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
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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.
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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.
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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
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