Item F2
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGany; Jim Roberts
FROM:
Karen K. Cabanas
DATE:
September 19 - 20, 200 I
Vacation Rentals
Neumont (Federal Class Adion) - Federal class action case alleging vacation rental ordinance
was prematurely enforced and is an unconstitutional taking of Plaintiffs' properties. Following
hearing on cross-motions for summary judgment, the Magistrate Judge issued a report and
recommendation to dismiss Plaintiffs' claims for failure to exhaust state court remedies and under
the abstention doctrine. Upon receipt of Plaintiffs' objections to that report and Monroe
County's response, Judge Paine issued an order remanding the matter back to the Magistrate
Judge to make specific factual findings in support of her recommendation to dismiss all of
Plaintiffs' claims. Magistrate issued her report, amended to include factual findings as ordered.
Plaintiffs have filed a motion for enlargement of time to file their objections. Monroe County filed
response in opposition, as roles of court do not provide for enlargement oftime regarding orders
of court making facmal findings. ($40,533.75 as of August 31, 2001).
Takine:s Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Monroe County's motion for summary judgment based on
statute ofIimitations was denied; Case will proceed with discovery. ($13,274.50 as of August 31,
2001).
Shadek - Takings claim for ~570 acres of North Key Largo property based on the 1980's Major
Development Moratorium. Trial was held February 21, 22 and March 13. Judge Garcia ruled in
favor of Plaintiffs on all takings claims, declaring Monroe County liable for denying Plaintiffs all
economic use of their property for an eight-year period_ Case was bifurcated to separately determine
liability and damages. Appellate co-counsel revised his original opinion and advised that order is not
subject to appeal at this time. Executive session was held Sept. 5. Mediation on damages will be held
before fonner Judge David Kirwin Sept. 25 with K.Cabanas, HMorgan, J.Roberts, G.Neugent and
M.Rosch appearing on behalf of County. ($150)792.24 as of August 31,2001)_
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe in which
Plaintiffs claim they were denied building pennits for new construction. Plaintiffs have filed suit
against Islamorada and Monroe County since permitting requests began prior to incorporation.
Monroe County's motion for summary judgment was denied as to count I, but granted as to counts IT
and m. Case is proceeding with discovery. Plaintifffiled an application for a building permit with
Monroe County prior to Village incorporation and eventually received a permit from Islamorada
(. ~
LAW OFFICES
3 I 7 WHITEHe:AO STREET
KEY WEST. FLORIDA 33040
W, CURA'f HARRIS
(IQ07-lgeS)
HIIJl.~ U. ALBURY
(1920 -) GlgG)
HU~H .J, MOA!~AN
.JAMI!!:S t. HE:ND~ICK
KARE:N K, CABANAS
JEDDE V, RI!!:GANTE:
MORGAN &. HENDRICK
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR GEORGE NEUGENT
COMMISSIONER DOOR SPEHAR
COMMISSIONER SONNY MCCOY
COMMISSIONER NORA WILLIAMS
COMMISSIONER MURRAY NELSON
TIM McGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292-454~
872-919V
292-3460
292-357Y /
(305) 289-6306/
(305) 852-7162
(305) 289-2536
295-3663
FROM: KAREN CABANAS, ESQ.
DA TE: SEPTEMBER 17, 2001
SUBJECT: GROWTH MANAGEMENT REPORT
TRANSMITTER: JON!
Total number of pages including this cover sheet: 4
ORIGINAL DOCUMENT(S):
_x_WILL NOT BE SENT
REGULAR
COMMENTS:
WILL BE SENT
OVERNIGHT
TI1C infOrIIlil\io1'1 contniDed in Ylis fac3imUc IIlCsS<(ge is attorney priw~ged and confidentiul, idtwdsd only for the use ofthc individual or entity ~d
above, 11'thc rcnder of this message is not ~ intcndcd recipient, you arc hereby nOUfied tba1 any dissemination, distribution or copy aftbis eommunication
is stricl1y prohibited. If you have received this communication in =Or, please immcdial.;ly notlfY us by ldc:phone aJld rc:tum the originallllal!lllge1o us at
th~ above addres~ VIAthc u. S. Postal Service. If you do not receive all pag-=s, please call bElck;t:S soon a.~ pOllBibl; 305.296-5616. The followingmourfllx
number 305-296.4331.
1",0, Box 1 1 17, KEYWE.ST, F'L 33041 $ ~LE:F'HONE .305 296-567e $ F"AC:!;IMILE: .:;\05 296-43.:;\1
subsequent to incorporation. Claims seek temporary taking against both MoCo and the Village based
on permitting delays. Case is proceeding with discovery. No motions pending at this time.
($8,942.00 as of August 31, 2001).
PheJpslHardin - Claim brought in federal court for due process and inverse condemnation based on
code enforcement proceedings that resulted in a lien on Plaintiffs' property. Monroe County has filed
a motion to dismiss based on Plaintiffs' failure to properly appeal code enforcement orders and
because Plaintiffs' similar claims are still pending in state court. Awaiting ruling on those motions.
($909.00 as of August 31,2001).
Gustinger - Case stems from code enforcement prosecution and order imposing lien. Monroe
County filed suit to collect monies due under lien. Property owner counter-claimed for declaratory
relief and inverse condemnation based on code enforcement proceedings. Plaintiff was fOWld in
violation of various code provision for failure to reconstruct or demolish a non-conforming structure
damaged by hurricane. Under 50% rule, said structure could not be permitted, as it previously
existed. The Special Master's findings were not appealed. Plaintiff's application for building permit
was denied and not appealed. Monroe County's motion for summary judgment has been scheduled
for October 3. ($1,248.00 as of August 31,2001).
Pontin - Newly filed case alleging temporary and permanent taking of property due to allegedly
conflicting regulations of County and ACOE/DEP wherein each required the other's prior approval
before issuing permits to fill land & plant trees. Monroe County has filed a motion to dismiss based
on statute of limitations because Plaintiff was first made aware of the conflicting regulations in 1984
and has also failed to exhaust administrative remedies. Claims were previously filed and dismissed in
1985 for failure to seek administrative remedies. ($1560.00 as of August 31,2001).
Moore - (old Marvin's restaurant) - Newly filed case seeking declaratory relief and takings claims
based on County staff's interpretation and application offloodplain regulations. Motion to Dismiss
has been filed based on failure to exhaust administrative remedies (Code provides specific procedures
for appealing such interpretations) and failure to obtain a final decision from the COllllty regarding the
application of said regulations through the administrative process. Under established law, only the
BOCC is authorized to issue a "final" decision for purposes of satisfying the ripeness doctrine - a
prerequisite for subject matter jurisdiction. Case is proceeding \\lith discovery and settlement
discussions. ($2,574.00 as of August 31, 2001).
Slims & Billboards
Republic Media/Outdoor Systems - Declaratory action claim filed by billboard owners challenging
applicability of Post-Hurricane Emergency Permitting Policy and the billboard valuation schedule
pursuant to code regulations prohibiting repair of non-confonning billboards damaged beyond 50% of
their value. Plaintiffs have provided more complete answers to discovery regarding material of
construction for existing billboards. Answers have been forwarded to code enforcement to compare
with County files to determine extent of unpermitted work ($14,749.00 as of August 31,2001).
2
Stoky - Plaintiffs have filed two separate appeals of Planning Commission's decisions affinning the
denial of two after-the-fact building permits (1) for reconstruction of porch and deck structures and
(2) for fe-construction of a non-confonning sign. Division of Administrative Hearings judge reversed
the Planning Commission's resolution as to the sign appeal Oral argument on deck appeal was held
July 24; awaiting ruling from Judge. ($6,029.00 as of August 31, 2001).
Perry's (Key Largo) - Declaratory action almost identical to complaint filed by Republic Media &
Outdoor Systems challenging Post-Hurricane Emergency Pennitting Policy and it's application to
billboards. Temporary injunction has been automatically dissolved due to dismissal oftl1eRepublic
Media appeal. Monroe County has filed motion to dismiss for failure to prosecute (no pleadings filed
within past 12 months.) ($1,403.50 as of August 31,2001).
Other Matters
Taxpayers fo... Electrification of No Name Key - Declaratory, vested rights, and 91983 claims
challenging Momoe County's policy that installing commercial electric service to No N arne Key is
prohibited by the 2010 comprehensive plan. Proposed settlement agreement was denied by BOCC;
case will proceed in litigation. Property owners opposing electrification were granted leave to
intervene. ($7,825.50 as of August 31,2001).
Clay (Big Pine Moratorium) - Complaint filed against Monroe County alleging various claims
(takings, vested rights, etc.) based on the de facto building moratorium on Big Pine due to the traffic
level of service. Judgment was entered in favor of Monroe County. Plaintiffs have appealed to 3rd
District Court of Appeals. Briefing schedule has not yet been entered by court. ($7,431.50 as of
August 31, 2001).
Galleon Bay - Petition for Certiorari review ofBOCC's decision to deny vested rights application.
Monroe County filed its responsive pleading. No hearing has been set; case has been transferred to
lower keys division. Momoe County has filed motion to dismiss for failure to prosecute (no
pleadings filed within past 12 months). Plaintiff's have attempted to reinitiate case by filing notice that
case is at issue (ready for trial) and sent correspondence to Judge Garcia requesting recusal. Monroe
County sent correspondence in obj ection due to pendency of County's motion to dismiss for lack of
prosecution and failure to properly move for recusal by filing motion. ($2,675.00 as of August 31,
2001)(does not include prior Galleon Bay matters).
Ambrose - Declaratory action claiming vested rights under ~3 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 and will now have standing to file briefs on
appeal Still awaiting Plaintiffs' filing of appropriate discovery requests to prove ownership of single
lot, as ordered. ($39,408.75 as of August 31, 2001).
3