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HomeMy Public PortalAbout1999-11-08 Special Meeting184 COUNCIL MINUTES SPECIAL MEETING - NOVEMBER 8, 1999 A Special Meeting of the Bal Harbour Village Council was held on Monday, November 8, 1999, in the Council Chambers of Bay Harbor Islands Town Hall (9665 Bay Harbor Terrace). The meeting was called to order at 12:07 p.m. by Mayor Hirsch!. Those present were: Also present: Mayor Andrew Hirsch! Assistant Mayor Daniel Tantleff Councilman James Boggess Councilman Seymour "Sy" Roth Alfred J. Treppeda, Village Manager Jeanette Horton, Village Clerk Richard J. Weiss, Village Attorney Dan Weiss, Village Attorney Absent: Councilman Peg E. Gorson As a quorum was determined to be present, the meeting commenced. 2. Pledge of Allegiance: The Pledge of Allegiance was led by the Council. 3. Discussion of Motion to Intervene f. Issues Related to Rudolph vs. Bal Harbour Village: Richard Weiss requested an Executive Session and stated the Village Attorneys may meet with Council members individually instead. Mr. Weiss explained they wanted to bring the Council up to date on what has happened in the lawsuit. This is not being done in executive session because executive sessions are limited by the rules of the Florida Legislature to settlement discussions and costs of litigation. They believe this falls outside of those parameters. They also need direction from the Council as to a Motion to Intervene that has been filed to add additional parties into the lawsuit. Dan Weiss explained the Rudolph lawsuit was filed during the second week of October. Since that time, they have obtained the concurrence of opposing counsel, Mr. Skip Taylor, to delay the Village's filing of its answer or response. The purpose of that was to engage in what the Council wanted, which is to determine the validity of the facts alleged in the complaint and what the legal consequences are through an analysis of the statutes alleged in the complaint. Mr. Taylor has set the depositions. At the depositions, the Village would be entitled to ask any additional questions of Councilman Boggess or Richard Olsen, who are the deponents that are scheduled to have sworn depositions taken and questions asked to determine the validity of the allegations of the complaint. Since that time, the depositions have been re -scheduled once for the Village's convenience. At that point, there was a Motion for Protective Order, which was filed on behalf of the Club, to ask the Court not to allow the depositions to go forward until their Motions to Intervene were heard. The Court granted that temporary relief to wait on the depositions until the Judge has the opportunity to hear the Motions to Intervene. Since that time, there have been separate Council Special Meeting 11/08/99 1 1.5 Motions to Intervene filed on behalf of the Club and AVA. They have all alleged that they have an interest in the subject property and, that under the intervention rule, they should be entitled to participate as parties. Essentially, the rule goveming interventions says that any person or any party who claims any interest in the outcome of litigation is entitled to petition the court for the authorization to participate as a party in the litigation. Tomorrow morning there are hearings scheduled on both the Motions to Intervene. The Council should be aware, to tell the Village Attorneys what to do with regard to the Motion to Intervene, that the Court has a wide array of discretion and that only in the presence of an abusive discretion will a Court be overturned either for granting a Motion to Intervene or for denying a Motion to Intervene. It's very typical for a party who owns property to be permitted to intervene in a lawsuit. Also, even a less direct interest in property can be a basis for a Motion to Intervene. Parties, such as the Village, might well want somebody else to come in on its side and intervene and support its position. That's what AVA Developments and the Bal Harbour Club are seeking to do. They are seeking to intervene as party defendants. Mayor Hirsch) questioned how would a private club, which has no basis in this lawsuit, get intervention. Dan Weiss stated that the Club has told the Court in their Motion to Intervene, along with the exhibits attached, that there's a history of the past couple of years of their desire to re -zone and what the impact has been of the Master Plan, or what the impact would be of a certain outcome of this lawsuit to their claim of entitlement to re -zone. They are correct in their view, as entitlement to re -zone property could well be impacted upon determination by the Court that the underlying Master Plan was invalid. They would probably like to show the Court why the Court should not overturn the Master Plan, and as a consequence of that, they want to protect whatever victory they have already obtained in court. Dan Weiss stated they have conducted substantial research and, preliminarily, it appears there's validity to a number of the factual allegations and legal conclusions. There's a specific provision of Florida statutes regarding circumstances under which Council members should not be voting and should also make a disclosure with regard to direct interest in the outcome. It's not entirely clear whether the same analysis applies to both persons who are involved, or whose votes are questioned in the litigation, and they are not prepared to tell the Council today and give a final conclusion of what the law requires. They want to apprise the Council of the fact that there are defenses available that can be alleged in this suit and which may be threshold matters that could be put before the Court to say the Court should never reach the merits of this matter. These are defenses that could be alleged by AVA and the Club if they are permitted to come in, even if the Village determines that they wanted to waive those defenses. Richard Weiss stated they are waiting to hear what is said at the depositions before they are able to come to any final conclusions as to specific factual allegations. Councilman Boggess questioned if the Court cares what the Village feels about this and whether it intervenes or not. Dan Weiss stated the Court will look at the allegations made in the Motion to Intervene and will use its own discretion. The Village Attorneys indication was at the time of the Motion of Protective Order, that the Court was prepared to grant intervention right on the spot. They expect that may well be the outcome even if the Village vigorously opposes the intervention. Council Special Meeting 11/08/99 2 186 Councilman Roth questioned if the Village can ask the Court for direction because the Village doesn't want to have liability on either side. Richard Weiss stated the Court will make the determination as to the intervention. At the hearing tomorrow, the Village has three choices. One choice is to say the Village has no opposition to the intervention, the second choice is to say the Village has no position on this and leave it up to the Court, and third choice is to oppose the intervention based upon some legal research that the Attorneys have done. The Village Attorneys think it's likely that intervention will be granted notwithstanding the Village's arguments. By making the determination, the Court will tell the Village what can be allotted for the lawsuit. Assistant Mayor Tantleff doesn't know why the plan was changed since Bartholomew and believes there's a reason why there are condos on each side and this open piece of land. Assistant Mayor Tantleff questioned why the Council can't know that the change was done inappropriately, or to say the Council doesn't want the Master Plan as it is because it's not how the original vision was. Richard Weiss stated the Village would have to go through a Master Plan amendment process. Assistant Mayor Tantleff questioned why the Village doesn't just do that. Richard Weiss stated the Village can. Assistant Mayor Tantleff believes that the property was supposed to be low, and if it was supposed to be oceanfront, it would have been oceanfront from the beginning. Mayor Hirsch) stated assuming the depositions corroborate what the minutes reflect, that there was no announcement of compromise by the two individuals discussed and they did not disclose potential financial personal involvement in the item they voted on, it's obvious to this Council that the Comprehensive Plan is tainted. Richard Weiss stated if the Village Attorneys petition the State, their position would be that the Village believes the planning on that property is incorrect. It should not have been changed, notwithstanding the motivation prior to its change. Councilman Boggess stated that at the time the Comprehensive Plan was changed, the Council did what the Consulting Engineer and Village Manager recommended. There was no thought of the zoning change at that time. Councilman Boggess stated it was presented to the Council that there was a covenant that the Club would be in existence for 20 years. After that, the covenant expired. So, the Council doesn't know if Bartholomew intended for the Club to stay there forever or not. Mayor Hirschl stated the Comprehensive Plan was changed in 1987, right or wrong, and as a result of that change a developer wants to build a 40 story high-rise. Mayor Hirschl stated the Court needs to know the Council wants to take a direction potentially and that the Court has to allow the process to occur as opposed to threatening the Council with sanctions. Councilman Boggess left the meeting at this time. A motion was offered by Mayor Hirschl and seconded by Assistant Mayor Tantleff to direct the Village Attorney to bring back procedures and appropriate documents in order to amend the Comprehensive Plan to go back to the pre-1987 designation for the Club property. The motion carried with vote as follows: Mayor Hirschl aye; Assistant Mayor Tantleff aye; Councilman Boggess absent; Councilman Gorson absent; Councilman Roth aye. Council Special Meeting 11/08/99 3 187 Richard Weiss requested direction on the intervention. Mr. Weiss thinks its probable that the intervention will be granted. Mayor Hirsch! questioned if it weakens the Village's case by not responding. Mr. Weiss responded not at all. It was the consensus of the Council to do nothing and stand mute. 4. Other Business: None 5. Adjourn: There being no further business to come before the Council, a motion was offered by Assistant Mayor Tantleff and seconded by Councilman Roth to adjourn. The motion carried unanimously (3-0), with Councilman Boggess and Councilman Gorson absent, and the meeting adjourned at 12:40 p.m. Attest: nette Horton, C/ ' E/CLO illage Clerk /elw Council Special Meeting 11/08/99 4