedings that resulted in a lien on Plaintiffs' property. Federal court entered judgment in mvor of Monroe County due to reinstatement of state coun appeal of code enforcement order. On August 10,2004, the County filed a motion to dismiss the state court appeal for lack of prosecution. On September 21,2004, the Court di:imi;s5ed the appeal On October, 5, 2004, Plaintiff/Appellant filed a motion for rehearing of order granting motion to dismiss appeal ($6,457.43 as of September 30,2004). Kalan - Takings claim filed as to residential property in Cahill Pines & Palms subdivision fur firilure to obtain ROGO 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 Plni.ntiffseeks a beneficial use detennination, as required to exhaust available administrative remedies and ripen the case for judicial review_ On 2 Oct 20 04 07:57a Growth Mgt (305)289-2854 p.3 June 24, 2004, the Court entered an order requiring the County to render a beneficial use determination as to subject property within 90 days. On September 21, 2004, the Cowt granted the County's motion for an extension of time, extending the deadline for the County to render a beneficial use determination until January 20, 2005. ($1,524.73 as of September 30, 2004). Other Matters Department of Commuoity Affairs v. Monroe County - Case before Land and Water Adjudicatory Commission in which DCA alleges that the County fiilled to comply with various Comp Plan requirements by fulling to routinely amend endangered species maps, and vegetation surveys as to high & moderate quality hammock areas. DCA also alleges that the County has allowed higher ROGO scores than should have been allocated due to fiilluIe to amend maps, thereby allowing more residential development tban should have been approved. Case was set fur administrative hearing in January 2004. DCA entered voluntary dismissal pending adoption of moratorium & revised regulations, but moved forward with appeals as to individual permits (see below). ($10,138.70 as of September 30, 2004). . Departmellc of Community Atfain v. Monroe County - Pursuant to 380.07, Florida Statutes, DCA is appealing the building permit issued by Monroe County to Nancy Suarez- Cannon. DCA alleges that Monroe County did not correctly interpret and apply portions of its Comprehensive Plan and LDRs in scoring the application for development. On February 25, 2004, the ALJ dismissed Respondent Nancy Suarez-Cannon from the case because she sold the three subject lots to DC6, L.L.C- On May 4, 2004, DC6 (intervenor) sent settlement proposal to DCA in which jt proposes to relocate the subject building permit to a neighboring ~Ieared lot (the neighboring lot is the subject of a code enforcement proceeding in which the County alleges the lot was illegally cleared). On June 3, 2004, DOAH granted the parties' joint motion for continuance and placed case in abeyance, pending settlement. ($1,125.50 as ofSeptembeT 30,2004). Eads v. Monroe COUDty - Three cases: (1) appeal of code enforcement order finding property in violation for unsafe condition; (2) appew befOre hearing officer of I-Ipe on decision to deny application for demolition &: reconstruction; and (3) appeal ofBOCC decision to deny rescission of historic property designation and original declaratory action alleging rescission criteria is violation of due process beCause it is unduly oppressive for failure to consider financial btlrden & condition of structure. (I) Appeal of code enforcement order is being held in abeyance pending finalru1ing on due process claim. (2) On January 8, 2004, parties stipulated to dismiss appeal ofHPC decision, without prejudice. ALJ subsequently ordered the DOAH fiJe closed. (3) BOCC's decisjon to deny rescission of historical designation was upheld by the circuit court, wmch fuWld the application ofthe historic preservation ordinance did not result in a denial of due process. Plaintiff appealed circuit court's decision to 3m D.C-A. and ow arguments were heard on May 17, 2004. On JWle 9, 2004, 3rd D.C.^- ruled in favor of the County, affirming the circuit court's decision. On June 16, 2004, Plaintiffi' Appellant filed a motion for clarification, rehearing. rehearing en bane and written opinion. On August 11,2004, the 3rd D.C.A. denied this motion. ($37,888.44 as of September 30, 2004). O'DaDiel and Hills v. Monroe County -AppellantsIPetitioners filed a vested rights claim in Circurt CoUrt on March 13,2002. AppeUantsIPetitioners also appealed finding of Code Enforcement Special Master that they were conducting a commercial business on the subjec~ which is in 8 residential 3 Oct 20 04 07:58a Growth Mgt (305)289-2854 p.4 zoning district: without having first obtained a special use pennit. The court affirmed the Special Master's finding and order. The vested rights claim went to bench trial on May 25, 2004. On October 7, 2004> the Court entered its final judgment in favor of AppellantsfPetitioners, The Court held 'that AppelJants/Petitioners have vested rights to maintain a mixed residentia1lco~ial structure on the subject property, and to use the subject propeny for both residential and commercial office plllposes. The relief granted to Appellants/Petitioners is relatively narrow compared to the relief sought. The Court, for example. held that (1) any application for a change in commercial use is subject to current regulations regarding non-conforming structures and uses, and (2) the commercial portion of the structure must substantially comply with current standard building, electrical, mechanical and plumbing codes before a certificate of occupancy is issued. The Court did not vacate its prior order affinning the Code Enforcement Special Master order. The deadline for the CoUlltyto file a notice of appeal is November S, 2004. ($26,880.21 as of September 30, 2004). Industrial CommuDieatioDs & Electronics - Federal case alleging wireless tower moratoria were unconstitutional on various grounds and violated Federal Telecommunications Act. Case was dismissed by trial court based on claims being identical to those brought in state court action and failure to reserve federal claims therein. Case is pending on appeal in the 11 th Circuit. County 6Jed its answer brief on Marcb 1, 2004. Federal appeals court mediation process stayed the appeal pending action on I.C.E 's 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 September 30,2004). JOhDjOD - Writ of Mandamus challenging Director of Planning's determination that application for "boundary determination" by alleged error requires zoning map amendment applkation. Applicant applied for boundary determination based on allegation that BOCC previously adopted change in zoning. Dilector's detenninntion was based on review of records miIing to show any error or prior consideration of such zoning change. Director rejected application and infurmed owner to properly file for zoning map amendment. (Boundary determination may be placed on BOCC agenda without the public notice required for a zoning change). Pursuant to Ol"at argument, Monroe County agreed to re-process application for denial. or approval (application was previously returned as incomplete) and Plaintiffs may appeal as provided by the Monroe County Code if denied. ($1,807.87 as of September 30, 2004). Osbon, et. al. v. Moo roe County (Nortbstar) (DOA8 Case No. 03-4710) - Appeal to DOAR of Planning Conunission's approval ofNorthstar Resort's application for a major conditional use furtbe construction of a Key Largo resort hotel with 89 units, 8,158 square feet of commercial use and other amenities. On February 24,2004, ALJ granted Northstar's motion to intervene. COWlty filed its answer brief on February 26. 2004_ Appellants filed reply brief on May 7. 2004. Oral argument was heard on June 23, 2004_ ($4,660.39 as of September 30, 2004). Scotty's, et aL v. Monroe County - Appeal to DOAH of Planning Commission's denial of amendment to a major conditional use to demolish an existing structure and build a new Walgreens. Appellants filed notice. of appeal on October 10, 2003. On February 16,2004, ALl granted Florida Keys Citizens Coalition's motion to intervene. Appellants filed their initial brief on May 4, 2004. Florida Keys Citizen Coalition (intervenor) filed its anSwer brief on June 8, 2004. The County filed its answer brief on August 26, 2004. Parties W'e awaiting setting of oral argument by ALl ($5,819.63 as of September 30,2004). 4 Oct 20 04 07:58a Growth Mgt (305)289-2854 p.5 Smart Planning and Growth CoalitioD v. Monroe County (Circuit Court Case No. Ol-CA-507- P) -, SPGC challenge of NROGO allocations based on allegation that allocations violate NROGO/CQII1P Plan l'rovisioDS because Key Largo CommuoiKeys Master Plan not yet adopted. Case was dismissed by DOAH for lack of jurisdiction. Plaintiffs filed action in circuit court on same grounds. County pTevailed on its motion to dismiss fur lack of jurisdiction on grounds that plaintiffis not an. "aggrieved party, H as required by section 163.3215, Florida Statutes, PlaintifF.; filed an amended complaint on February 20,2004. COUl)ty filed its IU1SWer on March 5~ 2004. ($474.49 as of September 30, 2004). Smart Planning and Growth Coalition v. MC'toroe County; HiDote COnShlJdion v. Monroe County (DOAH Cllse No. 03-4722) - SPGC appealed to DOAH Planning Commission Resolution P29-03, which granted tbe application of John C. MooJe to transfer 5,790 square reet of commercial Ooor area under the NROGO ordinance. Hinote appealed Resolution P30-03, which denied Hinote's application to receive 3,300 square fuet oftransferable commercial floor area for the development 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 initial briefas to Resolution P30-03. On September 9, 2004, County filed its notice conceding error and waiver of answer brief. On September 29. 2004. ALJ entered order reversing Resolution P3Q..03 and granting Hinote's application for transfer of development rights to receive the transfer of comroercial floor area from Moore. ($4,649.29 as of September 30~ 2004). 5