Item I1
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GROWTH MAr~AGEMENT LITIGATION REPORT
TO: Board of County COlnnllssioners
Richard Collins
County Attorney
Timothy McGarry
Director, Growth Management Dlvision
FROM:
Thomas J, Willi
County Administrator
Derek Howard, Esq.
Morgan & Hendrick
March 1, 2005
DATE:
Vacation Rentals
Neumont (Federal Ciass Action) - Plaintiffs filed a class action suit in U.s. District Court alleging
vacation rental ordinance (Ordinance 004-1997) was prematurely enforced, is an unconstitutional
taking of Plaintiffs' 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,
PlaintHfs! Appellants filed a notice of appeal to the U.s, Court of Appeals for the 11th Circuit from
final judgment of the District Court, and all interlocutory orders giving rise to the judgment. On
September 15,2004, Appellants 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;
Appellants filed a reply on October 15, 2004, On October 18, 2004, a mediation conference was
held. On October 19,2004, the Court denied Appellants' motion to stay briefIng and ruled motion to
certify state-law questions to the Florida Supreme Court is carried 'With the case. Appellants filed
their initial brief on December 15, 2004. Monroe County filed its response brief on February 22,
2005, ($103,056,00 as of January 31, 2005)
Takint!:s Cla~
Emmert _ Complaint seeking inverse condemnation based on partial granting of beneficial use
application. Plaintiffs were granted pa...'1.ial 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 may not be able to build within this area due to Ocean Reef Club Association
deed restrictions requiring setbacks in excess of those required by Monroe County. Plaintiffs allege
thai 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 Courtty's motion to dismiss was
denied on December 12, 2002 Mediation was held on October 21,2004. Case was set for bench
trial on November 29 and 30, 2004. On November 22, 2004, Plaintiffs filed an emergency motion
for continuance; motion was heard and granted on November 24,2004. Parties are awaiting an order
rc~setiing case for trial. On November 22, 2004, Plaintiffs also filed a motion for leave to file :it
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second a.'11ended complaint in order to add a claim of vested rights. The motion was heard on
January 5,2005, and the parties are awaiting the Court's decision. ($63,929.95 as of January 31,
200S)
Galleon Bay _ Three cases: (1) appeal of vested 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 V\tTit of certiorari.
(2) As to takings claim, Judge Payne entered summary judgment in favor of Plaintiff on liability on
November 10,2003, finding both a temporary and permanent taking oftbe 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 iiability to fmd
only a permanent taking on April 21, 1994, and granted Plaintiffs request to continue the uial until
October 12, 2004, Plaintiffs counsel was delegated the task of reducing the C01..lrtJS 8Ih'10UIICed
ruling to a proposed modified order. On August 18, 2004, Judge Payne entered final judgment in
favor of the County as to Plaintiff H:cLrmelore Schleu, On September 24, 2004, the County submitted
a proposed modified order consistent 'lNith the Court's July 26, 2004} ruling. On October 3, 2004,
Plaintiff submitted a proposed modified order that substantively contradicted and strayed from the
Court' 5 ruling; namely, the proposed order found a temporary taking occurred. On October 4, 2004,
the Court entered verbatim Plaintiffs proposed modified order. The trial was subsequently
continued until February 7, 2005, On October 22,2004, the County filed a motion for rehearing
arguing, inter alia, the verbatim entry of Plaintiffs proposed modified order violated the procedural
due process rights of the County, On November 2, 2004, Plaintiff filed a reply to the County's
motion for rehearing. On November 29,2004, the County filed an amended motion for rehearing
and/or motion for reconsideration. On December 13,2004, the Court granted the County's motion
and vacated the modified order of October 4, 2004. On December 27,2004, lhe Court continued the
trial and ordered the parties (including Third-Party Defendant State of Florida) to participate in
nonbinding arbitration, which is scheduled to begin on March 29, 2005,
(3)'As to wrd 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 the Second Judicial Circuit in and for Leon
County, Florida, On May 24, 2004, the court denied the State's motion to dismiss as to the County's
cl;lim of contribution, as well as the State's motion to transfer. On May 24, 2004, the State moved to
substjtute the Department of Community Affairs and the Administration Commission as third party
defendants. On July 27, 2{)04~ the State filed a notice of appeal to the 3rd D.CA. of me non-final.
order denying the motion to transfer venue and petition for writ of prohibition/certiorari. On August
24.,2004, the Court granted County's motion to hold appeal in abeyance, On August 25, 2004, the
Coact den1ed County's motion to hold petition in abeyance. The Court has deferred the deadline for
the County to file its response, pending resolution of matters in tl1e underlying action, ($146,255.89
as of Janua.ry 31,2005; does not include prior Galleon Bay matters).
Good _ ptaintiff is seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores
property due to commercial moratorium. which began January 4, 1996, Plaintiff is also pursuing
adrPjnistrative requirements for filing a claim under the Bert Harris Act, County's motion to dismiss
is. being held in abeyance until Plaintiff obtains a pre-application letter of understanding as to the
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leveI of development that is permissible on each parcel of property. Plaintiff and County staff met
on Apri126, 2004, to discuss potential development. On February 14,2005, parties appeared before
the court for a status conference. ($14,79642 as of January 31,2005).
Phclps/Hardin _ Plaintiffs filed claim in federal court for due process and inverse condemnation
based on code enforcement proceedings that resulted in a hen on Plaintiffs' property. Federal court
entered judgment in favor of Monroe County due to reinstatement of state court 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 27,2004, the Court dismissed the appeal. On October 5,
2004, Plaintiff! Appellant filed a motion for rehearing of order granting motion to dismiss appeaL On
November 5,2004, the Court entered an order granting Appellant's motion for rehearing and setting
aside and vacating dismissal. ($6,577.93 as of January 31,2005). '
Kalan _ Takings claim filed as to residential property in Cahill Pines & Palms subdivision for failure
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 Plaintiff seeks a beneficial: 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
determil1ation as to subject property within 90 days, On September 21,2004, the Court granted the
County's motion for an extension of time, extending the deadline for the County to render a
beneficia! use determination until January 20, 2005. On October 26,2004, a beneficial use hearing
was held and the parties are still awaiting renderi..'1g of the Special Master's proposed order. The
County has therefore filed another motion to extend the deadline for tbe County render a beneficial
use determination, which remains pending. ($2,750.77 as of January 31, 2005).
Other Mattns
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission in which DCA alleges that the County failed to comply with various
Ccmp Plan requirements by failing 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 failure to amend maps. thereby
allowing more residential development than should have been approved. Case was set for
administrative hearing in Jam.l.ary 2004. DCA entered vohmtary dismissal pending adoption of
moratorium & revised regulations, but moved forward with appeals as to individual permits (see
below). ($14,796.42 as of January 31, 2005),
. Department of Community Affairs v. Monroe County - Pursuant to 380.07, Florida
Statutes, DCA is appealing tbe building permit issued by Monroe County to Nalley Suarez-
Cannon. DCA alleges that Monroe County did not correctly interpret and apply portions of
its Comprehensive Plan and LDRs in scoring the application fordevclopment. On February
25,2004, the AU dismissed Respondent Nancy Suarez~Cannon from the case because she
soJd the three subject lots to DC6, LLC On May 4,2004, DC6 (intervenor) sent settlement
proposal to DCA in which it proposes to relocate the subject building permit to a neighboring
cleared lot (the neigh boring lot is the subject of a code enforcement proceeding in which the
County alleges the lot was illegally cleared). On November 4, 2004, DOAR granted the
parties' joint motion for continuance and placed case in abeyance to an ow fer settlement
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negotiations. ($1,297.00 as ofJanuary 31, 2005).
O'Daniel :mnd Hills v. Monroe County ~Appenants/Petitioners filed a vested rights claim in Circuit
Court on March 13, 2002. Appellants/Petitioners also appealed finding of Code Enforcement
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 affumed the
Special Master's finding and order, The vested rights claim went to bench trial on May 25,2004. On
October 1,2004, the Court entered its final judgment in favor of Appell antslPetiti oners. The Court
held that AppellantslPetitioners have vested rights to maintain a mixed residential/commercial
structure on the subject property, and to use the subject property for both residential and conunercial
office purposes. The relief granted to AppelIantsIPetitioners is re~atively 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~confonning strucmres and uses, and (2) tile commercial
portion of the strUcture must substantially comply with current staodard 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. On November 4, 2004,
Petitioners filed motions to tax costS and for attorney's fees pursuant to g 51.105, Fla. Stat On
November 11, 2004, the County filed a motion to strike Petitioners' motion for attorney's fees. The
motion was heard on January 13,2005; order granting the motion was entered on February 9, 2005.
($29,372.44 as of January 31, 2005).
Industrial Communications & 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 tn Circuit. County filed
its answer brief on March I, 2004. Federal appeals court mediation process stayed the appeal
pending action on l.C.E 's proposed settlement, which was presented to and rejected by BOCC
Parties are awaiting setting of oral argument by 11th Circuit ($18,66L61 as of January 31, 2005).
Johnson B Writ of Mandamus challenging Director ofPlan.ning's determination that application for
"boundary determination" by alleged error requires zoning map amendment application. Applicant
applied for boundary determination based 011 allegation that BOCC previously adopted 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 informed owner to properly
file for zoning map amendment (Boundary determination may be placed on HOeC agenda without
the public notice required for a zoning change). Pursuant to oral argument, Monroe County agreed
to 'fe-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. ($1,799.62 as of
January 31, 2005).
Scotty's, d at v. Monroe County ~ Appeal to DOAH of Planning Commission's denial of
amendment to a major conditional use to demolish at.l existing strUcture and build a new Walgreens.
Appellants filed notice of appeal on October 10,2003, On February 16,2004, PJJ granted Florida
K.eys Citizens Coalition's motion to intervene. AppeHants filed their initial brief on May 4, 2004.
Florida Keys Citizen Coalition (intervenor) filed its answer briefon June 8, 2004 The County filed
its answer brief on August 26, 2004. Appellants filed a reply brief on November &, 2004. Orai
argument was held on January 31, 200S. On February 9, 2005, All entered final order rejecting
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certain findings ef the PlaPJling Commission, but otherwise affirming the decision to. deny
application. ($7,633,63 as of January 31, 2005).
Smart Planning and Growth Coalition v, Monroe County (Circuit Court Case No.. 03~CA-507~
P) _ SPGC challenge of NROGO allocations based on allegation that allocations violate
NROGOJComp Plan provisions because Key Large CornmuniKeys Master Plan not yet adopted.
Case was dismissed by DOAH for lack ofjurisctiction. Plaintiffs filed action in circuit court on same
grounds. County prevailed on its. metien to. dismiss fer lack of jurisdiction on grounds that plaintiff
is not an ~aggrieved party, as required by section 1633215, Florida Statutes, Plaintiffs filed an
amended complaint on February 20,2004. County tiled its answer on March 5. 2004. ($474.49 as of
January 31, 2005),
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