Item L1
Hugh 1, Morgan.
James T. Hendrick
Roben Cintron, k
Derek V. Howard
LAW OFFICES
MORGAN & HENDRICK
317 WH1TEHEAD STR[ET
KEY WEST, FLORIDA 33040
TELEPHONe 305.296.5676
FACSlMH..c 30S.296A:'31
W. Curry Harris
(1907-1988)
Hilary U _ Albury
(l920-1999)
FA..X TRANSMISSION
TO: COMMISSIONER SONNY MCCOY (292.3577)
COMMISSIONER GEORGE NEUGENT (872-9195)
COt\flMISSIONER DOOE SPEHAR (292~3466)
l\:1i\YOR PRO TEM DAViD RrCE (289.630<-t)
MAYOR MiJRRA.Y NELSON (852-7162)
RICHARD COLLINS, ESQ. (292-3516)
THOMAS J, WILLI (292-4544)
TIM MCGARRY (289-2854)
FROM:
TERESA Ross FOR DEREK V. HOWARD~ ESQ.
DATE:
MA V 10,2005
SUBJECT:
GROWTH MA'iAGEMENT LITIGA'flON REpORT
Total number of pages including tl>is cover sheet:
ORIGINAL DOCUMENT(S):
X WILL NOT BE SENT WILL BE SENT
REGtJLAR OVERi'\J1GHT
COMMENTS: Our File # 160-01
The ,nf\ltm~tiOl1 conlAioea m 11,,& iacsIDlJie mC55"BC i, aMmc)' j1tlHleged:u\G confhjcnti!l mteMed only 10f the us,;uf\hc 111,h";d~do,.cm;ry",,mtd
ub;)~'e if the re~dtf of th~$ n"c;,:~ag~ ~s not the loh~naed !CC~P!C3~t, you Me n~n;-DY l}C1: fied tn*T :iny J:h~'5CTninalionl di5tribu\1cm ur ~Gpy of \h~s
ccmmwm:.:11i-an is 5:cr~C!ly prnhiD.ked. if )h:JU h:1vg received this communicafion in er.rOf< p~~p. -;c ~mmedjatdy notify U~ by m}cphorli': and re>l,1m !he originw
mes,~gc to 'l~ ~t L"e Jihcw addres$ VIA ti,e U> S. PO'l..! S~rvlce. !frou d(> ,,(It receive all rag"'>, please call bodl a." <0011"-' po~s,bl~ J05-2)i6.5676. Tit"
followlng!s !jur fAX number 30$-296.4331.
P.O Box 1117. KEY WEST, FL 33041 $ TELE!>HONE 305296-5676 $ FACSIMilE 305296-4331
GROWTH MANAGEMENT LITIGATION REPORT
TO:
Board of County Commissioners
Richard Collins
Attorney
McGarry
Director, Growth Management Division
FROM:
Thomas I Wim
County Administrator
Derek Howard, Esq,
Morgan & Hendrick
May 10, 2005
DATE:
Vacation Rentals
Neumont (Federal Class Adion) - Plaintiffs filed a class ilction suit in V.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, Plaintiffs! Appellants
filed a notice of appeal to the U.S, Court of Appeals for the \ 1 th~ Circuit from final judgment of the
District Cou...rt, a.od ail interlocutory orders giving rise to the judgment. On September 15, 2004,
Appellants filed a motion to certify state~law questions to th.; Florida Supreme Cou."1 and to postpone
briefing pending certIfi.cation; 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
CQurt denied AppeU3J1ts' motion to stay briefing and ruled motion to certify state-law questions to L1e
Florida Supreme Court is carried with the case, AppeHunts filed tbeir initial brief on December 15,
2004, Monroe Counry filed its response brief on Febnmrj 22, 200$, Appellants filed !heir reply brief
On March 11, 2005. On April 7, 200S, Momoe Count"jfiled a m,otion for leave to ftle a surreply briefin
response to AppeUants' new argument relating to the Class Action Fairness Act of2005, On April 21,
2005, Appellants filed their response to Monroe County's motion, which included a declaration of a
local property manager offered as support for Appellants' ass<:rt1ofl that a majority of the subject class
members ar€: out-of-state residents, On April 2i, 2005, Monroe County filed a motion to strike the
declaration" which remains pending, On May 2, 2005, the Court entered an. order granting Mom-oe
County's motion for leave to file a surreply brief. (5122,698. 64 as of March 31,2005).
Takings Claims
Emmert - Complaint seeking inverse condenmation based on partial granting of beneficial use
application. Plaintiffs were granted partial beneficial use from wetland regulations, !hus expanding the
buildable area ofrheir vacant Ocean Reef iot from approximatdy 1,800 to 2,500 square feet However,
Plaimiffs argue that tiler cannot build with.in this area due to Ocean Reef Club Association deed
restrictions :requiring setbacks in excess of those required by Memoe County. Plaintiffs aneg~ thatcMonroe 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~ MODIOf County's motion to dismiss wus denied
on December 12, 2002. Mediation was held on October 21 ,2004, Case was set for bench trial on
November 29,2004. On November 22,2004, Plaintiffs filed an emergency motion for continuance;
motion was heard and granted on Noyember 24, 2004, On November 22,2004, Plaintiffs. also filed a
motion for !eave to file a second amended complaint in order to add a claim of vested rights. The
motion was heard on January 5, 2005, On March 10, 200,5, the cou..rt entered an ordet granting
Plaintiffs' motion for leave to file a second amended complaint~ the complaint was filed on March 31,
2005. On March 31,2005, Plaintiffs also moved for the entry of default judgment against the County
for faBare to file an answer to the second amended complaint (despite the fact t....lat the second amended
complaint was not previously filed); the County moved to strike Piaintiffs' motion on April 4,2005.
The County timely filed :its answer to the second amended cnmplaint on April g, 2005 On May 3,
2005, Plaintiffs filed a motion for partial surnmarj judgment. which is s.et for hearing on June 2,2005.
($65,177.45 as of March 31,2(05).
Galleon Bay - Three cases: (1) appeaJ 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 t.\e COlli'1ty'g petition for 1Atut of certiorari.
(2) As to the takings claim, Judge Payne entered Sumn1ID-Y judgment in favor ofPlaintjff on liability on
November 10,2003, finding both a temporary and permanent laking 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
taldng on April 21, 1994, and gra.'lted Plaintiffs request to continue the trial 1.LntH October 12, 2004.
Plaintiff's counsel was delegated the task of reducing the COlh"i'S a.,.....nounced ruling to a proposed
modified order" Ou August 1 &,2004, Judge Payne entered finaljudgrnent in favor of the County as to
PlaintiffHannclore Sc.h.Ieu. On September 24, 2004, the County submitted a proposed modified order
consistent with the Court's July 26, 2004, ruling. On October 3,2004, Plaintiff submitted a proposed
modified order that subst(lUtively contradicted and strayed from the Court's ruling; namely, the proposed
order found that a temporary taking occurred on April 13, 1997. On October 4,2004, the Court entered
verbatim Plaintiffs proposed modified order. The trial was subsequently continued until February /,
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 proc~dural. due process rights of the County.
On November 2,2004, Plaintifffiled a reply to the County's motion for rehearLig. On November 29,
2004, t.he CouIltyfHed an amended motion for rehearing and/or motion for reconsideration. On
December 13,2004, the Court gra.Tlted !he County's motion and vacated t..i-te modified order of Octo her
4,2004. On April 27, 200S, Plaintiff filed its motion to amend smnmary judgment on liability a..'1d
notice or confession of error (seeking to change taking date of April 21, 1994, to Aprill3, 1997)~ On
May 5-6, 2005, pursuant to court order, the parties (i..'1c1uding Third~Party Defenda.,'1! State of Florida)
participated in nonbinding arbitration before Gerald Kogan. Esq., a former member of the Florida
Supreme Court. Tne issues arbitrated included (1) whether the taking found to have occurred by the
trial cou."'t was pem1anent or temporary and (2) 'Nhether Monroe County is entitled to a contribution.
from the State as to all or a portion of!i~e just compensation tl1:it Plmntiffis owed for the. taking. Kogan
is expected to render a decision by June 6,2005.
(3) As to !bird party complaint a.gainst State of Florida, the St,;,te 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
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~_n .~_, _~c ----........
County, Florida. On May 24, 2004, t.ite court denied the State'S motion to dismiss as to the Cmmt'j's
claim of contribution, as well as the State's motion to transfer. On May 24,2004, the State moved to
substitute the Department of Commwlity Affairs and the Adminlstration Commission as ttJrd party
defendants. On July 27,2004, the State filed a nOiice of appeal to the 3rd D.C.A. of the non-fin.al order
denying the motion to tra..'1sfer venue and petition for writ ofproh.ibitionlcertiorari On August 24, 2004,
the Court granted County's motion to hold appeal ill abeyance. On August 25,2004, the Court denied
COl.ll1ty'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 the underlying action. ($168,968,20 as of March 31,
2005; does not include prior Galleon Bay matters)<
Good - Plai.ntiff is seeking declaratory relief and takings claim for - .16 acre Sugar!oaf Shores property
due 1Q commercial moratorium which began January 4, 1996. Plaultiffis also pursuing ad...-ninistrative
requirements for filing a claim under the Bert Harris ACL The County's motion to dismiss is being .!'>..eld
in abeyance until Plaint]ff obtains a pre-application letter of undersumding as to the level of
development that is permissible on each parcel of property, Plaintiff and the County staff met on April
26,2004, to discuss potential development. On February 14,2005, the parties appeared before the court
for a status conferencee On February 17, 2005, Plaintiff Lloyd Good again met v.'ith Coum:y staff to
discuss potential deve1opuaent. On March 7, 2005, the Cou,'1t'j issued a letter on the proposed
development of Tracts A and B. ($14,963.42 as of March 31,2005).
Phelps!Hardin - Plaintiffs filed daim in federal court for due process and inverse condemnation based
on code enforcement proceedings that resulted in a lien on Pbintiffs' property, Fed.eral court entered
judgment in favo[ofMoflfOe County due to reinstatement of state court appeal of code enforcement
order, On August 10,2004, the County filed a motion to di$miss th.e state court appeal for lack of
prosecution, On September 27, 2004, the Court dismissed the appeal. On October 5, 2004,
Plaintiff I Appelhmt 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 March 31,2005).
Kalan - Takings claim filed as to residential property in C2lhill Pines & Palms subdivision for failure to
obtain ROGO allocation in 4 year period. Based on County's motion to dismiss, the pa.lties agreed to
entry of an order holding the case i.n abeyance while. Plaintiff "eeks a beneficial use determination, as
required to exhaust available ad..-ninistrative 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. On September 21,2004, the Court granted the County's motion for an
extension of time; extending the deadline fur the County to render a beneficial use determination until
Ja.'1uary 20, 2005e On October 26, 2004, a beneficial use hearlng was held before tile Special Master.
The County filed a..,other motion to extend the deadlin.;; for t.l-J.e renderi.ng of a beneficial use
determination, wt.-.ich rernains pending" On March 4, 2005, w1.e Special ~,flaster tendered a proposed
denial of beneficial use. ($2,150.77 as of March 31, 2005).
Other Matters
Department of Community Affairs v, Monroe CQunty - Cuse before Land and Water Adjudicatory
Corrnnission in which DCA alleges t,l)at the County failed to comply with various Comp Plan.
requllemems by failing to routinely amend endangered species maps, and vegetation su.!'Veys as to high
& moderate quality ha...nmock areas. DCA also alleges that the County has allowed f',1gher ROGO
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scores th;h'1 should have been allocated due to fuilure to. amend maps, thereby allowing more residential
development than should have been approved. Case was set for administrative hearing in Ja.!1ua.; 20040
DCA entered voh.mtarj dismissal pending adoption ofmoratoriu..rn &. revised regulations, but moved
for-vvard with appeals as to individual permits (see below), (51) 4,796.42 as of February 28,20(5),
. Department of Community Affairs y, Monroe Cuunty - Pursuant to 380,07, Florida
Swwtes, DCA is appealing the building permit issued by Monroe COtl.."l.ty to. Nancy Suarez-
Can..'1OiL DCA alleges t.lJat Monroe County did not correctly interpret and apply portions of il.s
Comprehensive Plan and LDRs in scoring the application tor development. On February 25,
2004, the AU dismissed Respondent Na.Tlcy Suarez-Can.non from the case because she sold the
t.'luee subject lots to DC6, LLC. On May 4,2004, DC6 (intervenor) sent settlement proposal to
DCA in which it proposes to relocate the subject build iug permit to a neighboring cleared lot
(the neighboring lot is the subject of a code enforcement proceeding in which the County alleges
the lot was illegaHy cleared). On November 4,2004, DOAH granted the parties' joint motion
for continuance and placed case in abeyance to allow for settlement negotiations. ($1,357.00 as
of March 31, 2005).
O'Dauiet and Hills '\t. MonroI.' County @AppeHants/PetitioHGfS filed a vested rights claim in Circuit
Court on March 13.2002. AppellantsfPetltioners also appealed finding of Code Enforcement Special
Master that they were conducting a commercial business on th:= subject, wl:-ich is in a residential zoning
district, \'vlthout having first obtained a special use permit. The court affirmed the Specm] Master's
fmding and order, The vested rights claim went to bench trial on May 25,2004. On October 7,2004,
the Court entered ~ts final judgment in favor of Appellants/Petitioners. The Court held that
AppeDantsiPetitioners have vested rights to maintain a mixed residentiaJ/cornmerdal structure on the
subject property, and to use the subject property for bot.~ residential a..'1d commercial office purposes.
The relief granted to AppeHa!lts/Petitioners is relatively nanow compared to the relief sought. The
Court, for exa..'1lple, held that (1) any application for a change In commercial use is subject to current
regulations reg<U"ding 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 Cou."1: did not vacate its prior order affirming the
Code Enforcement Special Master order, On November 4,2004, Petitioners filed motions to tax costs
and for attorney's fees pu.rsuant to S 57.1 05, 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 i3, 2005;
order granting the motion was entered on February 9, 2005. On March 7; 2005, Petitioners filed a
notice of appeal as to the order griliitmg the County's motion to strike, ($29,446.72 as of March 31,
2005),
Industrial Communications &EJedrtlnics - Federal case alleging '\.\-1re!ess tower morat,)ria were
unconstitutional on vanous grourrds and violated Federal T elecommurclcatiollii Act Case was dismissed
by trial cou...'i based on claims being identical to those brought in state court ac.tion and failure to reserve
federal daims therein, Case is pending on appeal in the 11 th Circult- COIL'lty filed its answer brief on
March 1, 2004, Federal appeals COUl""1 mediation process stayed the appeal pending action on LeE '$
propDsed settlement, which was presented to and rejected by BOCe. Parties are awaiting senL.'lg of oral
argument by t.lte 11t.~ Circuit. ($18,661.61 as of March 3 i, ;lnos),
Johnson - Wiit of Manda.l11us challenging Director of Planning's. determination that application
"bOWldary determirm,tion" by alleged error requires zoning rnap a..nendment appHcatio.rt AppHcant
4
applied for boundary determination based on allegation t.~at ROCe previously adopted change in
zoning. Director's determiliation 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 zor.mg map a.'!1endment. (Boundary determination may he placed on BOeC agenda without the
pubHc notice required for a zoning: change). Pursuant to oral argument, Monroe Cmmty agreed to re-
process application for dercial or approval (application was pre\c1.ously retu...'11ed as incomplete) and
Plaintiffs may appeal as provided by the Monroe County Code if denied. ($1,799.62 as of March 31,
2005).
Sierra Club, et at v, Department ofCommuulty Affairs & Miami-Dade County (1\1onroe County
as Intervenor) - On October 10,2002, the tvliami-Dade County Board of Cm.L'1ty Commissioners
approved OrdinaJlCe No. 02-198. which amends the Land USt~ Element and Transportation Element of
Miami Dade's Comprehensive Growth Management Plan to change the designation of Krome Avenue
from a "Minor Roadway" (2 la...'1es) to a "Major Roadway" (3 or more lanes). On January 10,2003,
Petitioners filed a petition for formal administrative hearing to challenge DCA's finding that thIS and
other amendments to the Miami-Dade's Plan are "in compliance" as defmed in section 163 .3184( 1 )(b),
Fla. Stat. On December 16,2003, the ALJ granted Monroe County's petition to intervene. On Marr;;h
22, 2004, Miami-Dade med a motion to relinquish jurisdiction to DCA. In December 2004 ~ the parties
reached a tentatIve settlement agreement, hut the Board of County Commi.ssiOl1i.~rs of Miami-Dade
County formally rejected the agTeement on March 1, 2005. On April 11 , 2005, City of Homestead filed
its petition for leave to intervene (in support of Miami-Dade); DOAH granted the petition on May 4,
2005, The case is set for final hearing on September 19 fr...roligh 23 and 26 through 30, 2005, (Legal
services are being provided by Morga..'1 & Hendrick \\'1thout charge to Monroe County),
Scotty's, ct at v, Monroe County ~ Appeal to DOAH ofPianHLl1g Corumission's denial ohmendment
to a major conditional use to demolish an existing structure Jnd bu.ild a new Walgreens, Appellants
filed notice of appeal on October 10, 2003, On February 16, 1.004, ii..LJ granted Florida Keys Citizens
Coalition's motion to intervene, Appellants filed their initial brief on May 4, 2004, Florida Keys
Citizen Coalition (intervenor) flied its answer brief on June 8, 2004. The County flied its answer brief
on August 26, 2004, Appellants filed a reply brief on November 8, 2004. Oral argument was held on
January 31, 2005. On February 9, 2005, ALl entered fInal order rejecting certain findings of the
Plar.ning commission, but otherwise affirming the decision to deny application, Appellants filed an
appeal of me final order, which is being handled by the County Attorney's office, ($7,633,63 as of
March 3 L 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 NltOGO/Comp
Plth"i provisions because Key Largo Corrum.miKeys Master Plan not yet adopted, Case '\.VUS dismissed by
DOAH for lack of jurisdiction. Plaintiffs filed action in circuit court on same grounds~ County
prevailed on its motion to dis.miss for lack ofjurisdicti.on on grounds that plaintiffi" not an "aggrieved
party," as required by section 163.3215, Florida Statutes plaintiffs fiied an amended complaint on
Februa-ry 20.2004. COUIllY filed its answer on March 5,2004. ($474.49 as of March :n, 2005).
5