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HomeMy Public PortalAbout1999-10-19 Regular Meeting165 COUNCIL MINUTES REGULAR MEETING - OCTOBER 19. 1999 The Regular Meeting of the Bal Harbour Village Council was held on Tuesday, October 19, 1999, at Bay Harbor Town Hall (9665 Bay Harbor Terrace). The meeting was called to order at 1:00 p.m. by Mayor Hirschl. Those present were: Also present: Mayor Andrew Hirsch! Assistant Mayor Daniel Tantleff Councilman James Boggess Councilman Peg E. Gorson Councilman Seymour Roth Alfred J. Treppeda, Village Manager Jeanette Horton, Village Clerk Ellisa Wright, Deputy Village Clerk Richard J. Weiss, Village Attorney Stephen Helfman, Village Attorney Dan Weiss, Village Attorney As a quorum was determined to be present, the meeting commenced. 2. Pledge of Allegiance: The Pledge of Allegiance was led by Ms. Wright. 3. An proval of Minutes: A motion was offered by Councilman Roth and seconded by Assistant Mayor Tantleff to approve the minutes of the September 15, 1999, Regular Council Meeting. The motion carried unanimously (5-0), and the minutes were approved as submitted. A motion was offered by Councilman Roth and seconded by Councilman Gorson to approve the minutes of the September 15, 1999, Second Budget Hearing. The motion carried unanimously (5-0), and the minutes were approved as submitted. q. Presentations - Officers of the Month: None s. Public Hearings: None 6. Ordinances Second Reading/Public Hearing: Mr. Weiss stated there has been a lawsuit filed against the Village seeking to challenge portions of the Village's Comprehensive Master Plan. The lawsuit was received on Thursday and the Village's attorneys are in the process of analyzing it. Mayor Hirschl stated due to the fact that this lawsuit challenges the Village's Comprehensive Plan, it is appropriate for the Council to ask the Village Attorneys to investigate the allegations that have been made and to report back in a certain amount of time so the Council can discuss options and the merits of the lawsuit. Based on this lawsuit, and the fact that there's a Regular Council Meeting 10/19/99 166 question regarding the Comprehensive Plan, and that the ordinance itself discusses the merits of this passage of zoning on the Comprehensive Plan, Mayor Hirsch) would like to make a motion to defer the second reading at this time. A motion was offered by Mayor Hirschl and seconded by Councilman Roth to defer the ordinance amending Chapter 21 of the Village Code. No vote was taken on this motion. Mayor Hirsch) thinks it's important that the Village Attorneys look at the merits of the lawsuit and that 30 days is an adequate amount of time for them to come back at a public hearing at the November Council meeting. Mr. Weiss stated depending on what their research shows, they may choose to report back on the merits of the lawsuit in an executive session, individually, or at a public hearing. An ordinance was read by title, by the Village Clerk, amending Chapter 21 of the Village Code. Mayor Hirsch) opened the public hearing. Assistant Mayor Tantleff stated at this point the Village Attorneys do not have answers to his questions and in order to protect the Village he agrees with the motion. Mayor Hirschl stated the lawsuit is a public document and copies can be provided to anyone desiring it. Mayor Hirsch) stated the allegations are of a serious nature and the Village needs to do its homework to ascertain if the allegations are legitimate. In all good faith, for all parties concerned, it would be beneficial to look into the matter. Cliff Schulman, Attorney representing AVA Development, stated a meeting was conducted yesterday (October 18, 1999, at 12:00 p.m.) which was advertised in the Neighbors Section on Sunday, October 17, 1999, to discuss an unknown subject matter. Mr. Schulman feels that because the subject matter was not disclosed as part of the notice, and the notice was a closed session of the Village Council, which they believe in good faith was to discuss either the litigation that is presently pending and/or its impact upon the AVA lawsuit and the Club lawsuit, they believe that the meeting was illegal, in the shade, and out of the sunshine, if it in any way discussed, directly or indirectly, any of the matters that are before them today through the ordinance. Mr. Schulman will request the transcripts that will disclose this matter was discussed and the notice itself is defective if it does not indicate the subject matter that was being discussed, which by State law it must. Therefore, the meeting that was conducted yesterday to discuss this ordinance or the previous or pending lawsuit, was defective and they will be entitled to the transcript. Mr. Schulman stated the Court told the Village to zone this property according to its previous finding that this Council, arbitrarily, capriciously and without proper evidence before it, denied the rezoning that was sought. It took the Court over a year to decide that. The Village then took it to the Third District Court of Appeal and lost. In November 1998. the Village was ordered by the Circuit Court to act and zone the property accordingly. Three to four months ago, the Council conducted a hearing on first reading and the Council has delayed it until now. That was in violation of the Court Order's Mandate. Now a lawsuit has been filed 10 months after the mandate was issued, which is merely allegations. The only lawsuit that has any meaning is the lawsuit where the Council was told and ordered by a Court to act. There is only one judicial fact, the lawsuit is meaningless and is words on paper, while a Court Order tells the Council to act and it should have much sooner. Mr. Schulman put the Council on notice that each day that the Council, having been put on notice, disregards the court order to act and Mr.Schulman will avail himself of any and all Regular Council Meeting 10/19/99 2 167 remedies that are available against the Council and the Village under the 1983 Federal Constitution which guarantees due process of law, the Florida Constitution, etc. Mr. Schulman stated they are willing and able to go forward and wants to incorporate into the record all of the prior proceedings and court orders. They have transcripts to go into the record and believe the Council has only one act today and that is not a continuance. The Council must abide by a lawful Court Order, otherwise they may conceivably be in contempt. The time to do the right thing is today and the right thing is not a continuance. Carter McDowell, representing the Bal Harbour Club, stated they would also urge the Council to move forward to rezone the property today. They think the Court Mandate is clear and a lawsuit that waited to be filed until two days ago is an intent to delay. Mr. Rudolph participated in the original hearings almost two years ago and has been very much aware of this process and could have easily filed on a timely basis if he had an issue. They believe the case has no merit and will be overturned. It also seeks an emergency injunction and any further delay may cause further damage to the Club. Every day of delay causes damage to the Club. By continuing today, the Council may allow the opportunity to have an emergency injunction which would result in further delay. The Club does not want further delays and believes the time has come to stop the adversarial proceedings and to see if they can come together to develop a plan for the Club and a developer for the Club in a positive and constructive way. They ask the Council sincerely to hold the hearing today and move forward to rezone the property. Any further delay or continuance will further damage the Club. Mayor Hirsch) stated the first page of the ordinance says that this land development is consistent with the applicable provisions of the Comprehensive Plan of the Village. Mayor Hirsch) has read the lawsuit and the allegations are of such a serious degree that the Council has to protect the integrity of the Village's citizens, who they feel possibly have been wronged based on the allegations of this lawsuit, and thinks a 30 day continuance to ask the Village Attorney if the facts of the document are true is good government. The Council is here to protect the citizens of this community and if this lawsuit has any merit whatsoever, they need to know it. The Council has a right to know it based on the citizens' needs to know. Potentially, the citizens were violated back in 1987 as the lawsuit allegedly states. So, the Council intends to find out if the allegations have merit and thinks 30 days is a reasonable amount of time. A motion was offered by Councilman Roth and seconded by Assistant Mayor Tantleff to continue the ordinance amending Chapter 21 of the Village Code for thirty days . The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff ave; Councilman Boggess aye; Councilman Gorson ave; Councilman Roth aye. An ordinance was read by title, by the Village Clerk, amending Chapter 10 of the Village Code. Mayor Hirschl opened the public hearing. There being no comments, Mayor Hirschl closed the public hearing. A motion was offered by Councilman Boggess and seconded by Councilman Roth to approve the ordinance amending Chapter 10 of the Village Code . The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff ave; Councilman Boggess aye; Councilman Gorson aye; Councilman Roth ave. Thus becoming: ORDINANCE NO. 445 Regular Council Meeting 10/19/99 3 16S AN ORDINANCE OF BAL HARBOUR VILLAGE, FLORIDA, AMENDING THE CODE BY AMENDING CHAPTER 10 "MARINE STRUCTURES, ACTIVITIES AND WAYS" AT ARTICLE II "USE OF PUBLIC BEACHES" BY AMENDING SECTION 10-26 "DEFINITIONS" TO INCLUDE THE DEFINITIONS OF PUBLIC BEACH, MOTORBOAT, PERSON, PERSONAL WATERCRAFT, OPERATE, IDLE SPEED NO WAKE, REGULATORY MARKER, VESSEL, AND EXCLUSION ZONE; AMENDING SECTION 10-27 "INTENT OF ARTICLE," CREATING SECTION 10-32 "PROHIBITIONS; MOTORBOAT RESTRICTED ZONES" BY ESTABLISHING A MOTORBOAT OR PERSONAL WATERCRAFT EXCLUSION ZONE IN THE VICINITY OF BAL HARBOUR BEACH BETWEEN 96111 STREET AND BAKERS HAULOVER CUT AND PROHIBITING MOTORBOAT OR PERSONAL WATERCRAFT OPERATION THEREON, AND CREATING SECTION 10-33 "POWER AND AUTHORITY OF VILLAGE COUNCIL" TO AUTHORIZE PROMULGATION OF RULES, REGULATIONS AND STANDARDS REGARDING THE OPERATION OF MOTORBOATS; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN CODE; PROVIDING FOR EFFECTIVE DATE. 7. Ordinances First Reading: An ordinance was read by title, by the Village Clerk, amending Chapter 13 of the Village Code. Mayor Hirschl opened the public hearing. Mr. Weiss explained there was a discussion about amending the pension ordinance to change the pension board, etc. and this was drafted by the pension attorneys. Mr. Weiss suggested that this ordinance be passed on first reading. There may be some comments from the PBA (Police Benevolent Association) between the first and second reading, but instead of going through the process twice, Mr. Weiss suggests passing it on first reading and if any discussion is needed it will be done on second reading. There being no additional comments, Mayor Hirschl closed the public hearing. A motion was offered by Councilman Boggess and seconded by Councilman Roth to approve the ordinance amending Chapter 13 of the Village Code . The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman Boggess aye; Councilman Gorson aye; Councilman Roth aye. Thus becoming: ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 13 OF THE VILLAGE OF BAL HARBOUR CODE OF ORDINANCES BY PROVIDING FOR INCLUSION BY REFERENCE OF COMPENSATION LIMITS PROVIDED IN THE INTERNAL REVENUE CODE; PROVIDING FOR COMPLIANCE WITH FEDERAL LAW FOR REEMPLOYMENT OF EMPLOYEES RETURNING FROM MILITARY SERVICE; PROVIDING FOR DELETION OF UNDEFINED TERMS SEVERANCE AND SETTLEMENT TIME; PROVIDING FOR THE DELETION OF ALL REFERENCES TO POLICE OFFICERS AND CHAPTER 185, FLORIDA STATUTES; PROVIDING FOR WORD CHANGE TO CONTINUOUS; PROVIDING FOR CLARIFICATION OF CALCULATION FORMULA FOR CONTINUOUS EMPLOYMENT; PROVIDING FOR CLARIFICATION OF DEADLINE FOR ELECTING OPTIONAL FORM OF BENEFIT; PROVIDING FOR CLARIFICATION OF RETIREMENT BOARD RESPONSIBILITY AS TO DISABILITY BENEFITS; PROVIDING FOR INCORPORATION BY REFERENCE OF STATE LAW AS TO FORFEITURE OF RETIREMENT BENEFITS; PROVIDING FOR COMPLIANCE WITH INTERNAL REVENUE CODE FOR VILLAGE PICK-UP OF EMPLOYEE CONTRIBUTIONS; PROVIDING FOR PAYMENT OF ADMINISTRATIVE EXPENSES BY THE RETIREMENT BOARD; PROVIDING FOR RETIREMENT BOARD RESPONSIBILITY FOR INVESTMENT POLICY AND MONEY MANAGERS; PROVIDING FOR BIENNIALLY DISTRIBUTION OF SUMMARY PLAN DESCRIPTIONS; PROVIDING FOR EXPANSION OF DEFINITION FOR FIDUCIARY RESPONSIBILITY; PROVIDING FOR DELETION OF SECTION OF HIGHLY PAID EMPLOYEE DISCRIMINATION ON TERMINATION AS INTERNAL REVENUE CODE EXEMPTS GOVERNMENTAL PLAN FROM REQUIREMENT; PROVIDING FOR DELETION OF REDUNDANT SECTION ON TIME LIMITS ON DEPOSITS; PROVIDING FOR INCLUSION OF APPEAI, PROCEDURE 1N NOTICE OF CLAIM DENIAL; PROVIDING FOR DELETION OF SECTION ON LEASED EMPLOYEES; PROVIDING FOR A SEPARATE POLICE OFFICER PENSION PLAN IN COMPLIANCE WITH CHAPTER 185, FLORIDA STATUTES; PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION AND PROVIDING FOR AN EFFECTIVE DATE. Regular Council Meeting 10/19/99 4 169 An ordinance was read by title, by the Village Clerk, amending Section 5.5-16 of the Village Code. Mayor Hirschl opened the public hearing. Mr. Weiss explained this ordinance addresses the concern the Council had regarding the Architectural Review Board and allows the Building Official, if he is dissatisfied with the decision of the Board, which has happened in the past, to bring that decision to the Council for an appeal. Currently, the Building Official does not have that ability. There being no additional comments, Mayor Hirsch) closed the public hearing. A motion was offered by Councilman Gorson and seconded by Councilman Roth to approve the ordinance amending Section 5.5-16 of the Village Code. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman Boggess aye; Councilman Gorson aye; Councilman Roth ave. Thus becoming: ORDINANCE NO. AN ORDINANCE OF BAL HARBOUR VILLAGE, FLORIDA, AMENDING SECTION 5.5-16 OF THE VILLAGE CODE; PROVIDING FOR AN APPEAL TO THE VILLAGE COUNCIL BY THE BUILDING OFFICIAL OF DECISIONS OF THE ARCHITECTURAL REVIEW BOARD; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE; AND PROVIDING FOR AN EFFECTIVE DATE. 8. Resolutions: None 9. Reports and Recommendations: A. MAYOR AND COUNCIL: Mayor Hirschl requested an update on the Surfside/Department of Transportation issue concerning 96th Street. Mr. Weiss reported the County doesn't want to get involved in the issue and will not do anything. The County stated it's not their business and it's an agreement with D.O.T. Mr. Weiss reported that D.O.T. is now looking at it. Mr. Weiss stated D.O.T. approved Surfside's request to close the road. Mr. Weiss believes the agreement says that the transportation plan that was agreed to will not be altered. The Village's position is that by eliminating those turns, they unilaterally altered that plan. The other party to the agreement is the Shops and they also have a right to pursue the violation. Mayor Hirschl stated the agreement was signed by Surfside, Bal Harbour, D.O.T., the County, and the Shops. Mr. Weiss stated the County is not interested in enforcing it. Mayor Hirsch) stated this impacts Bal Harbour's residents adversely and the Council is aggressively pursuing it. Mayor Hirschl stated there is a letter from Village Attorney Tony Cleveland requesting an Executive Session dealing with Munisport. The Munisport site has been removed from the Superfund designation and there are ratifications based on that removal. The Village has aggressively been involved in this for many years. Mr. Weiss requested on Mr. Cleveland's behalf an Executive Session dealing with the Village's Munisport litigation. Mr. Treppeda will contact the Council to schedule the Executive Session. B. VILLAGE ATTORNEY: Mr. Weiss requested an Executive Session dealing with the recent lawsuit that was filed by Mr. Rudolph. Mr. Weiss isn't sure it will be needed, but he wanted to request it in case it is. Mr. Treppeda will contact the Council to schedule the Executive Session if necessary. C. VILLAGE MANAGER: Regular Council Meeting 10/19/99 5 1'70 Purchase of Police Vehicles: Mr. Treppeda explained the Village replaces vehicles once they become five years old. Chief Freeman has requested to purchase a Ford Explorer and a Crown Victoria. The price from the state bid, including the cost to outfit the vehicles, is $50,742.00, which is budgeted. A motion was offered by Assistant Mayor Tantleff and seconded by Councilman Roth to approve $50,742.00 to purchase two police vehicles. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman Boggess aye; Councilman Gorson aye; Councilman Roth aye. Request for Expenditures of Forfeiture Funds — Chief Larry Freeman: Mr. Treppeda explained that Chief Freeman is requesting to spend forfeiture funds in the amount of $2,000.00 to cover expenses for the Police Department's 1999 Bicycle Rodeo. A motion was offered by Councilman Roth and seconded by Assistant Mayor Tantleff to approve up to $2,000.00 in police forfeiture funds. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman Boggess aye; Councilman Gorson aye; Councilman Roth ave. Replacement of Sewer Station Alarm: Mr. Treppeda explained the sewer station alarm system is the system that automatically phones the police dispatch desk and the Public Works Director when the sewer system overflows or has a potential problem. The current one has stopped working and the cost to replace it is $3,500.00, which would come out of the Sewer Fund. A motion was offered by Assistant Mayor Tantleff and seconded by Councilman Roth to approve up to $3,500.00 for the replacement of the sewer pump station remote monitoring system. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman Boggess aye; Councilman Gorson aye; Councilman Roth ave. Change Order #1 (Water Tank Demolition Proiect): Mr. Treppeda explained currently pipes are being re -valved prior to the tank removal. There is some other work that should be done while they are working on it such as removing some obsolete check valves and adding some sleeves that were not on the original drawings. The amount is $12,938.94, which would still leave $90,861.06 over and above what the bid came in. Assistant Mayor Tantleff requested that all change orders be justifiable. Mr. Treppeda assured that they were. A motion was offered by Councilman Roth and seconded by Councilman Boggess to approve $12,938.94 for Change Order #1 for the Water Tank Demolition Project. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff ave; Councilman Boggess aye; Councilman Gorson ave; Councilman Roth aye. Request for Approval of Additional Funds for Village Hall Roof Repair: Mr. Treppeda explained at the last Council meeting, the Council approved up to $15,000.00 for repairs to the Village Hall roof. Since that time, the Public Work Director's office roof caved in from the Hurricane and so an additional $9,000.00 is needed for roof work. In addition, at Village Hall a copper cap needed to be installed on the elevator tower to correct the leaking problem. The amount will come from contingency funds. A motion was offered by Councilman Boggess and seconded by Assistant Mayor Tantleff to approve up to $9,000.00 for roof repairs at Village Hall and at the office of the Director of Public Works. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman Boggess ave; Councilman Corson aye; Councilman Roth aye. Regular Council Meeting 10/19/99 6 171 Approval of Additional Engineering Fees for C.A.P. Engineering — Water Tank Demolition Project: Mr. Treppeda explained due to the extra work the Village is asking C.A.P. Engineering to do, they have exceeded the original proposal amount for contract administration. Mr. Treppeda is requesting $3,800.00 for additional Construction Administration (additional $2,300.00 for the contract administration for the water tank project and $1,500.00 to provide a special structural inspector to supervise the demolition of the water tank). A motion was offered by Councilman Roth and seconded by Councilman Gorson to approve $3,800.00 for additional construction administration and for a special structural inspector for the Water Tank Demolition Project to be provided by C.A.P. Engineering. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman BoRRess aye; Councilman Gorson aye; Councilman Roth aye. Resort Tax Committee Recommendations: Mr. Treppeda explained at the October 14, 1999, meeting of the Resort Tax Committee, the Committee recommended spending $250 of resort tax funds to film Project Newborn's Fashion Show. A motion was offered by Councilman Roth and seconded by Councilman Boggess to approve $250.00 to have a video made of the Fashion Show for Project Newborn. The motion carried with the vote as follows: Mayor Hirschl aye; Assistant Mayor Tantlejfaye; Councilman Boggess aye; Councilman Gorson aye; Councilman Roth aye. Councilman Boggess stated the video will be used for publicity purposes in South America, etc. 11. Other Business: Mayor Hirschl thanked Bay Harbor Islands for allowing Bal Harbour to use their Council Chambers. Mr. Treppeda stated the County has allowed the Village to participate in their Employee Assistance Plan. The Village would need to enter into an agreement, which he will have the Village Attorneys office review, which does not require any money other than if the Village utilizes the services for mental health, substance abuse, and relationship counseling. There is a $1,000.00 retainer fee, which the Village would get back if the services are not used. Mayor Hirschl requested the Village Attorney review it prior to discussion. 12. Adjourn: There being no further business to come before the Council, a motion was offered by Councilman BoRRess and seconded by Councilman Roth to adjourn. The motion carried unanimously (.5-0), and the meeting adjourned at 1:35 p.m. oe Mayor Andrew R. Hirschl eanette Horton, CMC/AAE/CLO Village Clerk /elw Regular Council Meeting 10/19/99 7