Item F2
LAW OFFICES
W. CURRY HARRIS
(1907 -1988)
HILARY U. ALBURY
( I 920 - 1999)
HUGH J. MORGAN
JAMES T. HENDRICK
KAREN K. CABANAS
JEDDE V. REGANTE
MORGAN & HENDRICK
3 I 7 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
FAX TRANSMISSION
TO: JIM ROBERTS
MAYOR GEORGE NEUGENT
COMMISSIONER DIXIE SPEHAR
COMMISSIONER SONNY MCCOY
COMMISSIONER NORA WILLIAMS
COMMISSIONER MURRAY NELSON
TIM McGARRY
CLERK'S OFFICE, BELLE DESANTIS
FAX #: 292-4544/ /
872-919:;/
292-3466 ,/"
292-3577 /
(305) 289-6306 ./
(305) 852-7162 ./
(305) 289-2536 .r
295-3663
FROM: KAREN CABANAS, ESQ.
DATE: OCTOBER 16, 2001
SUBJECT: GROWTH MANAGEMENT REpORT
TRANSMITTER: JON!
Total number of pages including this cover sheet: 5
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is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at
the above address VIA the U. S. Postal Service. If you do not receive all pages, please call back as soon as possible 305.296-5676. The following is our mx
numher 305-296-4331.
P.O. Box I I I 7, KEY WEST. FL 3304 I $ TELEPHONE 305 296-5676 $ FACSIMILE 305 296-433 I
fi'~
d.C je 0.0/
GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Jim Hendrick; Tim McGarry; Jim Roberts
FROM:
Karen K. Cabanas
DATE;
October 17 -18,2001
Vacation Rentals
Neumont (Federal Class Action) - 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 fmdings as ordered.
Awaiting rulings on pending motions as to procedural issues regarding Plaintiffs objections to
Magistrate's report. ($41,293.75 as of September 30, 2001).
Takings 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 oflimitations was denied; Case will proceed with discovery. ($13,274.50 as of September
30,2001).
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 detennine
liability and damages, Mediation as to damages was unsuccessful. Judge Garcia granted County's
motion for rehearing as to statute oflimitations regarding categorical taking claim; hearing is set for
November 7. ($153,424.74 as of September 30, 2001).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecumbe in which
Plaintiffs claim they were denied building permits 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 II
and III. Case is proceeding with discovery. Plaintiff filed an application for a building permit with
Momoe County prior to Village incorporation and eventually received a permit from Islamorada
subsequent to incorporation. Claims seek uue process/temporary taking against both MoCo and the
Village based on pennitting delays. Case is proceeding with discovery. No motions pending at this
time. ($9,546.50 as of September 30, 2001).
Phelps/Hardin - 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.
($959.00 as of September 30,2001).
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 found 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 based on res
judicata/collateral estoppel (prior final adjudication ofissues/c1aims) was denied. County has filed
motion for rehearing. ($1,248.00 as of September 30,2001).
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. Defendant Army Corps of Engineers has
removed case to federal court. ($1560.00 as of September 30, 2001).
Moore - (old Marvin' s restaurant) - Seeking declaratory relief and takings claims based on County
staff s interpretation and application of floodplain 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 County 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. ($2,905.00 as of September 30,2001).
Signs & 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-conforming billboards danlaged
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. ($15,002.50 as of September
30, 2001).
2
Stoky - Plaintiffs have filed two separate appeals of Planning Commission's decisions affrrming the
denial of two after-the-fact building permits (1) forreconstruction of porch and deck structures and
(2) for re-construction of a non-conforming sign. Division of Administrative Hearings judge
reversed the Planning Commission's resolution as to the sign appeal and upheld resolution denying
permits for porch/deck structures. Awaiting running of 30-day appeal period for porch/deck ruling.
($6,107.00 as of September 30, 2001).
Perry's (Key Largo) - Declaratory action almost identical to complaint filed by Republic Media &
Outdoor Systems challenging Post-Hurricane Emergency Permitting Policy and it's application to
billboards. Temporary injunction has been automatically dissolved due to dismissal of the Republic
Media appeal. Monroe County has filed motion to dismiss for failure to prosecute (no pleadings filed
within past 12 months.) Hearing set for November 8. ($1,403.50 as of September 30, 2001).
Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and 91983 claims
challenging Monroe County's policy that installing commercial electric service to No Name 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. Case has been set for trial in February 2002. Intervenors & County will1ikely file motion
for summary judgment. ($7,864.50 as of September 30, 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
September 30,2001).
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. Monroe County has filed motion to dismiss for failure to prosecute (no
pleadings filed within past 12 months). Plaintiffs 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 objection due to pendency of County's motion to dismiss for
lack of prosecution and failure to properly move for recusal by filing motion. Hearing on Motion to
Dismiss is set for Nov. 8. ($3,552.50 as of September 30, 2001)(does not includeprioT Galleon Bay
matters).
Ambrose - Declaratory action claiming vested rights under ~380.05(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. Plaintiffs have recently filed
renewed motion for entry of final summary judgment. Motion will need to be set for hearing to
resolve pending ownership issues. Plaintiffs were ordered to prove ownership for a single plaintiff,
but have filed affidavits as to 102 properties. ($39,408.75 as of September 30, 2001).
3
Lesick - New case pending with Division of Admin. Hearings appealing Planning Commission
resolution upholding Planning Director's letter detennining property not entitled to build-back rights
unless restored to principal residence. Property is currently used as vacation rental and is on an
Offshore Island, thus is non-conforming as to current and future zoning of residential conservation.
Initial and Answer briefs have been filed. Once Appellant's reply brief is filed, oral argument will
be set.
Upper Keys Citizens Association - New cases: Appeal of Planning Commission's approval of
North Key Largo sub-station for Fla. Keys Electric Co-Op. Group has also filed Petition for
Certiorari in circuit court raising due process claims for failure of commissioner to abstain from
voting after request by UKCA. Request for recusal did not raise grounds requiring recusal under
specific Florida statute governing voting conflicts of local public officers. Monroe County's
Response is due 10/26 for certiorari case and awaiting filing of record for Planning Commission
appeal.
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