Item J1
1. Morgan
1 ames T < Hendrick
Robert Ci.'1trOI1. Jr.
Derek V. Howard
OFFICES
lVIORGAN & lIENDRICK
31'7 WHITEHEAD STREET
KEy WEST, FLORIDA 33040
TELEPHONE 305.2965676
FACSiMILE 305,296A331
W. Curry Harris
09D7.1988)
Hi]",; U Albury
(1920-l
F4-\X TRANSMISSION
~~
TO: Mayor Dixie Spehar
Mayor Pro Tem Charles McCoy
Comrnissioner George Neugent
COn'.mlss1oner David Rice
Commissioner Murray Nelson
Richnrd Collins, Esq.
Thomas J. Willi
Tim McGarry
(292-3466)
(292':)577)
(872~9195)
(289-6306)
(852-7162)
(292~3516)
(292~4544)
(289~2854)
FROM:
Teresa Ross for Derek V, Howard, Esq.
DA TE:
September 1, 2005
SUBJECT:
Gmv.rth Management Litigation Report
Total nu.m.ber of pages including this COVer sheet:
ORIGINAL DOCUMENT(S):
_X~ WILL NOT BE SENT WILL BE SENT
REGULAR OVERi'\JJGHT
COM1\1ENTS: Our File # .160:01
ThG information wnln;m:a in lbiK fac'ltnnk me%l\g.e " nrtcnwy pri",kg~d ......d confiilem,,,', Hlltmkd only lOr the u.t (}f the mdl",icllll, Of ~n,ity "sm~d
.bave If the reader of this m%ssuge is HOI llle mt~nded rccop,ent, yrm .re h.",!>) volifbJ ,im! uny ji5$tmin~ti(jn, dl~tril:"'no" or top't of th.s
conllnunicati,m is If you hav0 rece'iV1.:G ihJs e"",m"nit;J;Qon jf' arrer, plc;l$* immedia!eJy notify ~i by re!q;hone <md.~ the Ofi~
mess> It> Ilcu"be VIA ,he U. $. PuN] $enrC(L jf yUt d(}!lOl tet<'''w nil pCg.E5, p1rj)j,CaUi 1x.d, "" '''On Jspo,g;!)Je 305~29&S676. n,C
foHowil1@ our fax oumher lfj5.196~.i)J1.
P,o. BOX111f, K;;:y
FL 33041 $ TELEPHONE 305 296.5576 .;; FACSIMilE 305296.4331
~ROWTH MA'JAGEMENT LITIGATION REPORT
TO:
Board of County Corr..missioners
llichard eoUins
Director, Grov:.1h Management Division
Thomas J. Willi
County Administrator
FROM:
Derek Howard,Esq.
Morga..'1. & Hendrick
September 1, 2005
DATE:
Vacation Rentals
Neumont (Federal Class Action) - Plaintiffs filed a class action swt in U.S. District Court alleging
vacation rental ordinance (Ordinance 004~ 1997) was prematurely enforced, is an unconstirutional taking
of their properties, and was adopted in violation of due process. On June 20, 2004, the U.S. District
CQurt 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 11th Circuit from fmal judgment of the District
Court, and an interiocutorj 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 IS, 200"t
On October 18, 2004, a mediation conference was held. On October 19, 2004, the Court denied
Appeflants' motion to stay briefing and ruled motion to certiry state-law questions 10 the Florida
Supreme Court is carried with the case, Appellants filed their initial briefon. December 15, 2004.
Monroe County filed its response brief on February 22, 2005. Appellants filed their reply brief on
March 11, 2005. On April 7, 2005, Monroe County filed a motion for leave to file a surreply brief in
response to Appellants' new argument relating to the Class Action Fairness Act of2005, On Apri121,
2005, Appellants filed their response to Momoe County's motion, which induded a declaration of a
local property manager offered as support for Appellants' assertion that a majority of the subject class
members are out-of-state residents. On Apnl 27,2005, Monroe County filed a motion to strike the
deciaration, which was denied On May 25.2005 < On May2, 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
argtm1ent is scheduled for October 26,2005. ($123,56:3.24 as of July :n, 2005),
Takinzs Claims
Ambrose - Declaratory action cIaimJng vested rights ll..'1dcr 93 80.0.5(l8) based on filing of subdivision
plats. Pursuant to summary judgment proceedings and his previous orders, Judge Payne ordered that
Plaintiffs prove ownership of a single Plaintiffs' lot $0 Ll1at legal issues may be appealed rather than
spend extensive time trial court litigating o'W'TI.ersrJp issues as to each lot at issue, Various
environmental groups were also granted leave to intervene, COlin entered final summary judgment for
approximately 75 Plaintiffs. Defendants appealed final Order. Third District reversed, holding that
vesting is not established by mere recording of plats; statute requires showing of reliance and change of
position to establish vesting, Plaintiffs' motion fonehearing was denied on February 18,2004. On
March 18, 2004, PlaintiffslPetitioners tlled a notice to invoke the discretionary jurisdiction of the
Florida Supreme Court. On July 9, 2004, the Florida Supreme Court denied PlaintiffslPetitioners'
petition for review, On July 14, 2005, DCA filed a motion to dismiss the circuit court action for failure
to prosecute; Monroe County joined In the motion. (S30,960.98 as of July 31,2005).
Emmert ~ Complaint seeking inverse condemnation based on application ofMorlIoe County's ,,^,ctland
regulations> Plaintiffs allege that Monroe County has deprived them of aU economic use of their
property, despite the fact that they were grfu'1ted partial beneficial use from the subject regulations,
which expanded the buildable area of the iT vacam Ocean Reeflot from approximately 1,800 to 2,500
,;quare feet. 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 Courl.ty.
Monroe County's motion to' dismiss was denied on December 12, 2002. Mediation was held on October
21, 2004. Case was set forbench 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 file a second amended complaint; the
complain! was filed on March 31, 2005, On March 31, 2005, Plaintiffs also moved for the entry of
default judgment against the County for fallure to file an answer to the second amended complaint
(despite the fact that the second amended complaint W3S not pre\lously filed); the County moved to
strike Plaintiffs' motion on April 4, 2005. The County th'nely filed its answer to the second fu'11enaed
complaint on April 8, 2005. On May 3,2005, Plaintiffs filed a motion for partial summary judgment
directed to their vested rights claim (Cou''1U). On August 3, 2005, the panies appeared before the Court
On Plaintiffs' mOiion. The Court continued the hearing on the grounds that discovery is stin ongoing;
the hearing was rescheduled for September 15, 2005> The trial has been set for the two (2) week trial
period beginning December 19, 2005. ($86,289.55 as of July 31, 2005).
Galleon Bay - Three cases: (l) 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.CA. denied the County's petition for writ of certiorari.
(2) As to the takings claim, Judge Payne entered Sll1J1Jnary judgment in favor ofPiaintiff on November
10,2003. The order of the court found that Ii temporary taking began on April 21, 1994, and would
cease on the date of the jury verdict, at which time a permanent taking would anse. The case >%1iS
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
taking on April 21, j 994, and granted Plaintiff's request to COntinue 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 fmal judgment in favor of the County as to
Plaintiff Hannelore SeWeu. On September 24, 2004, the Coum:y submitted a proposed modified order
consistent with t.':!e Court's July 26, 2004, ruling On October 3, 2004, Plaintiff submitted a proposed
modified order that substa."1tively contradktedandstrayed from the Court's rnling; namely, the proposed
Older found Uta! a ternporaf'j taking occurred on April j 3, 1997. On October 4, 2004, the Cou...rt entered
....
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verbatim Plaintiffs proposed modified order, The trial was subsequently continued until February 7,
2005.
On November 29, 2004, the County fiIed an amended motion for rehearing and/or motion for
reconsideration arguing, mter alia, the verbatim entry ofPlai.ntiffs proposed modified order 'violated its
procedural due process rights. On December 13, 2004, the: Co11.'"1 gran,ted 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 tOnneI' member of the Florida Supreme Court. The
issues arbitrated included (1) whether the taking found to have occurred by the tria! coati was
permanent or temporary (or both); (2) the applicable measure of damages fortl1e taking; and (3) whether
Monroe COt4'1ty is entitled to a contribution from the Smte as to all Of a portion of the just compensation
that Pl:iljntiff is owed for the taking. Thelssue ofiiabihty was not arbitrated, pursua.nt to the trial court's
arbitration order" On June 3, 2005, Kogan rendered his decision, substantially finding in favor of
MOrlToe County on all of me iSsues arbitrated. Kogan rejected Plaintiffs I 'two-takings " theory of
recovery, finding that there has only been a penn anent taking for which Plaintiff is entitled to the fair
market value of the property on the date of the taking, plus simple interest at the statutory rate until the
compensation is paid, as just compensation (Plaintiff argued that it was entitled to rebut the statutory
rates lVith other rates of return that it could have achieved through selective investments, and alat 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 suw.mary judgment order of
November 10, 2003, and notice of confession of error (seeking to change the taking date of April2!,
1994, to April 13, 1997). Thus, all the parties now agree that th.ere was no taking on April 21, 1994,
The State filed its response [0 Plaintiff's motion to amend on May 18, 2005. The County flIed its
response to Plaintiffs motion on June 20, 2005. At a hearing on June 21, 2004, the Court denied
Plaintiffs motion to amend. Pursuant to the ruling of the Court, the parties wHI engage in a new round
of summary judgment proceedings on the issue ofliability as to Plaintiff's allegation that a taking ofits
property began On Aprill3, 1997; the Sll.T.mary judgment hearing is tentatively scheduled for October
31, 2005. On July 18, 2005, the State med answers to the County's third party complaint and to
Plaintiffs second amended complaint.
(3) As to the third party complaint against the State of Florida" the State moved to dismiss for failure to
state a cause of action, as wen as a motion to transfer action to the Second Judicial Circuit in and for
Leon County, flonda" On May 24, 2004, the court denied t.~e 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 substi tute the Department of Community A.ffairs and the Administration Commission as third
party defendants. On July 27, 2004, the State filed a notice of appeal to the 3rd D.CA of the non~fma1
order denying the motion to transfer venue (Case NO'. 3D04~2036) and petition for \\'lit of
prohibition/certiorari (Case N(L 3D04-1920}- On August 24, 2004. the Court granTed County's motion
to hO'ld appeal in abeyance, On August 25, 2004, me Court denied Count,/s motion to hold petition in
abeyance, The Court deferred the deadline for the County to file h5 response, pendi.!lg resolution of
matters in the underly't'1g action. On July 18,2005, the State filed motions to dismiss boLl-] the petition
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for writ of prohibition/certiorari and the appeaL On August 30, 2005, the Court entered &..."1 order
granting the State's motion to dismiss the appeal. ($203,595 15 as of July 31, 2005; does not include
prior Galleon Bay matters).
Good - Plaintiff is seeking declaratory judgment that he be awarded "economically viable uses" as to
his Suburban Commercial and Destination Resort-zoned properties On Lower SugarioafKey, as well as
declaratory judgment "that the existing nonresidential moratorium be declared unlawfu1" (despIte fact
that moratorium ended with the adoption ofNROGO). Plaintiff is also seeking damages for inverse
condemnation based on the application of Monroe County's non~residential development moratorium
and regulations. in a separate proceeding, Plaintiff is pursuing a claim under the Bert Harris: Act On
August 27, 2001, MOl'u"Oe County filed a motion to dismiss Plaintiffs fIrst complaint; the motion was
denied on October 29,2001. On May 12,2003, Plaintifffiled an amended complaint. On June 6,2003,
Monroe County filed a motion to dismiss the atnended complaint. On June 23,2003, the Court entered
an order stating wat the County's motion to dismiss is under advisement, and holding case in abeyance
until Plaintiff obtains a letter of understanding as to the permissible uses ava!iabie on the subject
properties. Plaintiff and County staff met On April 26, 2004, to discuss potential development On
Februarf 14,2005, the parties appeared before the court for a status conference, On February 17, 2005,
Plaintiff again met with County staff to discuss potential development. On March 7, 2005, the Counry
issued a letter addressing the proposed development of Tracts A and B (property S. of US. I). On July
25, 20GS, t.he County issued another letter addressing the remaining subject properties. On August 1,
2005, t~e parties appeared before the Court for a case management conference. The Court reinstated
the case. ($16,352.91 as of July 31, 2005)~
Hardin - Two cases: (1) case filed in federal district court alleging due process violations and inverse
condemnation based on code enforcement orders that resulted in a lien on Plaintiffs' property and (2)
appeal ofUle code enforcement orders to the state circuit court.pursua.'lt to Florida Statute 162.1 L
(l) As to th.e federal case, the district court entered its Order of Final Judgment in favor of Monroe
County on August! S, 2003, dismissing Plaintiffs case with prejudice, based on reinstatement of slate
co!.lrt appeal of code enforcementorders.
(2) On September 3, 1999, AppeUant pro SEl litigant) filed her notice of appeal from the foHowing
orders entered by the Code E.l'Jorcernent Special Master in Case No. L9-98-409: Order Denying Motion
for Rehearing, Order Denying Motion For Slay of Fines; andOrderImposing PenaltylLien (Appellant
did not timely or belatedly appeal the Findings of Fact, Conclusions of Law; and Order entered by the
Special Master On April ] 6, 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 I 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 Seily'ity for
a period of over one yeaL The couxt the order on June 24,2003. On August 10.2004, Monroe
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County filed a motion to dismiss for lack of prosecution, which remains pendi..'1g.
Monroe County has not filed its Answer Briefbecause several. pending motions of Appellant, illdudi.'1g
a motion to pOSTpone the proceeding (filed on February. 22, 2000) are toBing the time schedule ofthe
proceeding.
On June 2005, a case management conference was held before Judge Miller; the pending motions
were set for hearing on August 1,2005. On August I) 2005, The Court deferred ruling on L'1e motions
and ordered the Appellant to produce a record of the code enforcement proceedings below.
($9,237.07 as of July 31, 2005),
Kalal} - Takings claim filed as to residential property in CahiH Pines & Palms subdivision for failure to
obtain ROGO allocation in 4 year period. Based on County's motion to dismiss, t.1e parties agreed to
entry of an order holding the caSe in abeya.'1cc while Plaintiff seeks a beneficial use determ.in.ation. as
required to exhaust available ad.'ninistrative remedies and ripen the case forjudicial 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 September21, 2004, the CoUrt granted the County's motion for an
extenSiOn oftime, extending t.he deadline for the COUllty to render a beneficial use detemU.."1ation 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 ofbeneficia1use, which was adopted by the BOCe on June 15, 200Se ($2,855,77 as of Jufy 31,
20(5)
Other Matters
O'Danici aud Hills v. Monroe County - Petitioners filed a vested rig.hts claim in Circuit Court on
March 13, 2002. Petitioners also appealed finding of Code Enforcement Special Master that they were
conducting a coffill1ercial business on the subject, which is in a residential zoning districtj without
haVing fIrst obtained a special use permit. The Court affinned the Special Master's Hoeing 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 Court he1dthat Appellants/Petitioners have vested rights to
maintain a mixed residCnl.iai!cornmercial structlU'e on the subject property, and to use the subject
property for both residential and corrunerdal office purposes. The rdicf granted to 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 regIllations regarding non-confouning structures
and uses, &'1d (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 affirming the Code Enforcement Specia.ll'vlaster ordeL
On November 4, 2004, Petitioners fHedmotions to tax costs and for attorney's fees pursuant to S 5 7 ~ 105,
Fla> Stat. On November 11,2004, the County filed a motion to strike the motion for attorney's fees for
Petitioners' failure to comply with the procedural requirements of 957>105. On February 9, 2005, the
Court entered its order grantingt~e County's On March 7, 2005, Appellants/Petitioners filed arnotice of appeal as to the order grantbg the County's motion to strike. AppeHantslPetitioners filed their
lnitial Brief ...rith the Third District Court of Appeal on June 6, 2005, arguing that ~ 57.105 is
consrirutionalJy infirm because the legislature may not enact rules of court practice a.,"'1d procedure. The
:;
County filed its Answer Brief on August 16,2005. The parties are awaiting the scheduling of om]
argument ($32,705.49 as of July 31, 2005).
Industrial Communications & Electronics v, Monroe County - LeE. filed action against l"-.1onroc
County in federal court alleging wireless tower moratoria violated the Federal TeiecorrtinupJcations Act
of 1996 and the Fifth and Fourteenth Amendments to the United States Constitution, The district court
granted the county's motion to dismiss on grounds of res judicata/collateral estoppel (claims were
identical to those brought in state court action and plaintiff failed to reserve federal clai.rns t.~erein),
I.C.E, appealed the decision to the 1 Hh Circuit.
On May 27,2005, the 11th Circuit vacated the judgment of the district court, but remanded with
instruction to dismiss the complaint for lack of jurisdiction. A proposed order was subm.itted by the
County to the district court on June 28, 2005. ($} 8,966.92 as of July 31, 20(5).
Johnson - Writ of Mandamus challenging Director of Planning's determination that application for
"boundary determination" by alleged error requires zoning map amendment application, Applicant
applied for boundary determination based on aHegationthat BOCC previously adopted change in
zoning. Director's detennination was based on review of records failing to show any error or prior
consideration of such zoning change. Director rejectedapp-lication andlnformed 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 oral 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 MOfl.Ioe County Code if denied. On May 26, 2005, opposing
counsel submitted a proposed final Judgment for the County's consideration, ($l,&89.62 as of July 31,
20(5).
Sierra Club, ct at v. Department of Community Affairs & Miami-Dade County (Monroe County
& City of Homestead as Intervenors) - 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 Gro\\th Management Plan 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 petition for formal administrative hearing to challenge
DCA's finding that this a.."ld other amendments to the Mia..'Tli.Dade's Plan are "in compliance" as defined
in section 163.3184(1)(b), Fla. Stat On December 16,2003, the it1.J granted Monroe County's petition
to intervene. On March 22, 2004, Miami~Dade filed a motion to relinquishjurisdktion to DCA In
December 2004, the parties rea.ched a tentative settlement agreement, but the Board of County
Commissioners of Miami - Dade County fonnaHy rejected the agreement on March 1, 2005, On April
11,2005, City of Homestead filed its petition for leave to intervene (in support of Miami-Dade); DOAH
gra.nted the petition On May 4, 2005. On May 1 I, 2005, Petitioners tiled their response to Miami-Dade's
motion to relinquish jurisdiction; the response was adopted by Monroe County, On June 3,2005, DCA
filed its response to Miami-Dade's malion to reHnquishjll.risdiction, asking the AU to deny the motion.
On July 21, 2005, DCA withdrew its response and joined h'1MiaJrlJ-Dade's motion to relinquish
jurisdiction and to issue a recow.mended ordeL On August 22,2005, the ALl denied Miami-Dade's
motion to relinquish jurisdiction, The case is set for final hearing on September 19 t}>...rough 23 and 26
through 30,2005. (Legal services are being provided by Morgan & Hendrick \V:ithout charge to Monroe
County).
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