Item J1
LAW OFFICES
Hugh J. Morgan l\tIORGAN & HENDRICK w. Curry HarTis
Jmnes T, Hendrick 31 i WHITEHEAD STREET (1907 -1988)
Roben Cintron, Jr. KEy WEST, FLORlDA 33040 Hilary U. Albury
Derek V, Howard (lnO.1(99)
TELEPHONE 305.2965676
FACSnvITLE 305.296.4331
FAX TRANSl\'1ISSION
TO: Mayor Dixie Spehar (292-3466)
Mayor Pro Tern Charles McCoy (292-3577)
Commissioner George Neugent (872-9195)
Commissioner David Rice (289-6306)
Commissioner Murray Nelson (852-7162)
Richard CoHins, Esq. (292-3516)
Thomas J. Willi (292-4544) .
Tim McGarry
FROM: Teresa Ross for Derek V. Howard, Esq,
DATE; June 29,2005 OE
SUBJECT: GroVv1.h Management Litigation Report
Total number of pages including this cover sheet
ORIGINAL DOCUMENT(S):
X WILL NOT BE SENT - W1LL BE SENT
REGULAR - OVER,~IGHT
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COMi\1ENTS: Our File # 160-0 t
The lilformat,on conwm",j in !hi, fucsimi!c mq,1>ge is arrNn€y pm iJeged ...,d con!ldcnri.t llIHndoo ad}' fer !he US" of the indiv,dual or ~Illlty mmed
above. if Iii;; feader of 1I1IS m~ssag" .. ""1 the ,nfended reeipicM, you 'Ire h~l~by uGtified !h~t 1L'\Y disscm!l!aaOll, d.,[[ibulion or Cll):!y of l;,i~
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mC~$agc TO us anhe above adates. Vl.'\ the U. $ PonalSCrvlce. if you do 1101 ft'C"i"e un page:;, pklt.c call hack lIS ~()Oll as possible 305-296-5676. Th~
fdiuw,,,!; h om fax "Umber )0$.296.43'31.
P,O. SOX 1117, K!':Y WEST, Fl 33041 $ TElEPHONE 305 296-5676 ;;, FACSIMILE 305296-4331
GROWTH MAJ'lAGEMENT LITIGATION REPORT
TO: Board of COUnty Commissioners
Richard CoHins
County Attorney
Timothy McGa.'iY
Director, Growili Management Division
Thomas J. Willi
COlmty Administrator
FROM: Derek Howard, Esq.
Morgan & Hendrick
DATE: June 29, 2005
V llcatiolll Rentals
Neumont (Federal Class Acnon) - 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 their 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 IS, 2004, Plaintiffs/Appellants filed a
notice of appeal to the US Court of Appeals fur the 11 th Circuit from final judgment of the District
Court, and all interlocutory orders giving rise to me judgment. On September 15,2004, Appellants filed
a morion 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. Appellants filed their reply brief on
Match! 1. 2005. On April 7, 2005, Monroe County filed a motion for leave to file a surreply brief in
response to AppeJJants' new argument relating to the Class Action Fairness Act of2005. On AprH 21,
2005, Appellants filed their response to Monroe County's motion, which included a declaration of 11
local property manager offered as support for Appellants' assertion that a majority ofllie subject class
members are out-af-state residents. On April 27, 2005, Monroe County filed a motion to strike the
declaration, which was denied on May 25,2005. On May 2, 2005, the Court entered an order granting
Monroe County's motion for leave to file a surreply brief; brief was filed on May 24, 2005. Oral
argument is tentatively scheduled during the week of October 24, 2005. ($ I 23,471.24 as of May 31,
2005).
Takings Claims
Emmert - Complaint seeking inverse condemnation based on application of Momoe Countis wetland
regulations. Plaintiffs allege that Monroe County has deprived them of all economic use of their.
property, despite the fact that they were granJed partial beneficial use from the subject reg',JJationsj
which expanded the buildable area of their vacant Ocean Reef lot from approximately 1,800 to 2.500
square feeL Plaintiffs argue that their ability to build within this area is encumbered by Ocean Reef
Club Association deed restrictions requiring setbacks in excess of those required by Monroe County.
Momoe County'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 29,2004. On November 22, 2004, Plaintiffs filed:
an emergency motion for continuance; motion was heard and granted on November 24,2004. On
November 22,2004, Plaintiffs also filed a motion for leave 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, 2005, the
court entered an order granting Plaintiffs' motion for leave to fil.e 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 failure to file an answer to the second amended complaint
(despite the fact that the second amended complaint was not previously filedt the County moved to'
strike Plaintiffs' motion on April 4,2005. The County timely filed its answer to the second amendeil
complaint on April 8; 2005. On May 3, 2005, Plaintiffs filed a motion for partial summary judgment,
which is set for hearing on August 3, 2005. The trial has been set for the two (2) week trial period
beginning December 19,.2005. ($70,141.13 as of May 31, 20(5).
Galleon Bay - Three cases: (1) appeal of vested rights decision; (2) takings claim; and (3) third party
complaint against the State of Florida seeking contribution, indemnity and subrogation.
(1) On June 17,2004, the 3rd D.C,A. denied the County's petition for "lArnt of certiorari.
(2) As to the takings claim, Judge Payne entered surrunary judgment in favor of Plaintiff on November
10,2003. The order of the court found that a temporary taking began on April 21, 1994, and would
ccase on the date of the jury verdict, at which time a permanent taking would arise. The case was
scheduled to proceed with ajurytrial 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
taking on April 21, 1994, and granted Plaintiffs request to continue the mal until October 12,2004.
Plaintiff's counsel was delegated the task of reducing theCoun's announced ruling to a proposed,
modified order. On August 18,2004, Judge Payne entered final Judgment in favor of me County as to.
PlaintiffHanndore Schleu. 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
modi'fied order that substantively contradicted and strayed from the Court's ruling; namely, the proposed
order found that a temporary taking occurred an ApriJ 13; 1997. On October 4, 2004; the Courrentered
verbatim Plaintiffs proposed modified order Th.e trial was.s.uhsequently conti.nueduntil FebIUat}f 7,
2005.
On November 29, 2004, the County filed an amended motion for rehearing and/or motion for
reconsideration arguing, inter alia, the verbatim entry ofPlaintift's proposed modified order violated its
procedural due process rights. On December 13, 2004, the Court granted the County's motion and
vacated the modified order of October 4,2004. On December 27,2004, the Court entered its Order for
Nonbinding Arbitration.
On May 5.6, 2005, the parties (including Third-Party Defendant State of Florida) participated in
nonbinding arbitration before Gerald Kogan, Esq., a former member of the Florida Supreme Court. The;
issues arbitrated included (1) whether the taking found to have occurred by the tria! court was,
permanent or tempora.ry (or both); (2) the applicable measure of damages for the taking; and (3) whether ;
MOrlIne County is entitled to a contribution from the State as to all or a portion of the just compensation
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that Plaintiff is owed for the taking. The issue ofliability was not arbitrated, pursuant to the trial court's
arbitration order. On June 3, 2005, Kogan rendered his decision, substantially finding in favor of
Monroe County on all of the issues arbitrated. Kogan rejected Plaintiffs "two-takings" theory of
recovery, findi.tlg that there has only been a permanent taking for which Plaintiff is entitled to the fair
market value of the property on the date of the taking, plus simple interest at u~e statutory rate until the
compensation is paid, as just compensation (Plaintiff argued that it was entitled to rebut the statutory'
rates ""1m other rates of return that it could have achieved through selective investments, and that the
rate of return is applied on a compound basis). Kogan also found that Monroe County is entitled to a'
50% contribution from the State as to compensation owed to Plaintiff On June 6, 2005, Plaintiff;
rejected the arbitrator's proposed award and moved for an order setting the case for trial.
Prior to the arbitration proceeding, Plaintiff filed a motion to amend the summary judgment order of
November 10,2003, and notice of confession of error (seeking to change the taking date of April 21,
1994, to April 13, 1997). Thus, all the parties now agree that there was no taking on April 21, 1994.
The State filed its response to Plaintiffs motion to amend on May 18, 2005. The County filed its.
response to Plaintiff's motion on June 20, 2005. At a hearing on June 21, 2004, th: Court denied
Plaintiff's motion to amend. Pursuant to the ruling of the Court, the parties ...liB engage in a new round
of summary judgment proceedings on the issue of liability as to Plaintiffs allegation that a taking ofits
property began on April 13. 1997.
(3) As to the third party complaint against the State of Florida, the State moved to dismiss for failure to
stale 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 claim of contribution, as well as the State's motion to transfer. On May 24,2004, the State
moved to substitute the Department of Community Affairs and the Adrninistrahon Commission as third
party defendants On July 27,2004, the State "filed a notice of appeal to the 3rd D,c.A. of the non-final'
order denying the motion to transfer venue and petition for v.rrit oIprohibition/certiorari. On August 24,
2004, L1e COllrt granted County's motion to hold appeal in abeyance. On August 25, 2004, the Court
denied 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 the underlying action. ($199,295.49 as of.
May 31, 2005; does not include prior Galleon Bay matters)
Good - Plainti ff 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 administra.ti-'le.
requirements for filing a claim under the Bert Harris Act. The County's motion to dismiss is being held
in abeyance until Plaintiff obtains a pre-application letter of understanding 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 Ii status conference On February 17, 2005, Plaintiff Lloyd Good again met v.'ith County staff to
discuss. }JQtential development. On March 7, 2005, the County issued a letter on the proposed
development of Tracts A and B (property S. of U.S. 1). Pl3JUling staff is preparing a letter addressing
the development potential of the remaining property at issue (property N. of V.S, I). A case
management conference before the court is expected sometime in July or August. ($15,038.79 as of'
May 31,2005).
Hardin - Two cases: (1) case filed in federal district court alleging due process vjolations and inverse
condemnation based on code enforcement orders that resulted in a iien on Plaintiffs' property and (2) ;
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appeal of the code enforcement orders to the state circuit court, pursuant to Fi orida Statute 162.11.
(1) As to the federal case, the dist..-ict court entered its Order of Final Judgment: in favor of Monroe
County on August IS, 2003, dismissing Plaintiffs case 'Nith prejudice, based on reinstatement of state
court appeal of code enforcement orders.
(1) On September 3, 1999, Appellant (a pro se litigant) filed her notice of appeal from the following,
orders entered by the Code Enforcement Special Master in Case No. L9-9&.409: Order Denying Motion)
for Rehearing, Order Denying Motion For Slay of Fines; and Order Imposing PenaltylLien (Appellant
did not timely or belatedly appeal the Findings of Fact, Conclusions of Law, and Order entered by the
Special Master on April 16, 1999, which found Appellant in violation of various provisions of the
Monroe County Code relating to building permits and enclosures below the base flood elevation).
Appellant filed her Initial Brief on September 22,1999.
On October] 9, 1999, Monroe County filed its motion to dismiss based on various procedural grounds.
The Court granted the motion on September 27, 2004. Upon the filing of a motion for rehearing by]
Appellant, the court entered an order vacating its order granting the County's motion to dismiss and'
denying the County's motion on November 5, 2004.
The ruling on the County's motion to dismiss of October 19, 1999, was delayed because the Court had
previously entered an order sua sponte dismissing the appeal based on the absence of record activity for'
a period of over onc year. The courrvacated the order on June 24,2003. On August 10,2004, Monroe,
County filed a motion to dismiss for lack of prosecution, which remains pending.
Monroe County has not filed its /Ulswer Brief because severai pending motions of Appellant, including'
a motion to postpone the proceeding (filed on February 22, 2(00) are tolling the time schedule afthe,
proceeding.
On June 27, 2005, acase management conference was held before Judge Miller. The pending motions
are set for hearing on August 1, 1005. Monroe County will seek dismissal on the grounds that'
Appellant has failed to produce a sufficient record to allow the Court to competently dispose of the ,
issues before it, Appellant's failure to di.1igendy pursue the appeal, and other procedural defects.
($6,577. 93 as of May 31, 2(05).
Kalan - Takings claim filed as to residential property in Cahill Pines & Palms subdivision for failure Ul
obtain ROGD 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 beneficiaJ use detennination;as-\
required to exhaust available administrative remedies and ripen the case for judicial review. On June'
24,2004, the Court entered an order requiring theCounty 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 oftime, extending the deadline for the County to render a beneficial use determination until
January 20,2005. On October 26,2004, a beneficial use hearing was held before the Special Master.
The County filed another motion to extend the deadline for the rendering of a beneficial use
determination, which remains pending. On March 4, 2005, the Special Master rendered a proposed
denial ofbenefidal use, which was adopted by the BOee on June 15,2005. ($2,825.77 as of May 31,
2005),
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Other Matter.!
Department of Community Affairs v. Monroe County ~ Case bel:oreLaud and Water Adjudicatory
Commission in which DCA alleges that the County failed to comply "'1m various Camp Plan
requirements by failing to routindyamend endangen..'!d specjesmaps. a.1d vegetation surveys as to high,
& moderate quality ham..'11ock areas. DCA also alleges that the County has allowed higher ROGO
scores than should have been allocated due to failure to amend mapsJ thereby allowing more residential
development than should have been approved. DCA entered voluntary dismissal pending adoption of
moratorium & revised regulations, but moved forward with appeals as to individual. permits (see below).
($14,796.42 as ofMay31, 2005)..
iff Department (If Community Affairs v. Monroe County - Pursuant to 380,07, Ploridt{
Statutes, DCA appealed the building permit issued by Monroe County to Nancy Suarez-Cannon.'
DCA alleged 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 AU dismissed Respondent Nancy Suarez-Cannon from the case because she sold the
three subject lots to DC6, L.LC,
On June 13, 2005, DCA and mrcr"leJ1or DC6, LL,C entered into a Stipulated Settlement
Agreement, which was approved by the BOCC on June j 5, 2005, On June 16,2005, DCA filed
its Notice of Voluntary Dismissal with the Florida Land & Water Adjudicatory Commission,
On June 21,2005, the Commission entered its Final Order of DismissaL ($1,844,50 as oftv1ay
31, 2005).
O'Daniel and Hills v, Monroe County - Petitioners filed a vested rightsdaim in Circuit Court 0~
March 13,2002. Petitioners also appealed fmding of Code Enforcement Special Master that they were:'
conducting a commercial business- on the subject; which is in a resldential zoning district, without,
having first obtained a special use permit The Court affirmed the Special Master's fmding 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 Petitioners. The Cou.'i held that Appellants/Petitioners have vested rightstCl
maintain a mixed residentialJcommercial structure on the subject property, and to use the subject'
property for both residential andcommerdaloffice purposes. The rdief granted to Petitioners
relatively narrow compared to the relief sought The Court, for example, held that (I) any appHcatiQ:l)
for a Cha!lge in commercial use is subject to current regulations regarding non-conforming structures'
and uses, and (2) the commerda1pcrtion of the structure must substantially comply ",'ithcurrerrt,
standard building, electrical, mechanical and plumbing codes before a certificate of occupancy is issued,'
The Court did not vacate its prior order affirming the Code Enforcement Special Master order.
On November 4, 2004, Petitioners fikdmotions to tax costs and for attorney's fees pursuantto 9 57.105,.,
Fla. Stat. On November 11, 2004, the County filed a motion to strike the motion for attorney's fees for'
Petitioners' failure to cort'lplywith. theproceduml requin:::mentsof~57J05. On Febnmry 9, 2005, the'
Court entered its order granting the County's motion. On March 7,2005, Appellants/Petitioners filed a
notice of appeal as to the order granting the County's motion to strike. Appellants/Petitioners filed Ll]eir
Jp.itial Brief with L?te Third District Court of Appeal on June 6, 2005, arguing L.~at 9 57,
constitutionally infinn because the legislamre may not enact rules of court practice and procedure. The
"
..I
County has moved to dcfcr the deadline for the filing of its Answer Brief until August t, 2005.
($29,476.72 as of May 31,2005).
Industrial Communications & Electronics v. Monroe COUDty - LCE filed action against Monroe
County in federal court alleging wireless tower moratoria violated the Federal Telecommunications Act
of] 996 and the Fifth and fourteenth Amendments to the United States Constitution. The district col.U\
granted the county's motion to dismiss on grounds of res judicata/collateral estoppel (claims were!
identical to those brought in state court action and plaintiff failed to reserve federal claims therei~
LC.E.appealed the decision to the 11 th Circuit. \
On May 27, 2005, the 11 th Circuit vacated the judgment of the district court, but remanded with
instruction to dismiss the complaint for lack of jurisdiction. A proposed order was submitted by the,
County to the district court on June 28.2005. ($18,736.61 as of May 31,2005), '
Johnson ~ Writ of Mandamus challenging Director of Planning's determination that application for
"boundary detennination" by alleged error requires zoning map amendment application. Applicant
applied for boundary determination based On allegation that BOeC 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 fil~
for zoning map amendment, (Boundary determination may be placed on BOee agenda 'Without the'
public notice required for a zoning change), Pursuant to oral argwnent, Monroe County agreed to re-.
precess application for denial or approvai (application was preViously returned as incomplete) and
Plaintiffs may appeal as provided by the Monroe County Code if denied, On May 26, 2005, opposing
counsel submitted a proposed final judgment for the County's consideration. ($1,889.62 as of May3 1 ,
2;005).
Sierra Club~ et aI. v. Department of Community Affairs & Miami-Dade County (Monroe COUItly"
& City of Homestead as Intervenors) w On October 10, 2002, the Miami-Dade County Board of'
County Commissioners -approved Ordinance No. 02-198, which amends the Land Use Element and,
Transportation Element of Miami Dade's Comprehensive Growth Management Pla.'1 to change the'
designation of Krome Avenue from a "Minor Roadway" (2 lanes) to a "Major Roadway" (3 or more
lanes). On January 10,2003, Petitioners filed a ~ition for fonnal administrative hearing to challenge,
DCA's finding that this and other amendments to the Miami-Dade's Plan are "in compliance" as defined'
in section 163 3184( 1 )(b), Fla. Stat On December J 6, 2003, the ALl granted Monroe County's petition
to intervene. On March 22, 2004, Miami-Dade filed a motion to relinquish jurisdiction to DCAc l~
December 2004, the parties reached a tentative settlement agreement, but the Board of County-'
Commissioners ofMiami:Dad'eCotmtyformaUy rejected the agreement on March 1,2005. On Aprih
11,2005, City of Homestead filed its petltion for leave to intervene (in support of Miami-Dade); DOAH
granted the petition on May 4,2005. On May 11,2005, Petitioners filed their response to M.ia..'11i-Dade's
motion to re1inquishjurisdiction; theresponse was adopted by Monroe County. On June 3, 2005, DCA.
filed its response to Miami-Dade's motion to relinquish jurisdiction, asking the ALl to deny the motion. \
The case is set for final hearing on September J 9 through 23 at1d 26 through 30, 2005. (Legal services
are being provided by Morgan & Hendrick without charge to Malioe County).
Smart Planning llnd Growtb Coalition v. Monroe County (Circuit Court Case No. 03-CA.S07.P)-
SPGC challenged NROGO, alleging that the allocations violated NROGO/Comp Plan provisions
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because Key Largo CorrununiKeys Master Plan had not yet been adopted. Case was dismissed by
DOAH for lack of jurisdiction. SPGC filed action in circuit court on same grounds, County prevailed
on its motion to dismiss fOf lack of jurisdiction On grounds tllat SPGC 1$ not an "'aggrieved party," as
required by section 163.3215, Florida Statutes, SPGC filed an amended complaint on February 20,
2004, COUilty filed ltS answer on March 5, 2004. On Juiy 29, 2004, Judge Payne entered an order
granting Lee Rohels motion to withdraw as counsel for Petitioners; the order required Petitioner to,
obtain substitute counsel within 30 days or face dismissal. No attorney subsequently entered an'
appearance on behalf of Petitioners.
On June 9, 2005, Judge Payn.e entered verbatim a propose-dotder submitted by tbe County dismissing
the case with prejudice" ($47949 as of May 31,2005).
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