HomeMy Public PortalAbout1993-12-29 Special MeetingZ56
COUNCIL MINUTES
SPECIAL MEETING - DECEMBER 299 1993
The special meeting of the Bal Harbour Village Council was
held on Wednesday, December 29, 1993, in the Council Chamber at
Bal Harbour Village Hall. The meeting was called to order at 9:35
a.m. by Mayor Spiegel. The roll was called and those present were:
Mayor Estelle Spiegel
Assistant Mayor Matthew B. Blank
Councilman James E. Boggess
Councilman Andrew R. Hirschl
Also present: Carole Sherouse Morris, Village Manager
Jeanette Horton, Village Clerk
Richard J. Weiss, Village Attorney
Absent: Councilman Sol M. Taplin
As a quorum was determined to be present, the,-, meeting
commenced.
Mayor Spiegel stated the reason for this special meeting is to
discuss the proposed Amphitheater in North Miami.
2. Discussion of Amphitheater: Mrs. Morris introduced Sam
Poole, from the firm of Holland & Knight; David Wolp in, City of
North Miami; Charles Brown, Chairman of the Citizens Advisory
Committee; and John Fletcher.
Mr. Poole distributed to the Council members a copy of his written
recommendations. He then proceeded to read those recommendations
into official record.
Re: Pichette V. City of North Miami, et al.
1.
Dear Mayor and Members of the
Bal Harbour Village Council:
You have asked for Holland -& Knight's recommendations
on the question of wheth0€ Bal Harbour Village should
fund the referenced litigation filed by John Fletcher,
Esq. Absent an agreement by the City of North Miami that
funding is not a breach of the February 23, 1993, Joint
Resolution adopted by the Bal Harbour Village Council and
the North Miami City Commission, Holland & Knight
recommends that Bal Harbour Village refrain from such
funding for the reasons provided below.
1. Although Dr. Clifford Bragdon's affidavit concluding
that North Miami Ordinance No. 888 will prevent injury to
certain plaintiffs appears to breach the spirit of the
cooperative effort by Bal Harbour and North Miami (to
objectively assess the noise impacts of the proposed
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amphitheater), we cannot conclude that a court would find
that the affidavit nullifies the Joint Resolution.
2. The Joint Resolution negotiated by the Bal Harbour
Village Council in the State mandated joint meeting with
the North Miami City Commission establishes Bal Harbour's
right to protect the interest of the citizens of Bal
Harbour through litigation if Bal harbour concludes that
the proposed amphitheater will adversely impact this
community. The rights to litigation established by this
resolution are your most powerful tool to assure that the
amphitheater construction will not begin until the noise
studies are successfully completed.
3. Completion of the noise studies will provide the
information necessary to assess the noise impacts, and if
appropriate, to demonstrate to a court that Bal, Harbour
will be an adversely affected party entitled to relief.
In our view, litigation at this time puts the court in a
position of rendering a decision without benefit of a
rigorous analysis of the potential impacts of".) the
proposed amphitheater and leaves too much to chance. An
effective analysis of the potential impacts of the
proposed amphitheater will take at least another one year
cycle to complete.
4. We believe that a court would conclude that funding M
the litigation filed by John Fletcher's clients would
breach Bal Harbour's agreement not to file or support
litigation against North Miami during the conduct of the
noise study. This breach would in turn release North
Miami from its agreement to complete the required steps
of the noise study prior to initiating construction.
Funding this litigation may also bar future litigation by
releasing North Miami from its agreement allowing Bal
Harbour to bring such litigation beyond the 30 day
statutory filing period.
5. Should it elect to fund the subject litigation, Bal
Harbour may also be prevented from later raising the
noise impact issues in its own lawsuit (if it institutes
one), by virtue of being privy to and /or directing the
Pichette litigation.
6. Funding the subject litigation introduces an
unpredictable instability to the legal rights of the two
municipalities and their relationship in addressing the
amphitheater. North Miami may seek a court order
pursuant to the Joint Resolution preventing Bal Harbour's
funding of the litigation, may seek damages (such as
future legal fees and expenses), may allege that funding
violates the notice requirements of Section 164.103,
Special Council Meeting 12/29/93
2
Florida Statutes, may choose to ignore the funding and
proceed with the noise study, or select any number of
other courses of action. Bal Harbour should be prepared
to incur legal fees in defense of a decision to fund
Pichette and must realize that North Miami will control
this agenda.
7. Bal Harbour would be funding a lawsuit over which it
has virtually no control. John Fletcher's obligations
are to his clients; to the extent his clients' interest
are in accord with Bal Harbour's, a favorable result for
John's Clients is a favorable result for Bal Harbour.
However, if Bal Harbour's interests diverge from John's
clients, such as in a possible settlement, John's
obligations remain with clients, notwithstanding the size
of Bal Harbour's contribution.
8. There is no assurance that John Fletcher will be
successful in his appeal of Judge Soloman's rulings that
his clients do not have standing. I have agreed tha:,t in
my own view, John should be successful in getting to
trial on at least some of the issues he has raised.
However, it is impossible to predict what the Appellate
Court will do under the circumstances. Moreover, even
if John is successful in getting to trial on the noise
impact issue, he will be before a Judge that has
consistently ruled against his clients. Inasmuchas North
Miami's counsel has stated that North Miami's defense in
Pichette does not apply to Bal Harbour, it may well be to
Bal Harbour's advantage to not appeal the vague
conclusions in the summary judgement on the noise impacts
rather than risk an unfavorable specific ruling in trial
after breaching the Joint Resolution and funding the
litigation.
For all of the reasons stated above, it is Holland &
Knight's recommendation that Bal Harbour continue the
course of action that the Council negotiated in February
and vigorously pursue the noise studies and all other
matters established in the Joint Resolution.
Notwithstanding.North Miami's apparent breach of faith,
it is our judgement that Bal Harbour has the greatest
opportunity to protect the interest of its citizens by
preserving the rights established in the Joint
Resolution, including the right to seek review in the
Courts.
With respect to North Miami's reservation (in the Joint
Resolution) of the right to contest Bat Harbour's
standing, we recommend that Bal Harbour require that
North Miami agree by resolution to waive this right and
that North Miami's contractor, Preforming Arts Management
Special Council Meeting 12/29/93 3
00
of North Miami, Inc., agree to be bound by the this
amended Joint Resolution. Whether or not North Miami
agrees to this modification, it remains Holland &
Knight's view that if the noise studies demonstrate that
the amphitheater will adversely impact Bal Harbour and
its residents, Florida law would grant Bal Harbour
Village standing before the circuit court to sue North
Miami to prevent construction of the proposed
amphitheater. This action would be predicated upon
Florida Statutory law (Section 163.3215) and the
contractual rights and obligations established by the
Joint Resolution (under which there should be no issue of
standing).
Holland & Knight understands that reasonable persons may
disagree with our recommendations. We further emphasize
that our client, Bal Harbour Village Council, 'must now
direct a course of action that you believe best serves
the interest of Bal Harbour. If you decide to "change
your prior course and fund the Pichette litigation,
Holland & Knight would be pleased to assist Bal Harbour
in any manner you deem appropriate.
It is important for you to understand that this letter is
written to you in our capacity as your legal advisor.
Our duty is to provide you with our rational analysis and
conclusions; we become your vigorous advocates only when
dealing with your adversaries.
Finally, we must emphasize that we believe that :John
Fletcher is without question one of the best land use
attorneys in Florida and that our recommendation is in no
way a reflection on his abilities. We are convinced that
had Bal Harbour filed litigation in February, we too
would be filing an appeal of Judge Soloman's dismissal of
our complaint.
We simply believe that on balance, Bal Harbour Village
will be better served by preserving its individual rights
under the Joint Resolution.
After reading his recommendations, Mr. Poole stated he has
discussed this matter with Dan Pearson, a former Judge of the Third
District Court of Appeals, and he is in complete concurrence. He
further explained Mr. Pearson assisted in some of the language of
the recommendations.
David Wolpin, City Attorney of North Miami, explained that this
matter is of utmost importance to his city. He further stated his
City values a good relationship with the Village of Bal Harbour,
and wishes to continue to work with the Village. He continued to
explain Dr. Bragdon will continue with the fourteen steps of the
Special Council Meeting 12/29/93
4
FM
noise study. He proceeded to explain the noise study has been
delayed by the different State and environmental agencies, in
approving all of the study work done on environmental matters. At
this time the City is waiting for approval from the Environmental
Protection Agency on the Federal level and State Department of
Environmental Protection. He further explained this approval is
necessary before proceeding with the Landfill closure design. Mr.
Wolpin restated their commitment is that the facility will not be
built unless it can be designed, operated and managed, in such a
way as not to create any adverse impact on the residential
communities. Mr. Wolpin stated he is not here to threaten, but to
request the Village's continued cooperation. He further stated the
City of North Miami will hold the Village to the commitments of
the binding resolution.
Richard Olsen, President- of the Bal Harbour Civic Association,
stated he has a transcript of the Pichette hearing. ',At which, Mr.
Wolpin stated until the City has designed, constructed and operated
the Performing Arts Amphitheater there is no way for the plaintiffs
to be able to show that there are traffic problems, noi.�.e or any
decrease in property values. Therefore, what Mr. Wolpin just told
the Council is the opposite. He further stated the Village has
been lured into a false sense of security. He continued to explain
he has reviewed all the documents from Dr. Hastings and the
Advisory Committee, and feels the approach taken with the City of
North Miami is inappropriate. He then proceeded to'.,explain Mr.
Wolpin's statement in regards to Dr. Dunn's affidavit, which was,
Dr. Dunn's affidavit is very whimpy and Dr. Dunn recognizes that
Dr. Bragdon is the one really doing the work and Dr. Dunn is
participating on an input and review type of participant. Mr.
Olsen stated that Mr. Wolpin has said nothing good about Bal
Harbour, except that as an outsider, Bal Harbour is interfering.
The City of North Miami will deal with the Village on a different
bases after the amphitheater is built.
Charles Browm, Chairman of Citizens Advisory Committee, reported
that the Committee met on December 28th. He then proceeded to name
the members of the Committee who attended that meeting. He
explained the question before the Committee was whether or not to
recommend to the Village Council to financially support the
litigation and services of attorney John Fletcher in his lawsuits
against the City of North Miami. He further explained the lawsuits
are being supported by Bay Harbor Island and others. Mr. Brown
stated is was the unanimous decision of the Committee to recommend
to the Bal Harbour Village Council to support attorney John
Fletcher to the fullest extent in his litigation appeals against
the City of North Miami. In addition, Mr. Brown stated in his
personal opinion the Village should immediately join with Bay
Harbor Islands against the City of North Miami in hiring John
Fletcher to continue the lawsuits and appeals. He further stated
he feels the Village should file a lawsuit against the City of
North Miami for violating the joint agreement, and to recover the
Special Council Meeting 12/29/93 5
66
$90,000 already expended on fees for the sound study and attorneys
Holland & Knight.
John Fletcher, 7600 Red Road, addressed the Council and explained
he is here to answer any questions about the litigation that is in
progress. He stated his purpose is to seek the assistance of the
Village in the financial arrangements for continuing the lawsuits
against the City of North Miami.
Dr. Hastings stated that Mr. Fletcher is listed as one the top
lawyers in the country in this type of litigation. He further
explained the appeals may possibly take a year, and Mr. Fletcher is
now out of funds. Dr. Hastings explained that Mr. Fletcher would
need $30,000 to continue the appeals. He then proceeded to refer
to the noise study and that only three steps have been completed.
Therefore, how could Dr_ Bragdon make an affidavit stating there
would be no adverse noise impacts, since the studies have not yet
been concluded. He further stated In his opinion the City of North
Miami has breached the Joint Resolution.
Dr. Stewart Harris stated he attended the meeting of the Citizens
Advisory Committee. He further explained those who attended were
very dismayed with the progress of the joint agreement, as well as
the way the agreement was written. He continued to explain there
is nothing in the joint agreement preventing the City of North
Miami from issuing a building permit. Dr. Harris stated in his
opinion Mr. Fletcher's lawsuit has more weight in preventing the
construction of the amphitheater, were the joint agreement seems
just a diversion. Therefore, in his opinion the Village should
support Mr. Fletcher in his appeals. He then proceeded to question
why wait until a building permit is issued to enter into ,a_ lawsuit.
He further stated in his opinion the Village must have an
enforceable agreement, which the City of North Miami must follow
certain standards.
Dr. Hastings stated in his °opinion the City of North Miami is just
stalling until Mr. Fletcher runs out of money. He further stated
the Village's attorney should be directed to work with Mr.
Fletcher. and bring suit against the City of North Miami.
Councilman Hirschl commented when BaI Harbour Village Council was
alerted about this problem, they progressed as gentle people. But,
by Dr. Bragdon's affidavit it implies clearly that the City of
North Miami has breached the joint agreement. He further stated he
feels the Village should not only be pursuing other attorneys, but
enter into a lawsuit against the City of North Miami for breaching
the joint agreement. He continued to explain it would be the court
who would decide if they breached the agreement. He then proceeded
to state it was disturbing as a Council member to choose, when he
would like to see both Mr. Fletcher and Mr.Poole to continue. The
decision the Council makes may be a mistake, but the efforts the
Council must pursue are very simple.
Special Council Meeting 12/29/93 6
P.M
LSMZd
Assistant Mayor Blank stated he wonders what this is all about. He
further stated in his opinion the Village has been given a snow
job. He continued to explain he has records going back to February
25th. On that date, he has a letter from Dr. Bragdon to David
Wolpin stating the study should be ready in three to four weeks.
He then proceeded to explain his conversation with David Wolpin, at
which time, he stated in his opinion the only way the dispute can
be settled is to build an entire enclosed amphitheater. Therefore,
he agrees with Councilman Hirschl the Village should proceed, and
that Mr. Poole work with Mr. Fletcher.
David Wolpin stated the City of North Miami has an obligation and
duty to make a reasonable use of their property. They do not
intend or will not cause an adverse affect upon Bal Harbour. He
further stated the City will continue to work on the noise, but
will hold the Village -to conditions of the Joint Resolution.
Assistant Mayor Blank questioned how long before the .noise study
will be completed. Mr. Wolpin replied steps one through three has
been completed and Dr. Dunn has received the report on the
completed steps. Mr. Wolpin concluded by asking the V.11age to
honor the Joint Resolution, or take this matter under further
advisement.
Councilman Hirschl requested Mr. Wolpin to address Dr. Bragdon's
affidavit. Mr. Wolpin explained the affidavit helped the City of
North Miami win a summary judgement against the second,lawsuit Mr.
Fletcher filed. He further explained affidavits were also
submitted on the issues of traffic and property valuation. While
Mr. Fletcher only submitted the affidavit from Dr. Dunn and he did
not contest the issue of traffic or property value.; He then
proceeded to quote from Dr. Bragdon's affidavit, in which he
explains Ordinance No. 888 sets forth the conditions, restrictions
and limitations, which would serve to protect the properties of the
plaintiffs.
Mr. Poole responded to the comments made by Mr. Wolpin. He stated
that section in Dr. Bragdon's affidavit was precisely the point Dan
Pearson and Chris Bellows focused on, as far as, if the court would
determine the Joint Resolution has been breached. He continued to
explain the argument the Council has just heard, from a legal point
of view, is the one the court would listen to. But, as a practical
matter it is a lot of double talk, and is offensive to the Council.
He explained that Dr. Bragdon states, in his affidavit, that after
competing three steps of fourteen there will not be any adverse
noise impacts. But, from a technical legal prospective Mr. Poole
stated he is not sure if that statement arises to a breach in the
agreement, which was the reason for the advice given the Council.
Councilman Hirschl referred to the letter that Holland & Knight
read into the record, in which they stated " with respect to North
Miami's reservation of the right to contest Bal Harbour's
standing ". He proceeded to ask Mr. Wolpin if the City of North
Special Council Meeting 12/29/93 7
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J o i n t R e s o l u t i o n . M r . W o l p i n r e p l i e d t h a t t h i s a n i t e m t o b e
c o n s i d e r e d , a n d r e c o m m e n d e d t o t h e C i t y C o u n c i l . I f t h e V i l l a g e
w o u l d d e t e r m i n e t o c o n t i n u e t o h o n o r t h e R e s o l u t i o n a n d n o t e n g a g e
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C o m p r e h e n s i v e P l a n . H e s u m m a r i z e d b y e x p l a i n i n g h i d c l i e n t s
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v o t e d o n a n y i s s u e p e r t a i n i n g t o t h i s m a t t e r .
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r e c o m m e n d H o l l a n d & K n i g h t , w h o s e b i l l s h a v e b e e n a b s o r b e n t . H e
t h e n p r o c e e d e d t o e x p l a i n t h e C o u n c i l h a s h a d n o o n e t o a d v i s e
t h e m . H e d o e s n o t w a n t t o g e t t h e c i t i z e n s o f B a l H a r b o u r i n t o a
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w i n . H e c o n t i n u e d t o s u g g e s t e d t h a t t h e V i l l a g e C o u n c i l s h o u l d
a p p o i n t a t h i r d p a r t y a s c o u n c i l t o a d v i s e t h e C o u n c i l h o w t o
p r o c e e d . H e i s v e r y c o n c e r n e d o n f u n d i n g M r . F l e t c h e r , a s w e l l a s
l e t t i n g M r . P o o l e p r o c e e d .
S p e c i a l C o u n c i l M e e t i n g 1 2 / 2 9 / 9 3 8
y)I
Mr. Weiss stated if the Council wants to receive a third opinion it
would be appropriate. He would recommend to the Council the third
party be a land use governmental attorney, who is use to dealing
with this type of issue. He further recommended the third party
meet with Mr. Fletcher and Mr. Poole to review documents, and to
give the Council a recommendation on how the Council should
proceed. He further stated the Council should also get an estimate
as to the cost.
Councilman Boggess stated he is concerned about the funds Mr.
Fletcher is requesting, which would pay for unpaid bills that were
incurred before he approached the Village. He further stated Bay
Harbor Islands pledged only $10,000. Councilman Boggess then
proceeded to question Mr. Fletcher about the fee he is requesting
from the Village. Mr. Fletcher replied the fee would be about
$30,000 to conclude the appeals. It would depend on the decision
from the Third District Court of Appeals, if he reappears before
Judge Soloman, if so an additional $35,000 in funding would be
necessary.
Steven Brown, Councilman Bay Harbor Islands, explained they have
pledged $10,000 in matching funds. He further explained he would
not like to see the litigation die for the lack of funds. He
continued to explain he would like the Bay Harbor Islands Council
to make further monetary decisions, for he feels Bal Harbour should
not be funding this alone. Mayor Spiegel questioned Councilman
Brown when his Council will be meeting. Councilman Brown replied
they met last night in a workshop session, and the regular meeting
will be held on January 10th. Councilman Hirschl questioned if
Councilman Brown made his Council aware of Mr. Fetcher's situation.
Councilman Brown replied he did, but no motion was' -made for
additional funding.
Councilman Boggess stated the bills received from Holland & Knight
are very sketchy. Mr. Poole submitted for the Council's review a
summary of his invoices. Mrs. Morris explained their bill reflects
the date, what action was taken, with whom, but it does not show
the time period spent only the billing amount. Mrs. Morris further
explained the total fees paid were $899000 including Dr. Dunn and
the hydraulic for approximately $14,000.
Mr. Noto stated the issue before the Village Council is a very
simple one, to terminate Holland & Knight, as recommended by the
Citizens Advisory Committee. He further stated the other issue is
for the Council to vote to fund Mr. Fletcher.
Mrs. Schell questioned where the funds have come from to pay the
bills to date. Mrs. Morris replied from the General Fund.
A motion was offered by Councilman Hirschl and seconded by
Councilman Boggess, for discussion, to underwrite Mr. Fletcher in
the amount of $27,000, and to direct Holland & Knight to enter suit
against the City of North Miami for declaratory judgement for the
Special Council Meeting 12/29/93 9
yz
breach of the agreement, and to sue to recoup the funds already
expended.
Assistant Mayor Blank questioned Mr. Poole if he has anything to
say on the motion. Mr. Poole replied he would follow the Council's
decision.
Assistant Mayor Blank stated that the motion contains several
points, and he has questions in reference to the cost of the
proposed suits. He then proceeded to suggested the motion be
amended only to fund Mr. Fletcher.
A motion was offered by Councilman Hirschl
Councilman Boggess to amend the motion, only
Fletcher in the amount of $27,000. The motior
vote as follows: Mayor ,Spiegel aye; Assistant
Councilman Boggess aye; Councilman Hirschl aye;
absent.
and seconded by
to underwrite Mr.
carried with the
Mayor Blank aye;
Councilman Taplin
Councilman Boggess stated the other issues Councilmal Hirschl
raised must be addressed and a decision made. He further stated
before he proceeds he would like to receive advice.
Mrs. Morris asked Mr. Poole what the cost would be to proceed with
a suit against the City of North Miami. Mr. Poole explained the
procedure that is necessary to sue another municipal >ity, and the
cost would approximately be $25,000. y
3. Mr. Noto. 290 Bal Bay Drive - Re: Haulover Area:
Mr. Noto explained the problems that have occurred in this area.
Since his appearance before the Council some improvements have been
made, but much more action is necessary. He proceeded to show
pictures to the Council of the area, and explained the improvements
that are still necessary. He further explained the residents in
this are worried about the ;graffiti, and illegally parked cars near
the bridge. He continued to explain a resident of his building was
recently mugged, and two cars were broken A nto within a 30 day
period. Mayor Spiegel stated they are pursuing ways to improve
maintenance and security in the area. She further explained the
Council has discussed the necessity of stronger lighting and water
needs.
S. Adjourn: There being no further business to come before
the Council, a motion was offered by Councilman Hirschl and
seconded by Assistant Mayor Blank to adjourn., The motion carried
unanimously, with Councilman Taplin absent, and the meeting
adjourned at 12:15 p.m. _
Ma or Est6lfe 1
Attest:
aanette Horton, Village Clerk
Special Council Meeting 12/29/93 10