Item K4
GROWTH MANAGEMENT LITIGATION REPORT
TO:
Board of County Commissioners
Richard Collins
County Attorney
Timothy McGarry
Director, Growth Management Division
Thomas J. Willi
County Administrator
FROM:
Derek Howard, Esq.
Morgan & Hendrick
November 2,2005
DATE:
Vacation Rentals
Ncumont (Federal Class 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 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 15, 2004, Plaintiffs! 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 aU 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. 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 01'2005. 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' assertion that a majority of the subject class
members are out-of-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. The oral
argument was scheduled to take place in Miami on October 26, 2005, but was cancelled due to
hurricane Wilma; the oral argument is tentatively rescheduled for November 18,2005. ($123,595.74 as
of September 30, 2005).
Takin2S Claims
Ambrose - Declaratory action claiming vested rights under 93 80.05( 18) 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 so that legal issues may be appealed rather than
spend extensive time in trial court litigating ownership issues as to each lot at issue. Various
environmental groups were also granted leave to intervene, Court 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 for rehearing was denied on February 18, 2004. On
March 18, 2004, Plaintiffs/Petitioners filed a notice to invoke the discretionary jurisdiction of the
Florida Supreme Court. On July 9, 2004, the Florida Supreme Court denied Plaintiffs/Petitioners'
petition for review. On July 14, 2005, DCA filed a motion to dismiss the circuit court action for failure
to prosecute; Monroe County joinedin the motion. ($30,960.98 as of September 30,2005).
Emmert - Complaint seeking inverse condemnation based on application of Monroe County's wetland
regulations. Plaintiffs allege that Monroe County has deprived them of all economic use of their
property, despite the fact that they were granted partial beneficial use from the subject regulations,
which expanded the buildable area of their vacant Ocean Reef lot from approximately 1,800 to 2,500
square 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 County.
Monroe 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] 0,2005, the
court entered an order 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 failure to file an answer to the second amended complaint
(despite the fact that the second amended complaint was not previously filed); the County moved to
strike Plaintiffs' motion on April 4, 2005. The County timely filed its answer to the second amended
complaint on April 8,2005. On May 3,2005, Plaintiffs filed a motion for partial summary judgment
directed to their vested rights claim (Count I). Plaintiffs' motion was heard on September 15,2005; on
October 22, 2005, the Court entered an order denying Plaintiffs' motion. A case management
conference was held on October 14, 2005. The trial has been set for the two (2) week trial period
beginning December 19, 2005. ($94,248.86 as of September 30,2005).
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 writ of certiorari.
(2) As to the takings claim, Judge Payne entered summary 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
cease on the date of the jury verdict, at which time a permanent taking would arise. The 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
taking on April 21, 1994, and granted Plaintiffs request to continue the trial until October] 2, 2004.
Plaintiffs 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 County submitted a proposed modified order
consistent with the Court's July 26, 2004, ruling. On October 3, 2004, Plaintiff submitted a proposed
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modified order that substantively contradicted and strayed from the Court's ruling; namely, the proposed
order found that a temporary taking occurred on April 1 3, 1997. On October 4,2004, the Court entered
verbatim Plaintiffs proposed modified order. The trial was subsequently continued until February 7,
2005.
On November 29, 2004, the County filed an anlended motion for rehearing and/or motion for
reconsideration arguing, inter alia, the verbatim entry of Plaintiff'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 fonner member of the Florida Supreme Court. The
issues arbitrated included (1) whether the taking found to have occurred by the trial court was
permanent or temporary (or both); (2) the applicable measure of damages for the taking; and (3) whether
Monroe County is entitled to a contribution from the State as to all or a portion of the just compensation
that Plaintiff is owed for the taking. The issue ofIiability 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, finding that there has only been a permanent taking for which Plaintiff is entitled to the fair
market value ofthe 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 with 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, the Court ruled that it
would rehear all issues ofliability, notwithstanding its prior decisions, and set September 19,2005, as
the deadline for the filing of any amended or supplemental summary judgment motions (order entered
on September 16, 2005). Upon motion to the court, the filing deadline for Monroe County was
extended until October 4,2005. On September 9,2005, Monroe County filed a motion to vacate the
summary judgment order of November 10,2003, which remains pending. On July 18, 2005, the State
filed answers to the County's third party complaint and to Plaintiffs second amended complaint. On
September 26, 2005, the State served its motion for summary judgment. Plaintiff did not file an
amended or supplemental summary judgment motion by the deadline set for such motions, nor did it
request an extension oftime to do so. On September 30,2005, Plaintiff served a "Motion for Leave to
Serve and File Motion Late," seeking to file another "Motion to Amend the Court's Prior Liability
Order," which alleges that a taking occurred on July 19,2001 (not April 13, 1997, as alleged inprevious
motion to amend). On October 4, 2005, Monroe County served its Cross-Motion for Summary
Judgment and Memorandum of Law. All pending motions were scheduled to be heard on October 24,
2005, but the hearing was cancelled due to hurricane Wilma; the hearing has not yet been rescheduled.
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(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 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 Administration 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 (Case No. 3D04-2036) and petition for writ of
prohibition/certiorari (Case No. 3D04-1920). On August 24,2004, the Court granted County's motion
to hold appeal in abeyance. On August 25,2004, the Com1 denied County's motion to hold petition in
abeyance. The Court deferred the deadline for the County to file its response, pending resolution of
matters in the underlying action. On July 18,2005, the State filed motions to dismiss both the petition
for writ of prohibition/certiorari and the appeaL On August 30, 2005, the Court entered an order
granting the State's motion to dismiss the appeaL On September 2,2005, the Court entered an order
granting the State's motion to dismiss the petition for writ of prohibition. ($221,709.88 as of September
30, 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 SugarloafKey, as well as
declaratory judgment "that the existing nonresidential moratorium be declared unlawful" (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, 200 I, Monroe County filed a motion to dismiss Plaintiffs first complaint; the motion was
denied on October 29, 2001. On May 12,2003, Plaintiff filed an amended complaint On June 6, 2003,
Monroe County filed amotion to dismiss the amended complaint. On June 23,2003, the Court entered
an order stating that 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 available on the subject
properties. Plaintiff and COllilty staff met on April 26, 2004, to discuss potential development. On
February 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 County
issued a letter addressing the proposed development of Tracts A and B (property S. ofD.S. 1). On Ju1y
25,2005, the County issued another letter addressing the remaining subject properties. On August 1,
2005, the parties appeared before the Court for a case management conference. The Court reinstated
the case. On September 1,2005, Plaintiff served a motion for leave to amend its complaint, which the
County opposed (proposed amended complaint alleges takings based in part on events that have
occurred since the case was filed and adds the" Airstri p Parcel" owned by Good consisti ng 0 l' 54 acres).
On October 14, 2005, Plaintiff filed an Amended Motion for Leave to Amend and Supplement
Complaint; the County filed its response on October 17,2005. Plaintiffs motion was heard on October
17,2005; the Court granted the motion to amend and supplement as to all property that was previously
the subject of Plaintiffs action, but denied the motion as to the Airstrip ParceL ($18,500.53 as of
September 30, 2005).
Kalan - Takings claim filed as to residential property in Cahill Pines & Palms subdivision for failure to
obtain RaGa 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 determination as to
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subj ect 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 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, thc Special Master rendered a proposed
denial of beneficial use, which was adopted by the BOCC on June 15, 2005. ($2,855.77 as of
September 30, 2005).
Other Matters
O'Daniel and Hills v. Monroe County ~ Petitioners filed a vested rights claim in Circuit Court on
March 13,2002. 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 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 Petitioners. The Court held that Appellants/Petitioners have vested rights to
maintain a mixed residential/commercial structure on the subject property, and to use the subject
property for both residential and commercial office purposes. The relief granted to Petitioners is
relatively narrow compared to the relief sought. The Court, for example, held that (1) any appl ication
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 affirming the Code Enforcement Special Master order.
On November 4,2004, Petitioners filed motions to tax costs and for attorney's fees pursuant to S 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 comply with the procedural requirements of S 57.105. On February 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 their
Initial Brief with the Third District Court of Appeal on June 6, 2005, arguing that 9 57.105 is
eonstitutionally infirm because the legislature may not enact rules of court practice and procedure. The
County filed its Answer Brief on August 16,2005. Oral argument was heard on October 19,2005, and
the parties are awaiting the appellate court's decision. ($42,782.73 as of September 30, 2005).
Industrial Communications & Electronics v. Monroe County - LC.E. tiled action against Monroe
County in federal court alleging wireless tower moratoria violated the Federal Telecommunications 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 plaintitf failed to reserve federal claims therein).
LC.E. appealed the decision to the 11 th Circuit.
On May 27, 2005, the lith 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. ($18,966.92 as of September 30,2005).
Johnson - Writ of Mandamus challenging Director of Plmming's determination that application for
"boundary determination" by alleged error requires zoning map amendment application. Applicant
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applied for boundary determination based on 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 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
Plaintiff may appeal as provided by the Monroe County Code if denied. On May 26, 2005, opposing
counsel submitted a proposed final judgment for the COlmty's consideration. On August 30,2005, a
proposed stipulated settlement agreement was submitted to opposing counsel for consideration.
($2,2] 9.62 as of September 30, 2005),
Sierra Club, et aI. 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 Growth 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 tor formal 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 16,2003, the ALl granted Monroe County's petition
to intervene. On March 22, 2004, Miami-Dade filed a motion to relinquish jurisdiction to DCA. In
December 2004, the parties reached a tentative settlement agreement, but the Board of County
Commissioners of Miami-Dade County formally rejected the agreement on March 1,2005. On April
11,2005, City of Homestead filed its petition for leave to intervene (in support ofMian1i-Dade); DOAH
granted the petition on May 4,2005. On May 11,2005, Petitioners filed their response to Miami-Dade's
motion to relinquishjurisdiction; the response was adopted by Monroe County. Onlune 3, 2005, DCA
filed its response to Miami~Dade's motion to relinquish jurisdiction, asking the ALl to deny the motion.
On July 21, 2005, DCA withdrew its response and joined in Miami-Dade's motion to relinquish
jurisdiction and to issue a recommended order. On August 22, 2005, the AU denied Miami~Dade's
motion to relinquish jurisdiction. The final hearing was held September 21-23 and 27-29, at which
Timothy McGarry testified for Monroe County. The parties are awaiting the ALl's decision. (Legal
services are being provided by Morgan & Hendrick without charge to Monroe County).
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