HomeMy Public PortalAbout1999-11-16 Regular Council Meeting1
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8 November 16, 1999
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BAL HARBOUR VILLAGE
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COUNCIL MEETING
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H. ALLEN BENOWITZ & ASSOCIATES, INC.
Dade * Broward * Palm Beach
(305) 373-9997
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MS. HORTON: At this time, do you want me
to read the letter from Mr. Boggess? Mr. Weiss
did.
MAYOR HIRSCHL: Sure.
MR. WEISS: I don't know what it says,
6 but it does deal with this.
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MS. HORTON: "As you know I have served
8 on the village council since April 1987. During
9 this time, I have,, participated in some of the
10 most difficult and important votes of the
11 village council. I have been meticulous about
12 not participating in voting where I had a
13 conflict of interest and feel very comfortable
14 that I lived up to both the letter and spirit of
15 the voting conflict laws. I have done this
16 because I was required to do so by. law, but also
17 because it is the way I conduct myself
18 professionally and in business.
19 After much soul searching I have
20 determined that I will not participate in votes
21 relating to the pending Rudolf lawsuit or the
22 rezoning of the Bal Harbour Beach Club property.
23 I have made this decision as I always make
24 decisions as a councilmember because I believe
25 it is in the best interest of the village. At
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1 the time that I voted to approve the 1988
2 amendment to the comprehensive plan the matter
3 was frankly routine. It was recommended by both
g our outside consultants and by our staff.
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Included in that vote were millions of dollars
of capital improvements, beach restoration and a
Beach Club amendment among others.
Even in retrospect I feel comfortable
9 about my vote on,these amendments. However,
10 from the discussion at the last council meeting,
11 it is obvious to me that, even though I believe
12 that the Court will rule that my vote was
13 proper, my fellow councilmembers will continue
14 to feel that my participation in the process in
15 the upcoming votes related to the club taint the
16 process.
Perhaps this an issue more perceptive
17 rather than reality.
18 In order to avoid perceived taint on
19 votes relating to the beach club property,'and
20 in particular, today's vote, I will not attend
21 today's meeting. My absence should not be
22 construed as my having any second thoughts or
23 concern about my previous votes, but as an
24 indication of my respect for the other
25 councilmembers and their views."
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MAYOR HIRSCHL: Thank you. We have a
second reading of AN ordinance, a public
hearing.
Jeanette, please.
MS. HORTON: "An ordinance of the Village
OF Bal Harbour, Florida, providing for rezoning
from the "PC", private club zoning district to
the "OF", ocean front zoning district of the
"beach club site",shown as Tract "A" on the
plat of "ocean front section of Bay Harbour"
recorded in Plat Book 44, at Page 27, of the
public records of Dade County, Florida, located
at 10201 Collins Avenue in Bal Harbour; amending
Section 21-78 "district map", Section 21-147
"boundary designation," and Section 21-282
"boundary designation" of Chapter 21 "zoning"
of the Bal Harbour Village code to reflect the
rezoning of the property as described above;
providing severability; providing an effective
date.
MAYOR HIRSCHL: Okay. The public hearing
is open.
MR. WEISS: If we could have anybody
testifying on this matter please be sworn in.
MAYOR HIRSCHL: Okay. Do that now?
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MR. WEISS: Yes.
MAYOR HIRSCHL: Anybody who plans on
testifying during this time period, please
rise. We are going to swear you in. As this is
a quasi-judicial meeting, if you plan on
speaking, and even if you don't, I recommend you
stand so that you may be sworn in.
MS. HORTON: Raise your right hand,
please. Do you solemnly swear to tell the
truth, so help you God?
GROUP RESPONSE: I do.
MAYOR HIRSCHL: Okay. The applicant,
would you like to appear first? Carter
McDowell.
MR. McDOWELL: Good afternoon. For the
record, my name is Carter McDowell, representing
the club.
Certainly I would like to urge you to
move forward to comply with the court mandate.
This project this process was deferred for 30
days at your last meeting at the request of the
village council, and you asked your city
attorney to investigate the circumstance. And I
would like to defer my meeting until -- my
remarks until I have an opportunity to hear what
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the village attorney may have to report to you
about this so that I have the ability to address
any comments he may have made.
Again, we believe the court mandate is
clear. The Court found that the validity of the
application was not upheld by the record. The
record is now closed. We would ask that you
move forward. I would again reserve some right
of time to speak after others speak in case
there are other issues that are raised.
I have in writing objected to the
introduction of new evidence into this matter as
a potential -- I believe that the Rudolf versus
Bal Harbour case is a collateral attack on the
Court's decision, and, therefore, continue my
objection, which I got into the village attorney
in writing, to that testimony, certainly to the
extent that it's testimony introduced into the
record, we would like an opportunity to object.
MAYOR HIRSCHL: Sure.
MR. McDOWELL: Thank you very much. We
ask you to move forward so that hopefully we can
find together a consensus about the
redevelopment of the property.
MAYOR HIRSCHL: Thank you.
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Take your time.
MR. SCHULMAN: Mr. Mayor, Members of the
Council. Cliff Schulman, 1221 Brickell Avenue.
4 This comes from representing developers and
5 getting kicked around by city commissions.
6 MAYOR HIRSCHL: Cheap shot.
7 MR. SCHULMAN: Yes, I know, but I'm
8 trying to get sympathy. I will take whatever I
9 get.
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I'm representing Ava Development. I will
11 reiterate and not reiterate our agreement with
12 Mr. McDowell's statements on behalf of Ava. The
13 only thing I would add for purposes of the
14 record is portions of the circuit court opinion,
15 which concluded, in addition to being consistent
16 with the comprehensive master plan, we find the
17 evidence also established the rezoning is
18 I compatible with existing development and that it
19 J meets the necessary concurrency requirements.
20 The Court indicated that the petitioners
21 met their burden of proving the rezoning was
22 warranted (inaudible) to the council to
23 demonstrate that maintaining the existing zoning
24 classification with respect to the property
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accomplished a legitimate public purpose.
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1 The council had the burden of showing the
2 refusal to rezone the property was not
3 arbitrary, discriminatory or unreasonable. We
4 found that the council failed to meet that
5 burden denying the petitioners application to
6 rezone. Therefore, the Court ordered subsequent
7 proceedings consistent with its opinion. And
8 that mandate was issued in November of 1998.
9 And now is the time that we believe you
10 should do the right thing, and that is follow
11 the court directive. Basically, have the
12 rezoning and then deal with the issues of what
13 actually be designed on that site through the
14 design review process in your normal course of
15 affairs in the city as all other buildings on
16 the ocean site have developed.
17 We agree with Mr. McDowell that evidence
18 I today is irrelevant, unnecessary and not
19 ' warranted by the Court's opinion.
20 I We are here to answer any questions you
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22 the city attorney deems appropriate.
23 And with that, I will make the shortest
24 speech of my career.
25 Thank you, Mr. Mayor.
H. ALLEN BENOWITZ & ASSOCIATES, INC.
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19 hearing, we have done quite a bit of work.' But
20 because of fact that the discovery schedule on
21 the Rudolf lawsuit was curtailed by the judge,
22 some of the information that we needed to
23 present you with a complete report we were not
24 able to get.
25 We did do research into the public
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MAYOR HIRSCHL: Thank you, Mr. Schulman.
Take the fake cast off now.
MR. SCHULMAN: I wish I could.
MAYOR HIRSCHL: Mr. Weiss, do you want
to --
MR. WEISS: If the council feels it
appropriate, we would like to give you the
results of the task that you gave us at the last
public hearing. ti
MAYOR HIRSCHL: Yes.
MR. WEISS: And that was to go to look
into the allegations contained in the complaint
and to try to advise you with regard to those
allegations.
We have spoken with you all privately
about the lawsuit itself. But in terms of our
factual investigation as to the allegations in
the complaint, as they may relate to this zoning
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1 records. And we are passing out to you a
2 document which contains three documents, which
3 is, number one, an ordinance, number 325,
4 adopting the comprehensive plan of December Eth
5 of 1988, council minutes of that date showing
6 the voting on the -- who voted on the ordinance,
7 and then subsequent reading on June 22nd of
8 1998, also showing the voting on the ordinance.
9 And we'll pass those out and ask the clerk to
10 include a copy in the record.
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And with respect to the allegations in
the complaint, the gist of the allegations in
the complaint are that members of the council
voted on the comprehensive plan when they had a
legal conflict under Florida law.
In order to do that analysis, there are
at least two pieces of information that are
18 necessary. The first part is that they voted.
19 And the information that we had been able to
20 glean from the public records would indicate
21 that those allegations in the complaint are
22 true.
23 With respect to the interest that the
24 individual councilmembers had in the club
25 property, unfortunately we are not able to give
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1 you any feedback with regard to those
2 allegations because of the fact that we do not
3 have that information. We are not privy to any
4 of the records of the Bal Harbour Club.
5 What we had anticipated doing in the
6 depositions, which were scheduled prior to the
7 motion for intervention, were to ask Messrs.
8 Olson and Boggess as to what interest they had
9 in the club, andythat then we would have been
10 able to present to you today.
11 So at this point, all we are able to
12 present to you is the fact that they did vote on
13 the matters. But as to the other portion of our
14 analysis, unfortunately we were unable to do
15 that because of the fact that we are unable to
16 take the deposition and do the discovery in the
17 lawsuit that we had anticipated doing.
18 At this point what I would suggest that
19 you do is to hear from any objectors. First I
20 would be happy to answer any questions. But I
21 would suggest you hear from any objectors to the
22 application, allow the applicants to respond to
23 either what I have said or to what the objectors
24 say, and then have a discussion among the
25 council as to the merits of the matter before
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you.
2 MAYOR HIRSCHL: Okay. Any questions of
3 the attorneys at this time?
4 Do we have an audiotape of the meeting?
5 MR. WEISS: This meeting?
6 MAYOR HIRSCHL: No, of the meeting of
7 1987 and 1988.
8 MR. WEISS: For some reason the
9 audiotapes, we tied to find those. The
10 audiotapes have been destroyed of these
11 meetings, so we were unable to listen to those
12 Other information that we looked for is
13 what we were unable to find. We tried to get a
14 copy of the original -- the comprehensive plans,
15 the prior comprehensive plans, and those also
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are not in the village hall records. We tried
17 to get in touch with Litavichie (phonetic) and
18 Orange that worked with us on that, and others,
19 and nobody seems to have a copy of the
20 comprehensive plans and the amendments and so
21 forth, so we are severely limited. We did a lot
22 of looking and a lot of phone calls, but did not
23 have much luck in terms of getting other
24 documents.
25 ASSISTANT MAYOR TANTLEFF: Do any of
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these documents -
2 UNIDENTIFIED SPEAKER: Can't hear you.
3 ASSISTANT MAYOR TANTLEFF: Do any of
4 these documents show the change that was made to
5 the master plan?
6 MR. D. WEISS: None of the documents --
7 none of the documents specifically show. You
8 have the ordinance, which actually enacted the
9 changes that wereymade at that time, and within
10 the body of the ordinance, and that is your
11 Exhibit 1, it's indicated what amendments there
12 are to the master plan. With regard to the
13 textual change that relates to the club, that
14 doesn't specifically appear on the face of the
15 ordinance.
16 We have been able to ascertain that the
17 allegation of the complaint with regard to the
18 text of the ordinance is accurate. And if you
19 like, I can read that into the record at this
20 time.
21 MAYOR HIRSCHL: Please.
22 MR. D. WEISS: That consisted of two
23 sentences as follows, two sentences: The 5.5
24 acre club facility located between Collins
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Avenue and the beach front could be redeveloped
H. ALLEN BENOWITZ & ASSOCIATES, INC.
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as high density, multifamily or hotel in
accordance with the village code and the plat
and the zoning regulations. Although
redevelopment is not anticipated in the near
5 future, it could ultimately occur.
6 MAYOR HIRSCHL: That's the substance of
7 the body of the change in that comp plan in '87
8 '88?
9 MR. D. WEISS: No, it's not. That's the
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10 portion of changes in the comp plan that related
11 to the Beach Club. The changes that were made
12 are indicated as listed in the ordinance number
13 325 on page two. They are enumerated near the
14 top of the page.
15 MAYOR HIRSCHL: Okay. We would like to
-16 hear from the public at this point. Is there
17 anybody who would like to speak to us? Besides
18 you.
19 MR. RUDOLF: I'm not going to limp up.
20 My name is Douglas Rudolf, 212 Bal Bay
21 Drive. I am the Rudolf that you keep hearing
22 about in this infamous Rudolf lawsuit.
23 I think it's important, not only for you,
24 but for the people that are here today, the
25 citizens that we serve, the real reason that we
H. ALLEN BENOWITZ & ASSOCIATES, INC.
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1 are here, for me to go through a few of the
2 facts about this. When I'm through, my attorney
3 will continue to press forward and reinforce
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some of the issues of law that we think are
5 important.
6 But I think before I start, it's very
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important that even though it keeps being called
8 the Rudolf lawsuit, I want to make the point
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that I represent many, many residents for four
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years now in this ongoing situation, the battle
of right and the battle to do what is right for
the residents that live in the community.
Many of them unfortunately can't be here
14 on a Tuesday afternoon at three o'clock. Many
15 of them work. Many of them called me and other
16 people to tell us that they couldn't be here.
17 Many of them are picking up their kids at school
18 at three o'clock. There are a number of
19 things.
20 I'm sure a show of hands of the people
21 that are here would indicate this is far from
22 just a Rudolf lawsuit. Sometimes somebody has
23 to carry the ball. Sometimes somebody is
24 designated to be the person to take the action
25 on behalf of many others. I'm sure you will
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1 hear from a few others today as well.
2 First and foremost and most importantly,
3 though, I would like to go back through some of
4 the facts that lay into what we are here to
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discuss today and why we believe that this is
such a critical issue for the council to
consider.
The purpose of our master plan, or any
master plan for any city, is to lay out a plan
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10 that represents what the designers and planners
11 and the councils at those times felt was in the
12 best interest of the residents of that city.
13 And that is exactly what happened in Bal
14 Harbour in 1944. There was a group that was
15 hired to go out. Their names -- we'll refer to
`16 them as the Bartholomew people. But a famous
17 planner was put in place who was asked to come
18 up with a plan -for the city. They did so. And
19 one of the most integral and important parts of
20 that plan was what we have commonly referred to
21 over many meetings in here is the spine, the
22 green spine, the open space of the city.
23 We are here to talk about the beach
24 parcel today. But that's really not the only
25 way to look at this because if you stand at the
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1 beach parcel and look across the entire expanse
2 of this Village of Bal Harbour, all the way to
3 the Yacht Club, you will see that this was
4 designed as one major open space area, low-rise
5 with an intense -- intention of keeping not only
6 development low, but keeping open space, open
7 air, a breezeway, a place for the people of this
8 community to enjoy their city.
9 After long. planning, that's what was put
10 into place. You are just as welcome to stand
11 over at the yacht basin and look back through
12 the other way.
13 Now, when this was done in 1944, the
14 planners knew about high-rises. They knew about
15 big buildings. As a matter of fact,
16 interestingly enough, every other piece of
17 property on the beach, except the Beach Club
18 property, was zoned for high-rise. In 1944 it
19 was very clear, that's what was intended. It
20 was just as clear that it was intended that this
21 double -sized parcel that was the backbone of our
22 community not be zoned that way. And that if a
23 private club didn't work there, they could put
24 some low-rise houses, not a high-rise. The
25 reason for that was to maintain this open space
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1 corridor.
2 This was entered into the record at other
3 meetings, but I thought it was important to go
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over this again because this is critical to the
5 design of this city. It stood that way for 40
6 years or more, until in 1979 the State of
7 Florida mandated that cities like Bal Harbour
8 adopt what is called a master plan.
9 Well, in 1979, our city council did the
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10 work with their planners and came back and said,
11 we like that plan, that's what was intended,
12 that's the way we want our village to be, it's
13 going to stay that way. Great. 1979, master
14 plan put into place.
15 Now, every seven years the state says you
16 have to update that. So seven years later, work
17 was started to review that master plan.
18 Interestingly enough, the only major change in
19 that plan was that that ocean front parcel, the
20 contemplation of what it was going to be was
21 changed. It was no longer meant to be the open
22 space corridor for the residents.
23 No, this was going to be changed to allow
24 it at some point in the future, we don't know
25 when, to become a large high-rise, thereby
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1 cutting off the entire open space corridor for
2 the citizens and changing the view that this
3 village had from the beginning.
4 Now, as we have pointed out in our
5 lawsuit, and I want to tell you sometimes you
6 have to do things to bring the proper things to
7 the proper attention of the proper people in the
8 proper way, as opposed to things that are done
9 improperly, like changing a master plan in a way
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10 that is against the laws of the State of
11 Florida, which I think are laid out clearly in
12 our lawsuit, and I think time will tell.
13 We are very confident because I have done
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homework on this for a long, long time. And I
can tell you that while you all may not have
come up with the answers yet, you will. And the
17 other side knows it. Because the facts are the
18 facts. They are undeniable, irrefutable, and
19 unchangeable, thank goodness, in spite of the
20 fact we are missing master plans, missing tapes
21 and all that stuff, the facts are the facts. It
22 was done a certain way. It will be borne out.
23 That is why the people that are here today, they
24 don't want to talk about that.
25 Now, I can tell you that I did a lot of
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1 research on this. It's very clear. Very
2 clear. And what I'm here to really say to you
3 today is that as I researched this because of my
4 concern about what be built in this city and
5 what not be built and the way things are done,
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you know, we all have to play by a set of rules,
7 and if this council in its ultimate wisdom
8 decides on something, we live by it. We elected
9 you people. We a.preciate what you do. We are
10 here to say, you go through the process, you do
11 it right, God bless you, we back you, we live
12 with it. It may not be what I want or it may
13 not be what my fellow citizens want, it may not
14 be what the developers want, or the owners of
15 the Beach Club, but if it's the right way, that
16 is the way it is.
17 Now, the problem is is that with or
18 without the Rudolf lawsuit, it really doesn't
19 matter because it doesn't change the facts.
20 When I'm gone, if I move out of Bal Harbour
21 tomorrow, the facts will remain, that master
22 plan that has been put into place will be viewed
23 and seen as being done improperly.
24 I'm not here to say anything about
25 anybody who did it because who knows what the
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7 and confidence that you will do the right thing
8 and this is the opportunity to do it. If the
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reasons were. Maybe they didn't know the law.
The facts are the facts. It's either right or
it's wrong. We are here to say to you today
this is your chance to stand up for your
citizens. People elect officials to represent
their interests properly. We have faith in you
9 facts are wrong and we are wrong about the
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10 facts, and that master plan was done correctly,
11 that's up to you. If it wasn't, and we maintain
12 it wasn't, and we know you will find it wasn't,
13 then everything it's based upon and everything
14 that comes after it is wrong as well and tainted
15 and illegal.
16 I appreciate your time. I hope I have
17 shed a little light on this for the people that
18 are out there that don't have the opportunity to
19 work as hard on this as I do. When you know the
20 facts, it makes a difference.
21 At this point, I you would like to turn
22 j it over to my attorney who will take you through
23 the other law facts. I appreciate your time.
24 MR. SCHULMAN: Mr. Mayor, Cliff Schulman,
25 again. I believe this is the place (inaudible)
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1 and I respectfully request the ability to ask
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Mr. Rudolf a few questions.
MAYOR HIRSCHL: Yes, you may.
MR. RUDOLF: Have I been subpoenaed?
MR. SCHULMAN: You are under oath,
right?
7 Doug, when did you move into the Village
8 of Bal Harbour?
9 MR. RUDOLF: I'm not very good with
10 dates. It's probably been four years.
11 MR. SCHULMAN: Four years?
12 MR. RUDOLF: From now.
13 MR. SCHULMAN: And the master plan
14 amendment that took place that you say, and so
15 did this new provision, when did that take
.16 place?
17 MR. RUDOLF: I believe it was in '87.
18 MR. SCHULMAN: You weren't a resident of
19 the Village at that time?
20 MR. RUDOLF: That is correct.
21 MR. SCHULMAN: Now, you appeared at a
22 series of hearings involving this zoning
23 application in 1998, correct?
24 MR. RUDOLF: Um -hum.
25 MR. SCHULMAN: It may be 1997, I'm not
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sure. Did -
2 MR. RUDOLF: I will take your word for
3 it. I'm not good with dates.
4 MR. SCHULMAN: Did you appear and testify
5 in front of the board?
6 f MR. RUDOLF: I personally did not. My
7 attorney did.
8 MR. SCHULMAN: You were represented by
9 counsel? What was his name?
10 MR. RUDOLF: John Shubin.
11 MR. SCHULMAN: Why did you pick John
12 Shubin to be your counsel?
13 MR. RUDOLF: We thought he was a good
14 attorney.
15 MR. SCHULMAN: Any particular expertise
- 16 that attracted you to him?
17 MR. RUDOLF: He is a zoning attorney.
18 MR. SCHULMAN: Zoning attorney. He is
19 well versed in matters of comprehensive planning
20 and the like and that's why you hired him?
21 MR. RUDOLF: I would assume so.
22 MR. SCHULMAN: Now, did you -- you say
23 you worked long and hard to find out the facts
24 that you disclosed. How long and how hard? How
25 long have you been researching these facts that
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you disclosed in your lawsuit?
MR. RUDOLF: There have been a number of
facts that have come up over the years, but
these latest facts are fairly recent.
MR. SCHULMAN: They date back how many
years, 1987?
MR. RUDOLF: Absolutely not.
MR. SCHULMAN: Okay.
MR. RUDOLF: Very recent. Certainly well
within the last --
MR. SCHULMAN: When did you start doing
homework in this matter?
MR. RUDOLF: Just for the record, it's
certainly been a recent finding.
MR. SCHULMAN: Did John Shubin have
access to public records of the village during
the time that he represented you?
MR. RUDOLF: I have no idea what John
Shubin did or didn't do. I can only tell you
this, he wasn't involved with me in this
search. I did this all on my own.
MR. SCHULMAN: Were you ever denied
access to the city at any point in time to do a
search for public records or any of their
documents dealing with the comprehensive plan as
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it exists today or back in 1987?
MR. RUDOLF: I asked for a lot of these
plans but they didn't exist. Actually, no,
everyone was very cooperative.
5 MR. SCHULMAN: So you had a full
6 opportunity to review the facts as they existed
7 at all times?
8 MR. RUDOLF: I would imagine so.
9 MR. SCHULMAN: Were you ever stopped in
10 testifying before this board as to any matters
11 in any of the previous hearings regarding this
12 matter?
13 MR. RUDOLF: No.
14 MR. SCHULMAN: Were you aware also that
15 the comprehensive plan for the village was
16 changed again in 1997?
17 MR. RUDOLF: Yes.
18 MR. SCHULMAN: Were you a resident at
19 that time?
20 MR. RUDOLF: I believe I was, yes. I'm
21 not sure, but I think so.
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MR. SCHULMAN: Did you appear at any of
the public hearings in that regard?
MR. RUDOLF: No.
MR. SCHULMAN: Do you know that there was
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a modification to that same provision in 1997
that was made again?
MR. RUDOLF: You would have to tell me
what you are referring to.
MR. SCHULMAN: Let me read to you the
1997 modification to the comprehensive plan. It
7 says, 5.5 acre club facility located between
8 Collins Avenue and the beach front could be
9 redeveloped as high density, multifamily or
10 hotel in accordance with the village code and
11 the plat and zoning regulations. The
12 redevelopment is anticipated in the near
13 future.
14 MR. RUDOLF: In my recent analysis and
15 research of the situation, I did see that, yes,
16 I did.
17 MR. SCHULMAN: That was changed in 1997
18 while you lived here?
19 MR. RUDOLF: I believe it was.
20 MR. SCHULMAN: And you were aware of the
21 comprehensive planning process was going on at
22 that time?
23 MR. RUDOLF: I just wasn't aware of how
24 it was done.
25 MR. SCHULMAN: Did you file an appeal
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from the change in the comprehensive plan that
took place in 1997?
MR. RUDOLF: I don't believe so, no. But
4 I wasn't aware of any of this in 1997.
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MR. SCHULMAN: Do you know whether or
6 not, as part of your lawsuit, a request for a
7 temporary injunction was made to stop this
8 hearing from going forward?
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MR. RUDOLF: To stop this hearing from
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10 going forward?
11 MR. SCHULMAN: Yes, to stop the council
12 from hearing the matter?
13 MR. RUDOLF: I would have to defer to my
14 attorney on that.
15 MR. SCHULMAN: You don't know whether
16 that was approved or denied?
17 MR. RUDOLF: I would have to let him tell
18 you about that. He handles the legal part.
19 MR. SCHULMAN: Okay. Nothing further.
20 Thank you.
21 MR. RUDOLF: Sure.
22 MR. TAYLOR: Mr. Mayor, Members of the
23 Council, good afternoon. Having been to several
24 of these meetings and not having a chance to
25 address you, it's my pleasure to get up and say
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something today.
Skip Taylor, 1000 Lincoln Road, Suite
230.
Let my start out by dealing with some of
the things that the other lawyers said today and
then get into my presentation, and I will try
make it brief.
This council met the last time and some
of these issues came up. This council which
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took the action, which we deem was very
appropriate, to continue the matter for 30 days
to allow and, in fact, charge the city attorneys
with the duty of investigating some of the
allegations that were made in our lawsuit.
One of the things that our lawsuit
presented or one of the opportunities, for lack
of a better word, is subpoena power. Because
although the city attorneys might be excellent
lawyers or whatever, by law they have no
subpoena power. There are many ways to conduct
an investigation without subpoena power, with
investigators, with many, many, many different
ways.
�o
But because we had a lawsuit pending and
because that lawsuit gave subpoena power, it
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made it easier for the city attorneys to do
their job because they could rely upon our
subpoenaing the two individuals in question to
receive their testimony under oath as to what
5 exactly happened, although, of course, as
6 Mr. Rudolf pointed out, we know what happened,
7 our investigation has shown what happened, and
8 we'll deal with that in a moment.
9 Now, after you did that and after you
10 charged the city attorneys with that duty, we
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had set up the deposition, without objection
from the city. They didn't cooperate. They
wanted to make it clear they didn't want to be
14 on board with us because they felt it was --
15 they had a separate responsibility to the city
16 and ethically they couldn't be on board with
17 us. But since they were charged with the duty
18 to investigate -by the city, they didn't object
19 to our taking the depositions, and we scheduled
20 the depositions of Richard Olson and James
21 Boggess.
22 The lawyers on the other side got wind of
23 those depositions, and when I say got wind of
24 them, we set them for a public place. We set
25 them for your Bal Harbour City Hall. So we
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weren't trying to hide them or anything like
that. We wanted them open to the public and
anybody who wanted to come was welcome to come.
They got wind of the depositions and, for
lack of a better word, went crazy and, you know,
went into court and got an emergency hearing and
did all sorts of things which took our first set
of depositions, which were originally scheduled
for I think a Tuesday or Wednesday, or whatever,
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and got them continued to the following Tuesday,
which was subsequent to an emergency hearing
that they arranged that morning.
The purpose of the emergency hearing was
to block the testimony or block the taking of
the depositions of Olson and Boggess because
they are desperate that those facts not come out
under oath. They want to take the position that
those facts are- irrelevant. They don't care how
conflicted these people were. They don't care
what impact this has on the city or the future
of the city or the citizens.
But they want to do everything they
possibly can by raising every possible legal
technicality to make sure the facts are obscured
and can't be brought out. That won't succeed in
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the long run, but did succeed in the short run
by the judge allowing them to, on an oral basis,
without even notice, on an oral basis, allowing
them to stop the depositions and pending a
hearing at some time in December.
The reason I go through all this is
because I think it's very, very, very
inconsistent for the lawyers to get up here this
9 morning or this afternoon and rush you or say
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that you should rush to grant their zoning or
that you must grant their zoning, and, in fact,
that you should do it today and you should grant
13 their zoning, when, in fact, they have done
14 everything in their power to keep the evidence
15 from you, to delay this proceeding, and to make
16 sure the discovery couldn't proceed.
17 So I think their position when they come
18 forward and say you should do this today and you
19 should grant the zoning and you have to do this,
20 based upon the fact that they ,have caused the
21 delay in getting to facts is inconsistent and
22 inappropriate.
23 With that, I will leave the lawyers alone
24 for a moment and go to what I would like to tell
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you all about our lawsuit and how it relates to
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this community and how we perceive it and how it
came about and things like that.
Let me just start out on a very personal
note by telling you that I have a great respect
for Bal Harbour and love for Bal Harbour. I
grew up in Surf Side. Doug and I have known
each other since second grade. We used to play
in Bal Harbour.
As a matter of fact, we had a boy scout
camp out, we had a camp out out in the west
parking lot of the Ea' Harbour Mall. So if
anything, we want to do everything we can to see
Bal Harbour maintain the character that makes it
Bal Harbour and makes it so unique.
Now, I want to separate for the moment,
and I think this is -
MAYOR HIRSCHL: Please continue.
MR. TAYLOR: I think -- I want to
separate for a moment, because I think it's a
vital separation to be made, the lawsuit from
the allegations contained in the lawsuit. And
what do I mean by that, by separating the two?
Well, first of all, a lawsuit is a thing
that brings a matter before the Court. It is
something that gives the Court jurisdiction and
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power to make a ruling on something. And in
this case, it was the appropriate way and the
only way we could find to bring certain matters
that we uncovered that are the subject of our
lawsuit before the Court, and to be honest with
you, also as a result of the lawsuit, before the
council.
And the reason that I say that there is a
separation or thee should be a separation
between the lawsuit and the allegations is, as
Mr. Rudolf pointed out a few moments ago, if the
lawsuit disappears this afternoon or tomorrow or
he moves out of Bal Harbour or whatever happens,
the fact of the matter is this council is still
faced with the prospect that you have before you
newly discovered evidence, evidence which was
not before you, which was not known, which was
not contemplated by anybody during any of these
proceedings, so lawsuit notwithstanding, and
jurisdiction of courts notwithstanding, and
judge's rulings notwithstanding, because judges
aren't elected by the citizens of Bal Harbour to
conduct the legislative function. They are
elected by citizens of Dade County to conduct a
judicial function. There is a difference
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between to two, and we'll get to that.
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This council has a fiduciary duty to the
citizens of Bal Harbour.
A fiduciary duty is
the highest form of a duty you can get. I mean,
these people put their faith and confidence in
you in a manner that this country provides above
7 all others, which is their vote. There's no
8 higher form of respect or no higher form of
9 confidence that they can put in you all to carry
10 forth their rights and stick up for their
11 feelings and the way things should be. So the
12 fact of the matter is, I think that -- I guess
13 what I'm getting at is this council has a
14 different standard and this council has a
15 different way of looking at things and this
16 council has a different obligation than a court
17 of law.
18 In a court of law -- in a court of law
19 there are many legal defenses. Counsel on the
20 other side has already attempted to raise many
21 of those legal defenses in court; statute of
22 limitations has already been decided by another
23 court. They already attempted to raise many,
24 many legal hurdles. But the fact of the matter
25 is legal hurdles are for judges. Legal hurdles
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are not for the council. The council here
should not be concerned with legal arguments and
standing and the things that Mr. Schulman was
getting to.
What difference does it make whether
Mr. Rudolf was a resident in 1986? Maybe it
makes some legal difference to Mr. Schulman in
some research that he did that he's going to
present before the Court to try and convince
them not to allow this to go forward or not to
allow you to make the proper decision.
But does it really make any difference as
to whether or not this master plan was done
inappropriately with people who had conflicts?
And does it make any difference to any of those
other things or the way that you have to look at
this or in light of your responsibility to the
citizens of this community and residents of this
community?
This council has been presented with
evidence that was not available. While
Mr. Schulman attempted to ask Mr. Rudolf certain
questions, I need to make it clear, this
evidence was not -- we weren't aware of it, to
the best of our knowledge, neither was anybody
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else until probably, in my estimation, and I'm
not giving this as an exact date because I don't
want to be held to it, but when I got involved
in this case it was the very end of last year.
That's when we first became aware -- I first
became aware and we started to work on this
based on these -- the preliminary indication
that there was a problem.
And as a rnatter of fact, Mr. Ambezi
(phonetic),
who was one of the people who was
involved in that process at that time in helping
us move forward and investigate this conflict.
So the fact of the matter is, let's talk about
what has happened so far and where we are.
Let's not talk about the Rudolf lawsuit for a
second. Let's talk about the other lawsuit, the
one that the other side filed and the one that
they keep talking about that bars you or
prohibits you from doing anything and they keep
talking about has already decided the zoning and
this already makes all of this moot. I think
there are several things you have to understand
with regard to that presentation that they make
and with regard to that lawsuit.
First of all, you have to understand the
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focus and purpose and the way that that lawsuit
was treated. The issue in that lawsuit was
3 whether or not the application of the other side
4 was consistent with the master plan. If the
5 application was consistent with the master plan,
6 it then shifted the duty to the other side to
7 make whatever objections they could and show
8 whatever they could to give you a good reason to
9 deny the application.
10 It hinged on the consistency with the
11 master plan. It never dealt with the master
12 plan itself in terms of the legality of it or
13 the way it was done or any of those things. It
14 dealt with the fact that it was consistent with
15 the master plan. That was the issue.
16 The allegations that we have made in the
17 lawsuit and, again, forgetting about the
18 lawsuit, the allegations before you independent
19 of any lawsuit,'the allegations you are faced
20 with living with now are that the master plan
21 itself was invalid because it was done with
22 I people who were -- who had their own interest in
23 I mind, and had that interest ahead of the
24 citizens of Bal Harbour.
25 And the fact of the matter is that that
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master plan was relied upon in the decisions of
the Court that you have all gotten many, many
times, that you have read many times, that the
other side has cited many times. The Court
relied very heavily that it was consistent with
the master plan. No one ever raised any issues
of the master plan because, as I said, no one
knew there was a problem with it.
So the fact of the matter is that the
master plan itself was not only the basis of the
Court's decision, but as I understand in
listening to the ordinance and things like that,
it's also a basis of any new ordinance which
would give them the right to do what they want
to do.
So clearly the master plan is at the
heart of all of this and clearly the validity of
the master plan and how it was done and why it
was done and under what circumstances has never
been heard by any court or by any council or
anyone up until this moment.
And that is why I say it has to be
separated from the lawsuit. Because lawsuits
come and go, but these facts, as Doug pointed
out, won't come and go. These facts are what
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1 they are.
2 Now, let's talk about what actually
3 happened and what actually was done by us, et
4 cetera. When we uncovered these bases of these
5 allegations, we started to investigate. We
6 conducted as thorough an investigation as we
7 possibly could. The investigation led us to
8 find that the person who was the mayor at the
9 time, Mayor Olson, voted on an issue in which he
10 had a direct financial interest. And that is
11 borne out by the fact that, as I understand it,
12 Mayor Olson, former Mayor Olson ultimately
13 received $160,000, more or less, for his
14 certificate in the club.
15 At the time he voted in 1986, or whatever
16 it was, for the change in the plan, the value of
17 that membership was probably, if anything, a
18 couple few thousand dollars, if it was even a
19 saleable commodity.
20 So by his vote what actually happened was
21 that his share, his pocket was lined to the tune
22 of $160,000, more or less, from what would have
23 been maybe two or three thousand, if anything.
24 MAYOR HIRSCHL: I need to interrupt you
25 for a second. How do you know that Mr. Olson
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received that money? How do you know that
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Mr. Olson had a financial interest at all?
MR. TAYLOR: First of all, although we
have not gotten a chance to ask Mr. Olson
personally, as we just said, anybody that we
have interviewed, anybody that we have talked to
that was a member of the club at the time,
anybody that knew anything about the club at the
time has verified that Mr. Olson was on the
board of the club at the time.
In addition to the depositions, one of
the subpoenas that we had issued, which the
other side managed to forward at this emergency
hearing, was the subpoena for the records of the
Bal Harbour Club, which would have actually in
black and white proved that.
But the fact of the matter is, we have
absolutely every good faith reason to believe,
based on our investigation of interviewing
people, of reviewing records, of doing all these
things, there has not been one iota whatsoever
of any proof, of any proof whatsoever that he
was not a member of the club.
With regard to whether or not he got
money and how much he. got, Mr. Ambezi is here.
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1 He can tell you. He was the one that handed him
2 the check. Maybe I was wrong. Maybe it wasn't
3 160,000. Maybe he can tell you whatever the
4 correct amount was.
5 MAYOR HIRSCHL: Mr. Ambezi?
6 MR. TAYLOR: Yes, he was the one that
7 bought the certificate from Mr. Olson.
8 Certainly he is here today. He can speak for
9 himself as to how much he paid for it. I don't
10 want to put words in his mouth. Maybe I'm wrong
11 in the amount. Let him talk for himself.
12
But the fact of the matter is that in the
13 course of the investigation we in no way
14 uncovered anything whatsoever, anything
15 whatsoever to show anything other than what we
16 are telling you today.
17 With regard to Councilman Boggess, his
18 interest is equally inappropriate and equally
19 filled and fraught with conflict. And to
20 anticipate your question about how we know,
21 Councilman Boggess was nice enough and
22 forthright enough to tell us and to tell the
23 city attorneys and to tell everybody that wanted
24 to hear, and I think, I'm not positive, but I
25 think at one of the other meetings he might have
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even gotten into it, but Councilman Boggess's
situation was that he was not a sole owner of a
proprietary membership, but rather that the
building that he lived in was the owner of the
proprietary membership, an equity membership.
Therefore, when the club was sold, the money did
not go into his hand directly, although it could
have been done that way. What the condominium
decided to do was to take that share, that money
from the proprietary interest and equity
interest and use it for repairs in the
condominium and things like that.
Well, the fact of the matter is, if they
used it for repairs in the condominium instead
of distributing his prorata share to him or to
the others, he still had a financial interest in
it and a direct financial interest, and the fact
is I don't think the conflict is any less
because his interest was say 3,500 or 5,000 or
8,000, as opposed to 160,000, as in the case of
Olson.
Now, let me talk about, for a moment, the
statute itself that brings all this before you
and the genus of that statute and what it really
means. Because, you know, as a lawyer, you
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know, there is a certain process you go through,
you know, you get the facts and somebody brings
you facts and they say, well, these are the
facts, Skip, what does that mean? I mean,
legally what does that mean? Is there anything
wrong with this or how do we proceed?
What we are trained to do in law school
is take the facts that people bring us and try
to find a pigeon hole for them and try to
determine how they compare the law and based
upon that analysis what to do' and how to move
forward.
So when Doug brought these preliminary
allegations and we started to do an
investigation, as I pointed out, and they
appeared to be true, I started to do research
and to determine -- at least to attempt to
determine whether or not anything that the
councilmen did at time and mayor did at time
might be inappropriate, whether there was any
law dealing with that subject, whether there was
anything that prohibited them making such a
vote.
And lo and behold I uncovered the statute
cited the lawsuit. That statute makes it clear
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that anybody who has a financial -- first of
all, let's be clear about something else.
Let
me say this for a moment. The law often times
is silly, but this is one occasion where i=
wasn't. And the law points out, it says that we
are not trying to eliminate all conflicts
because nobody in life is totally conflict
free.
I mean, the fact that you live in Bal
Harbour, was that a conflict that, you know, you
are on the council. I mean, everybody has
certain conflicts. But the point of the matter
is that the law said, look, we understand there
are certain conflicts that are unavoidable.
There are certain conflicts that can't be
allowed, that can't be allowed to be ignored.
And one of those conflicts is a public official
voting on something that he has a financial or
potential financial interest in. And when --
and that's why this law was drawn.
And what does it do? What does it
prohibit? It prohibits, A, voting on any matter
where there is a potential financial interest
and, therefore, a conflict. B, it requires that
within 15 days of that person recusing
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themselves and not voting to file with a clerk a
2 letter explaining why they recused themselves
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and what the basis of the conflict was. That
4 was not done by either Olson or Boggess, either
5 that they recuse themselves or did they file
6 such a pleading or such a document with the
7 clerk of the council.
8 Now, the interesting part about this law
9 is is that originally, as I recall, and it's not
10 really that important to you all, let me just
11 point it out anyhow, but originally, as I
12 recall, the law didn't deal necessarily or:was
13 unclear as to whether or not it dealt with
14 municipal officers. And the law was then
15 adapted or was then adopted or was then set
16 forth and a specific provision was added in
17 there which states that municipal officers are
18 included in this. I mean, it deals directly
19 with municipal officers. So in terms of the
20 level of conflict, it's not like you have to be
21 a county commissioner to have a conflict or the
22 president of the United States. The law
23 specifically deals with municipal officers. And
24 these people clearly, as are yourselves, are
25 municipal officers.
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That was the genus of the statute. And
nobody, the city attorneys, the other side,
there is no one in this world that is going to
say that is not what the statute says and the
statute doesn't apply to these people. What
they want to say is notwithstanding all that,
you are not even allowed to consider that, you
are not allowed to think about that because some
court somewhere already told you to grant it.
Now, the issue really becomes, and we are
going to get to whether a court told you that or
not, but the issue really becomes should this
community, should these people here suffer and
be forced for you all to have to ignore the
blatant illegality and blatant conflicts and the
blatant wrongness of the way the master plan was
adapted because of some legal defenses or some
kind of thing that they can find to put in your
way.
Now, let's be clear, and I'm almost at
the end of my presentation, but let's be clear
about one thing. Although the other side keeps
getting up and saying you are under a mandate
and the Court already granted this zoning, et
cetera, well, our research has indicated, and
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you have got your own city attorneys, and if
they have contrary research, I guess they will
bring it up, but our research has indicated, and
there is a whole line of cases dating back to
1945, which is, coincidentally, about the year
this Bartholomew plan was originated, there is a
whole line of cases which clearly say courts
cannot grant zoning.
Let me make that clear. Let me say it
again. Courts cannot grant zoning. And the
reason that courts cannot grant zoning is
because zoning is a legislative function, not a
judicial function.
That is why in all of these
months since this decision that they keep waving
in your face, although they have asked for
clarification, although they've asked for this
and that, that is why you never got an order
saying grant the zoning, because there is no
such order. They can't -- or forget about
that. You never received an order which said
zoning granted. The only thing a court can do
is remand to a legislative body, in this case
yourselves, to carry out the appropriate
legislative function.
You all have been doing that. You had a
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first reading -- as I understand it, you had a
first reading on this ordinance. I wasn't
there. As I understand it, it met with smooth
sailing. Everybody voted to approve it. I
don't mean to be presumptuous and say that I
know what is in your mind or that I know what is
going on, but my guess is but for this newly
discovered evidence that was brought before you,
9 ! that the second reading you would have granted
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the zoning and we wouldn't be here.
But lo and behold, in between your first
and second reading, we were able to bring forth
13 this newly discovered evidence, this evidence of
14 i new conflict before yourselves. And now you all
15 p are faced with the prospect of ignoring that
16 evidence and telling the citizens, hey, we are
17 ] not going to consider that because these lawyers
18 I have threatened us and these lawyers told you we
19 can't do it, or you are faced with the prospect
20 of doing the right thing.
21 You know, at a time when other
22 communities, and specifically the one right on
23 the other side of the bridge from you, are
24 developing ocean side parks for their citizens,
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I mean, I don't think they have one of them, I
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think they have done two of them now or are in
the process of doing two of them. When Aventura
is building parks next to the expressway over
there by the mall, when all of these things are
happening, the moods of communities is to do
things like parks and open space for our
citizens. This council is trying to -- is in a
position of having been forced by these people
to put up a building -- I mean, I read an
article the other day where in Japan they are
going to put up a three, 400 or 500 story
building. These people like to do the same
thing. That doesn't make it right.
The fact of the matter is you all again,
and then I will stop talking with this, you all
have to understand clearly, your duty is
independent of any lawsuit. Your duty is to the
citizens based on what you now know and what you
now cannot avoi..
Thank you very much for your attention.
ASSISTANT MAYOR TANTLEFF: Excuse me,
Mr. Taylor.
MR. TAYLOR: I'm sorry. I apologize.
ASSISTANT MAYOR TANTLEFF: I need to ask
you a question.
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MR. TAYLOR: Absolutely.
ASSISTANT MAYOR TANTLEFF: As we sit here
as a council, we can only base our decisions on
evidence.
And as our lawyer set out the
two -prong test of did they vote and did they
have an interest, do you have any evidence or
does -- I mean is there evidence out there that
these two individuals did have an interest.
MR. TAYLOR: I think one of them is here
today. I think Mr. Boggess is here.
MR. RUDOLF: Olson.
MR. TAYLOR: Mr. Olson. I'm sorry,
Mr. Olson is here. We can bring him up, just
like Mr. Schulman, and ask him a couple of
questions. I will just ask him a few questions
if he doesn't mind. Were you a member of the
council and were you a member of the club and
did you vote? If that's okay with council, we
can call him up and ask him those questions
right now. I am prepared to do that.
Mr. Olson, would you step forward,
please.
MR. SCHULMAN: Mr. Mayor.
MR. TAYLOR: I had a feeling that might
happen. Sorry to make you limp up.
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1 MR. SCHULMAN: Mr. Olson was subpoenaed.
2 The Court has stayed without an emergency
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hearing. I don't know where he came up with
4 that. The Court has stayed discovery because we
5 believe the Court felt there was no merit in the
6 lawsuit. We didn't want anybody to spend money
7 to explore it at the time. Mr. Olson is a man
8 of free will. He may or may not testify. He is
9 not under subpoena today. The issues that have
10 been raised are issues before the Court. They
11 have no relevance to the proceeding. We object
12 to him being cross-examined when he has not
13 spoken. He has no duty, nor obligation, nor has
14 he been called as a witness, nor can he be
15 called as a witness by council in this
16 proceeding, so we leave it to Mr. Olson as to
17 whether or not he wants to get involved in this
18 scurrilous band of -- bunch of complaints that
19 are based on no facts whatsoever and have no
20 relevance in this proceeding, but I just wanted
21 to make my objection known.
22 MAYOR HIRSCHL: Okay.
23 MR. TAYLOR: Mr. Olson, first of all,
24 good morning or good afternoon.
25 MR. OLSON: Skip, we have had a phone
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conversation on the subpoena. I said I would be
happy to appear and testify under oath in front
of a court reporter. Your allegations are
rotten. They mislead everybody. When we get
into the facts and get into the minutes of this
thing, the truth of the whole issue will come
out as to why --
MR. TAYLOR: Here's your chance. I have
three questions.
MR. OLSON: No.
MR. TAYLOR: We have a court reporter, we
have the citizens of the community, the council
is ready to hear the evidence. I know you have
other problems
MR. OLSON: I'm not -
MR. WEISS: Hello. Gentlemen.
Gentlemen. We are not going to have this.
Okay.
ti
Mr. Taylor, Mr. Olson has the right to
either testify or not testify.
Mr. Olson, are you telling us that you
prefer not to testify?
MR. OLSON: Mr. Weiss, I'm telling you I
would be happy to testify at a deposition.
MR. WEISS: I'm talking about today at
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the hearing.
into --
MR. OLSON: No, I'm not going to get
MR. WEISS: With all due respect
MR. OLSON: -- the public rebuke of
alleged misconduct, which is not a fact, that
this man is trying to --
MR. WEISS: Why don't we do it this way,
the council doesn't have the ability to compel
you to testify. You stated that you prefer not
to testify today.
MR. OLSON: I will testify --
MR. WEISS: If you have any further
statements to make regarding this, you are
welcome to do it when we open it up to the
public. But Mr. Taylor's asked if you want to
testify. You said you prefer not to. I think
you should sit down.
ti
MAYOR HIRSCHL: Thank you.
MR. OLSON: What I -
MR. WEISS: If you want to make a
statement later --
MR. OLSON: I will give testimony to a
subpoena ,at deposition.
MR. WEISS: Right.
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MAYOR HIRSCHL: Is there anybody else
that would like to speak to us?
MS. HIRSCH: My name is Sandy Hirsch.
I'm president of the Kennel Worth Condominium in
Bal Harbour. I also represent many, many of the
residents of Bal Harbour that chose to elect
this board, the council that is before us.
I'm totally outraged to hear that two
councilmembers changed our master plan and my
due process has not been served. I'll take a
minute to compose myself. We want to know that
our city is being governed based upon proper
actions of our elected officials; therefore,
residents should never be forced to live out the
missappropriative master plan actions of others,
but should be put in place properly.
Thank you very much.
MAYOR HIRSCHL: Is there anybody else who
would like to speak on the record?
MR. WEISS: Just to do it in order. The
applicant, you wanted to wait until afterwards?
Mr. Taylor, are you done with your
presentation?
MR. TAYLOR: Any questions that I can
answer, I will be glad to do so, but I have
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1 nothing further to offer at this point.
2 MR. WEISS: Okay. Mr. McDowell or --
3 MS. HIRSCH: Excuse me.
4 MR. SCHULMAN: She got her composure.
5 MS. HIRSCH: I just have one other short
6 notice to present, to share with this council
7 and the people that are present. I was
8 fortunate enough to know the family that owned
9 the property from approximately the hotel about
10 six miles north -- south of here and to the
11 bridge.
12 Now, that man presented the property, the
13 deed to that property to the Village of Bal
14 Harbour.
15 MAYOR HIRSCHL: What are you talking
16 about?
17 MS. HIRSCH: I'm talking about the man
18 that presented -a deed to the parcel of property
19 that is now known as the Bal Harbour Beach Club
20 with the provision, with the provision that it
21 would always be used as public property for a
22 Beach Club and that no buildings.were to be
23 built on that property. And one of the those
24 members is in the New York today and can vouch
25 for that. She happens to be a family member.
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Thank you.
MAYOR HIRSCHL: Thank you. Mr. McDowell.
MR. McDOWELL: As you know, I objected to
the whole introduction of the Rudolf lawsuit.
MAYOR HIRSCHL: Speak maybe a little bit
louder.
MR. McDOWELL: Yes, I will. Let me
explain to you why first we did object to
discovery because candidly it was done without
notice to the club. While we were not a part of
that lawsuit, I would only ask that you and I
would take one moment, if I may, to talk about
the Rudolf lawsuit and answer some of the
questions as to why we don't think it's
relevant.
I might ask some member to hand out
copies. This is --
UNIDENTIFIED SPEAKER: We can't hear you.
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MR. McDOWELL: What I am handing out to
you is a --
UNIDENTIFIED SPEAKER: Louder.
MR. McDOWELL: -- xeroxed copy of a
complaint filed by Mr. Rudolf against the
village that is in the court file. And on the
front of it you will see handwritten notes,
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temporary injunction denied 10-14-99, signed by
judge Tam Wilson, Thomas Wilson.
So there was already a court decision
4 denying any injunction related to this lawsuit.
5 We didn't know it until we went and looked at
6 the court file. I don't know whether your
7 village attorney knew it or not. I did provide
8 him with a copy of this after we found it. So
9 the court's already ruled, at least
10 preliminarily, there may not be a basis for that
11 lawsuit to move forward, or at least there was
12 no basis for an injunction to be entered to stop
13 this proceeding.
14 MR. TAYLOR: Excuse me for interrupting.
15 May I have an opportunity when he's finished to
16 respond to that particular portion?
17 MAYOR HIRSCHL: Of'course.
18 MR. McDOWELL: I would also ask you to
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19 look at the very last page, page 12 of the•
20 lawsuit.
21 MAYOR HIRSCHL: Speak a little louder,
22 Mr. McDowell.
23 MR. McDOWELL: Let me read you what this
24 lawsuit is asking the court to do, take
25 jurisdiction to immediately enter an order
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1 temporarily restraining and enjoining the
2 Village of Bal Harbour from rezoning, issuing
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variances, building permits, or taking any
4 action changing the concurrent use of the Beach
5 Club recreational property, and the court
6 entered a judgement declaring that portion --
7 that portion of the Village of Bal Harbour's
8 1988 comprehensive master plan regarding the
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beach recreational property null and void, and
it goes on.
What it's intended to do is to ask the
12 court to stop you from taking action in accord
13 with the court mandate that has been issued to
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you. And to, with precision, go in and somehow
have the Court invalidate one paragraph out of
your 1988 comprehensive plan.
17 I'm going to explain to you why that
18 doesn't work and why this lawsuit is --
19 ASSISTANT MAYOR TANTLEFF: Can I stop you
20 one second real quick? As a body, as an elected
21 body, do you think we have a responsibility if
22 somebody brought us facts and this lawsuit was
23 never filed or this lawsuit was thrown out,
24 regardless of the lawsuit -
25 UNIDENTIFIED SPEAKER: We can't hear
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ASSISTANT MAYOR TANTLEFF: I will start
again. Do you think that a body, such as ours,
has a responsibility that if allegations are
brought to us, even if there is no lawsuit, to
investigate allegations such as that come before
us?
MR. McDOWELL: I have no problem, if it
is brought to you in the proper form, for you to
investigate these kinds of issues. And I'm
going to help spread some light, I think, on
what this lawsuit is all about and maybe some
facts behind it on what the ultimate result of
the lawsuit is likely to be --
ASSISTANT MAYOR TANTLEFF: Regardless -
MR. McDOWELL: Yes, I have no problem.
MAYOR HIRSCHL: Please continue.
MR. McDOWELL: So the lawsuit is aimed
purely at the club and stopping this rezoning.
And you heard Doug Rudolf first stand up
and recite to you some of the facts as he sees
it about why this is different and why this is
newly found evidence and why it's important. He
talked about the Harlem Bartholomew plan and the
green spine running. And I would also, and -I
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can give it to you, and I'm not going to read
the whole thing, but the court's decision that's
before you has already addressed those facts.
Those facts were argued at the (inaudible).
They were argued on the motion for rehearing.
They were denied in each and every case.
7 Indeed, I'm looking at the second full
8 paragraph on page two of the circuit court
9 decision that specifically refers to 1945 Harlem
10 Bartholomew plan and the original master plan
11 was designed as an intensively graded, the plan
12 provided for reinstalling. So that is not- new.
13 The Court heard those arguments and addressed
14 them. That testimony really is nothing new
15 before you. The only thing that is new is the
16 allegations of conflict of interest. And I want
17 to address several aspects of that.
18 First of all, it was in 1988, and your
19 village attorney has given you the minutes of
20 the meetings in which that master plan was
21 adopted. And I think if you look at them, you
22 will see that there was a single motion adopting
23 the entire comprehensive plan that was voted on
24 by this village and by the then village council
25 and it was a unanimous vote in each case, 5-0.
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1 No dissent. It was a unanimous vote each and
2 every time it came up.
3 Importantly, there was no discussion in
4 the minutes or in the ordinance or in the
5 warehouse clauses that addresses the club by
6 itself. Nobody is arguing that there wasn't a
7 change that may have affected the club
8 property. But in my background, and some of you
9 know it, most of you probably don't, in addition
10
11
to being an attorney, I have a master's degree
in urban regional planning. I have worked in
12 local government.
My most recent position was
13 director of the building and zoning and
14 community development in the City of Miami. I
15 have written and prepared comprehensive plans
16 for half a dozen cities throughout the state, so
17 I'm not unfamiliar with the process of
18 comprehensive plan.
19 It is true there was a comprehensive plan
20 and there was a statute that was adopted in 1975
21 that required the city to adopt a comprehensive
22 plan. And most cities didn't get around to that
23 until 1979 because they delayed it, delayed it
24 and delayed it.
25
There was very minimal requirements in
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that statute at the time that it was enacted.
And the state, for better or worse, decided that
in the early 1980s that those plans were really
not worth anything, that there were many plans
adopted that didn't have a future land use map,
that didn't have any background studies, and
10 mandated many, many, many new requirements.
11 So when you adopted your comprehensive
12 plan in 1988, I can show you, without ques=tion,
13 and if you want to find a copy of your 1979 plan
14 and your 1988 plan, I suggest all you have to do
15 is ask the Florida Department of Community
16 Affairs and/or the South Florida Regional
17 Planning Council, they should have those of
18 records. Maybe they lost them. I don't know.
19 But there's absolutely no question that
20 there were many changes included in this 1988
21 plan. For example, concurrency did not exist in
22 1979. Concurrency was not a requirement. So
23 all of your level of service requirements, all
24 of your evaluation, your infrastructure in
25 relation to that had to have happened in 1988.
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There was no requirement prior to that.
So you have a vote in 1988, a single
vote, a single motion, two public hearings, and
they are adopted unanimously. So somehow
Mr. Rudolf or Mr. Taylor believed the Court
would somehow be able to parse a single
ordinance and reach in and say that part of that
ordinance was illegal. The whole rest of the
plan is fine, but that part is illegal. Courts
can't do that. They don't have a right to reach
in and find a single piece of a single vote of a
village council as being improper.
I would go on to say, you know,
Mr. Taylor argued, well, we haven't been able to
find out, we haven't been able to verify. I
would say to you, I accept everything he said in
his lawsuit as true. Let's assume that Mayor
Olson indeed was an equity owner and he was the
mayor. Let's assume that he voted on it. Let's
assume that Councilman Boggess, as he apparently
has admitted, is an owner of the condominium
association that owned a share in that club,
which was ultimately sold That doesn't lead to
the conclusion that there was a conflict of
interest, and/or if there was, that the vote and
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the comprehensive plan was called in question.
Mr. Taylor talked to you about the
3 statute that limits it, that establishes the
4 code of ethics. What he didn't talk to you
5 about is the state statute 112.322, which
6 establishes the commission on ethics for the
7 State of Florida. That's Florida statutes.
8 [ And it says that every public officer has
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the right, when in doubt, to ask for the opinion
10 J of the commission of ethics. And in the event
11 the opinion is issued, is bound by that
12 opinion. If you will, commission of ethics is
13 the body which is charged under state statutes
14 in interpreting what is a conflict of interest.
15 If you go to and do the legal research,
16 and I heard Mr. Taylor said he did a lot of
17 research on this question, I would like to read
18 to you part of -- and I will hand you a copy of
19 it because I have underlined parts of it.
20 This is the decision of the commission on
21 ethics nine -- it's a 9-71, dated October 19,
22 1990, entitled Voting Conflict of Interest, town
23 commissioner voting on neighborhood dredging
24 improvement project requiring special assessment
25 on his property. I won't bore you with most of
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the details, but if you go to the second page,
have underlined some language and the opinion of
the council of ethics.
It says that the issue here is whether
5 the project will ignore your special gain, the
6 special private gain. That is the commission
7 speaking to the entity -- the gentleman that
8 requested this opinion.
9 And it goes on and says, where a class is
10 large, a special gain will result only if there
11 are circumstances unique to the official which
12 would enable him to gain more than the other
13 members of the class.
14 It continues, we have concluded that no
15 voting conflict was presented in other
16 situations where the interest of the public
17 official involved one percent or less of the
18 class. It then cites a series of opinions of
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19 the commission on that. There's 38 -- 38 of
20 5,000 acres involved. 101 out of 500 persons.
21 Ninety percent out of 250 effected residents.
22 300 out of 29,000 acres. Rezoning of the town
23 with the population of 210. One of the 600 -
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650 property owners are affected.
25 Then it goes on to say here, the property
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1 which you jointly own with your wife constitutes
2 about 1.2 percent of the 83 separate lots, which
3 would be included in the assessment. And they
4 conclude, therefore, since your proportionate
5 share of the benefit of the improvement project
6 and the assessment is relatively low, we feel
7 that any gain received by you would not
8 constitute a special gain within the
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contemplation of the law. They have enunciated
on many occasions the one percent rule.
If you look at the allegations of the
12 lawsuit, which I handed to you, you will find
13 that the allegations that he owned one of 163
14 equity memberships in the club, less than one
15 percent. So assuming he did own it, and
16 assuming that the allegation that there was 163
17 is correct, he would have had no conflict in
18 terms of vote on this comprehensive plan.
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19 Moreover, he was not voting just on the
20 Beach Club property. He was voting on a
21 comprehensive plan that affected every single
22 parcel in the Village of Bal Harbour, as was
23 every other member of the council, including
24 Councilman Boggess at that time.
25 If that's not dispositive of your
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question, which I think it is, let me take you
through a little bit of a short math exercise.
There is an alleged conflict of two village
councilmembers. The village comprehensive plan
adopted in 1980 --
UNIDENTIFIED SPEAKER: We can't hear.
Speak up.
MR. McDOWELL: A comprehensive plan -- I
apologize was adopted in 1.988, and it was a
unanimous vote of five members of this village
council. There were no dissenting votes. The
quorum was three. If you accept what Mr. Taylor
has said, and they had a conflict of interest,
and they should not have voted, and you throw
out those two votes, the Comprehensive plan was
adopted by a 3-0 vote. It is still valid. It
is still in place. There is no issue.
That is why we said don't waste time on
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discovery and other issues. It has nothing to
do with Mr. Olson or Councilman Boggess. There
is no valid basis. And even if you accept every
word of the lawsuit as correct, there is no
valid basis to invalidate that comprehensive
plan. I will take it one step further.
ASSISTANT MAYOR TANTLEFF: Can I ask you
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question?
2 MR. McDOWELL: Sure.
3 ASSISTANT MAYOR TANTLEFF: Just to see,
4 you know, this thing that you gave us, the
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question applies to dredging and improvement
6 project, so I don't know how this totally
7 applies because --
8 MR. McDOWELL: If you read what it really
9 says is there were going to be votes and there
10 was litigation involving that improvement
11 project and it was a specific assessment again
12 the councilman's own property.
13 ASSISTANT MAYOR TANTLEFF: This is the
14 question different than the question before us.
15 ASSISTANT MAYOR TANTLEFF: The question
16 before you is whether there might have been a
17 conflict of interest because of a special gain
18 of two members of your village council in 1988.
ti
19 ASSISTANT MAYOR TANTLEFF: Let me ask
20 you --
21 MR. McDOWELL: Your rule that has been
22 enunciated by the body charged with interpreting
23 the statue is the one percent rule.
24 ASSISTANT MAYOR TANTLEFF: Let me ask
25 you, with your background which you laid out, do
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1 you think Mayor Olson and Councilman Bocgess at
2 that time should have been at the meeting _n
3 case they said anything or there were any
4 comments that could have potentially swayed.
5 MR. McDOWELL: I see no problem with them
6 having been there. I'll give an example of one
7 of your sister cities to the south. The City of
8 Miami Beach has gone recently through many,
9 many, many, many (inaudible) zoning. I'm sure
10 you've seen or heard of read about some of it.
11 They did it by area of the city. There
12 were 45 or 50 matters that came up. There' were
13 some of the commissioners who had a -- had
14 clients who were involved in some of the areas,
15 one or the other. And as the day progressed,
16 they recused themselves from consideration of
17 those areas. But they were -- they voted on the
18 entire ordinance which affected the entire
19 city.
20 The fact that they were there and may
21 have discussed or may not have discussed,
22 because the minutes reflect no discussion of the
23 club property. None. And that is the basis on
24 which these rules speak.
Its adopted minutes
25 and its ordinance. It is the basis on which
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1 this rule speaks. There would be no problem
2 with them being there.
3 Should they have publicly disclosed their
4 membership? Probably. Did they? I don't think
5 any of us know. Although I don't think it was
6 hidden that many of the village councilmembers
7 have at one time or another been members of that
8 club. Just as the City of Coral Gables, where
9 each of the city commissioners is a member of
10 the Coral Gables Club.
11 I can't speak to that. Hindsight is
12 often 20/20. My point, though, is if you accept
13 every single word that Mr. Taylor and Mr. Rudolf
14 have made, every allegation, you accept those
15 two votes were improper, it's still a 3 positive
16 vote.
17 Two more issues and then I will sit •
18 down. Mr. Schulman asked Mr. Rudolf an
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19 important question.
20 MAYOR HIRSCHL: Louder.
21 MR. McDOWELL: Are you aware that in 1997
22 the exact same language adopted affecting the
23 club property was amended and readopted as the
24 entire comprehensive plan for the Village of Bal
25 Harbour was readopted by unanimous vote in 1997, 1
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1 + to which Mr. Rudolf said no. He said he was a
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resident, but didn't challenge the comprehensive
plan at the time.
Again, the entire comprehensive plan was
readopted in 1997 by unanimous vote of this
village council. To my knowledge, and maybe
some of you who sat on that vote, they would
like to give us further information. To my
9 knowledge, I don't believe there were any
10 members of the village council at that time who
11 were members of the club. So even if you accept
12 that somehow a 3-0 vote was not appropriate in
13 1988, and even if you accept there was a
14 conflict, that became moot because it was
15 readopted in 1997.
16 And interestingly enough, I would like to
17 read you a couple of lines out of the court
18 I decision. This is the court decision. ., 1997
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19 amendment to this master plan recognized that
20 the redevelopment of the club property was
21 imminent. This amendment stated the 5.5 acre
22 club facility located on Collins Avenue and
23 beach front could be redeveloped as high
24 density, multifamily or hotel in accordance with
25 the village code and plat and regulations.
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Redevelopment is anticipated in the near
future. That is change.
Your village attorney read to you the
language that was in the 1988 plan and said it
might occur sometime in the future. It could
happen (inaudible), but in 1997 when it was
adopted by unanimous vote, it said redevelopment
is anticipated in the near future.
The court didn't rely on the 1988 plan.
The court relied on the 1997 comprehensive
plan. So the whole argument about the 1988 plan
is, if you will, irrelevant to your decision
today.
I apologize for taking up time, but there
are a lot of allegations in this lawsuit. There
were a lot of things raised. I, you know, the
important point for you all to understand is
that they are not relevant to the decision
before the Court because the Court did not rely
on the 1988 plan.
Even if the Court had relied upon on the
plan, even if they did have a conflict, it still
would have been approved on a 3-0 vote. There
is no way under this lawsuit that any action
this village (inaudible) or this village can or
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should or will be overturned.
I ask you again, to follow the court
mandate which is more than a year old at this
point.
UNIDENTIFIED SPEAKER: Can't hear.
ASSISTANT MAYOR TANTLEFF: Can I ask you
one question just to make sure I'm clear because
you obviously did a great amount of research on
this issue. Did you tell us that we are
assuming it as a given piece of evidence that
Mr. Olson, that Mayor Olson and Councilman
Boggess did have a proprietary membership of the
club?
MR. McDOWELL: I said if you choose to
believe that, it doesn't change the outcome.
ASSISTANT MAYOR TANTLEFF: I see no
reason --
MR. McDOWELL: In a court proceeding --
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forgive me there is a thing called motion to
dismiss. When you file that motion to dismiss,
the judge is required to give every possible
inference of correctness on the pleading of the
other side.
Respectfully, if you agree with every
word that Mr. Taylor has in his complaint, which
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is to a great degree a rehash of the Harlem
Bartholomew argument, but it then focuses on
conflict. If you agree with every word, that
they own the shares, that it constituted a
conflict, which I don't believe it did, that
they should have recused themselves, and that as
a result of these allegations those votes should
8 be discarded, it's still approved 3-0 in 1988,
9 and it is still irrelevant because the Court
10 relied upon the 1997 comprehensive plan and
11 those votes had nothing to do with that.
12 UNIDENTIFIED SPEAKER: What?
13 MR. McDOWELL: We ask you to move forward
14 and approve the zoning. Thank you very much.
15 MAYOR HIRSCHL: Thank you.
16
MR. SCHULMAN: Mr. Mayor, Members cf
17 Council. Cliff Schulman again. I will try to
18 speak as loud as I can so that I can be heard,
19 but I will be short. Prior counsel did an
20 excellent job and I will incorporate his
21 comments into mine. I won't be repetitious.
22 I'll also incorporate into the record our
23 presentations made at prior hearings in this
24 matter, which constitute something that you have
25 not seen today. Evidence. All you have heard
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is allegations.
I want you to be clear on one thing, by
the way. The law also says, and I know you are
going to agree with this law, Mr. Mayor and
Members of the Council, what a lawyer says when
he or she appears before you is not evidence.
It is lawyers' argument, rhetoric, allegations,
BS, depending upon how bad it is, but it ain't
evidence.
ti
Let me tell you one argument that was
made today which is somewhat erroneous. I'm
sure it's made in good faith. This is not a
legislative proceeding. In fact, you introduced
this proceeding when we got started, as the city
attorney does every time you have a zoning
hearing, by saying this is a quasi-judicial
proceeding under the decision of the Supreme
Court of Florida in a case called Snyder versus
Brevard County.
What does that mean? That means the
Supreme Court of Florida has said that you can
only act according to competent, substantial
23 evidence, not rhetoric, not lawyers' gibberish,
24 and not hyperbole, argument, or histrionics.
25 All of which, and in fact, the only thing you
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have heard today is hyperbole and histrionics,
and I include myself.
The only evidence before you is the
evidence that was presented in this matter
previously that the Court has already ruled was
sufficient for this zoning to grant. The only
evidence you heard was
to what he thought the
been, should have" been
Mr. Rudolf testifying as
master plan could have
or was in 1944, which is
10 exactly the same testimony he gave before you
11
and that was rejected by the Court out of hand.
12 You did hear a lady who, in the utmost of
13 respect, got it together and remembered that she
14 heard that somebody has said that this land was
15 dedicated in perpetuity and the public. Just so
16 the record is clear here, this evidence was
17 presented to you in
18 introduce it again,
the last hearing and we
this is the plat, not what
19 somebody heard, the official plat of the ocean
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front
of Bal Harbour, which at that point in
21 time, and I
22 they didn't
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right.
pointed this out to you last time,
even get the name of your village
It was Bay Harbour on the plat. Okay.
24 Maybe we are in Bay Harbour now. Maybe they
25 were right.
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But this is what it said about that
parcel. It said, reserve for use as a private
-- the lady said public private Beach Club
for a period of not more than 20 years from
5 January 1, 1945, okay, ended in 1965, last time
6 I checked, and it could be used for other
7 purposes. That is in the record in this case.
8 We just reiterated it for you to understand that
.9 this property orythis project was not envisioned
10 as public property. There has never been any
11 evidence, one scintilla of evidence to that
12 regard, and nor was it restricted to what it
13 could be utilized for.
14 We have raised, we will continue to raise
15 in court, and reserve our right to raise all of
16 those little legal technicalities, you know.
17 You know what legal technicalities are? Due
18 process of law protected by the United States
19 Constitution that you would want if you were in
20 a lawsuit, and you would demand, and that you
21 would hire high-priced lawyers to make sure you
22 ' got. Those are legal technicalities. By trying
23 to get a temporary injunction and not getting it
24 and then still trying to waste everybody's time,
25 money and effort on ten -year -old stale
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1 allegations that could have been raised.
2 There's no newly discovered evidence.
3 Skip even indicated he was hired a year
a ago. When did he file the lawsuit? Figure it
5 out. A month ago, eleven months after he was
6 hired. Mr. Rudolf has been working long and
7 hard doing research. He was never denied any
8 access to the public records of the village.
9 Was it a secret that Dick Olson was a member of
10 the club? Hello? Are we fools? Are we being
11 taken for fools?
12 Mr. Rudolf and all others had the ability
13 to raise all of these arguments before you in a
14 proper forum in 1997. They didn't. They are
15 SOL. Out of luck. They had a chance to
16 appeal. He appealed. He lost. He appealed it
17 again to the Third District. He lost. You know
18 what they say in baseball on how many strikes
19 you get? This is his third strike. He's lost
20 twice before. His lawsuit now is tantamount to
21 harassment. And there are legal remedies to
22 that. Because he's brought this before you, he
23 had the opportunity, he was not prevented. His
24 research was lousy. He hired one of the best
25 zoning lawyers in town, John Shubin. God knows,
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1 Mr. Weiss will tell you, both Mr. Weisses will
2 tell you is that a double Weiss? Okay. A
3 double Weiss. They will tell you. John Shubin
4 is the ultimate zoning lawyer that is the
5 opponent of the big bad developer.
6 He didn't hire a criminal lawyer to try
7 to become a zoning lawyer. He hired the best.
8 Did you hear any testimony of the newly
discovered evidence that Mr. Boggess was a
10 member of the club and that Dick Olson was a
11 member of the club, assuming that that is
12 correct, that's newly discovered? .That was
13 incapable of being ascertained back at the time
14 we had the hearings before you are known. It's
15 a charade. It's a facade.
16 You are under court order, and the only
17 court order you have before you is to grant the
18 zoning in a quasi-judicial proceeding, not a
19 legislative proceeding. You have not one
20 scintilla of evidence against that and you have
21 one legal duty that I must remind you that you
22 swore at the time that you took office that you
23 swore to uphold and defend the Constitution of
24 the United States and the State of Florida, both
25 of which say lawful orders of court must be
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followed and due process, even to people who
want to develop property, must be followed.
3 I will respectfully ask that we end this
4 today. Grant the zoning. Let's move on finding
5 the best design project for this site. Thank
6 you.
7 UNIDENTIFIED SPEAKER: And the people.
8 MAYOR HIRSCHL: Anybody else?
9 Dr. Scheiman (phonetic)? We need to swear the
10 gentleman in.
11 MS. HORTON: Please raise your right
12 hand. Do you solemnly swear to tell the truth
13 and nothing but the truth, so help you God?
14 MR. SCHEIMAN: Yes.
15 MAYOR HIRSCHL: Your name and address,
16 please?
17 MR. SCHEIMAN: May name is Steve
18 Scheiman. I live at 234 Bal Crest Drive in Bal
19 Harbour. I want to apologize for my
20 appearance. This was an important proceeding.
21 If my wife could see me now, she would be very
22 angry.
23 Having said that, just a quick word that
24 is said with a lot of respect and not trying to
25 be a loose cannon or, as this gentleman said,
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any histrionics or hyperbole or some of the
other things he said. It may be that these were
lawful proceedings.
MAYOR HIRSCHL: Speak to
MR. SCHEIMAN: It may be that everything
was lawful proceedings and --
7 MR. WEISS: Just address the council.
8 MR. SCHEIMAN: I respect that. When I --
my remarks are partially directed to the
10 eloquent gentleman who said he was a master
11 planner. And I just sort of have a rhetorical
12 question for him. Is it absolutely vital to the
13 national security or local vitality of Bal
14 Harbour that we have.yet another high-rise in
15 this, the last parcel of land?
16 I have the perhaps dubious fortune of
17 having lived in Los Angeles for a few years
18 close to Wilshire Boulevard in Condo Canyon,
19 and, you know, if he's the master planner, then
20 I give him credit to be, and I certainly don't
21 want to put words in his mouth, or as this
22 gentleman who just finished his remarks said,
23 are we fools, are we being taken for fools? is
24 it absolutely, absolutely essential that this
25 last parcel of land have to be developed as
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another high-rise? Some people may in fact
aspire to be cement cave dwellers. I personally
do not. Thank you.
MAYOR HIRSCHL: Anybody else like -- yes,
sir. Did she swear you in?
MR. WEINSTEIN: I wasn't.
MS. HORTON: Raise your right hand. Do
you solemnly swear to tell the truth and the
whole truth, so help you God?
MR. WEINSTEIN: Yes.
I have been listening --
MAYOR HIRSCHL: Your name and address?
MR. WEINSTEIN: My name is Joel
Weinstein. I am at the Plaza Bal Harbour, 10185
Collins Avenue. I have been listening to
everyone speaking.
Everybody has a lot of nice
things to say. One of the things that bothered
me was the -- the attorney standing about the
property, the club house.
What I was going to bring out was that
there is a lot of things being said about people
that got some money and we don't know whether
they got money. And there was a man here that
didn't want to testify whether he did or didn't
get any money. And with all these questions in
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the air, I think it's up to the council really
to get all the facts in front of them before
3 they make a vote. So my particular feeling was
4 that we postpone this or continue it for a year
5 until we get all the facts in order, and then
6 come before the council and make some sort of
7
decision because it seems there is always a
8 problem up in the air, so that would be my
9 suggestion. And"I thank you very much.
10 MAYOR HIRSCHL: Anybody else like to make
11 a comment? Okay.
12 MR. TAYLOR: I had indicated that I might
13 have the opportunity to just respond to a couple
14 of his points.
15 MAYOR HIRSCHL: Mr. Taylor.
16 MR. TAYLOR: I'm going to be brief. I
17 want to take the opportunity to respond to some
18 of the points that other counsel mentioned so
19 that you have an understanding, a full
20 understanding, not a partial understanding.
21 You have heard a lot about tests and the
22 test the Court used, the test 'this Court used,
23 the test this -- this one percent. I'm going to
24 give you a test that you can use and a test the
25 citizens can use. It's called the smell test.
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1 If you think that this vote by these two people
2 passes the smell test, then go ahead and give
3 them the zoning. Okay.
4 Now, Mr. Schulman says, okay
, we'll put
5 yourselves in the position. Why don't you do
6 that. Put yourselves in the position. You ask
7 yourselves, each one of you, whether or not you
8 would vote under the circumstances or you would
9 recuse yourselves under the circumstances that
10 Boggess and Olson voted. If you say to
11 yourselves you would vote and feel good, then
12 give them the zoning. Tell these people here
13 I that you would vote and give them the zoning.
14 Now, when they talk about the '97
15 reaffirmation, so to speak, of the plan, first
16 of all, I don't know how many of you, if any of
17 you, were on the council at that time, but the
18 fact of the matter is this wasn't an issue in
19 '97. Nobody was focused on the validity of the
20 original master plan or how that came up. The
21 city attorneys didn't point to that. This was
22 something that came perfunctorily before the
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city council and there was no issue as to
24 whether or not we should go back and review what
25 they did in '86 or anything like that.
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This was a matter of fact thing. Ask
yourselves again, as Mr. Schulman said, ask
3 yourselves if you would have been on the council
4 in '97, and you would known about the conflicts
5 of Boggess and Olson whether or not you would
6 have made it a perfunctory matter or whether or
7 not you would have gone ahead with it. Apply
8 that smell test.
Now, theytalk -- talk about high-priced
10 lawyers. Talk about a lot of lawyers and
11 stuff. My God. If this was so clear and the
12 Court granted you the zoning, you don't think
13 they'd come in here today with a piece of paper
14 that says, by the way, don't even think about
15 talking about this today. They have had 15
16 months to go back to any court in the land, U.S.
17 Supreme Court if they wanted to, to come in with
18 a piece of paper prohibiting you from listening
19 to what I have to say or Mr. Rudolf or what the
20 citizens have to say.
21 Have they got it? No. Ask yourself
22 why. They talk about getting an injunction.
23 I'm not going to make lawyers out of you in a
24 two -minute presentation.
25
Let me say this to you
just so you'll know the history. There are
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certain procedures that are supposed to be
followed when you ask injunction.
I was at the courthouse on another
hearing that morning, having just filed that
lawsuit the day before, two -- I think it was
the day before, might have been the two days
before this lawsuit, this Bal Harbour lawsuit.
I figured, well, let me take this pleading to
the judge's offict and see if we can get a, you
know, hearing on this, not that I was expecting
to get an injunction that morning. Let's see if
we can get a hearing set.
I took it before Judge Goldman, who the
case is assigned to, and Judge Goldman was so
busy with so many others cases and stuff like
that, he didn't have time to hear it. I can't
hear it. I can't hear it. I can't hear it.
And he basically threw me out of his office.
Get me out of my office. Go see one of my
alternates.
I walked down the hall and saw Judge
Wilson. Judge Wilson looked at it quickly and
said, look, I am not going to rule on this
without the city being present. I am not going
to rule on this and enjoining the city based on
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your say so, Skip. That's not the way things
are. I didn't have a verified, meaning sworn to
complaint. There were procedural things that I
didn't have. We didn't expect to get a ruling
on an injunction that morning. But because the
judge is too busy to hear it, then because we
came -- then came before the council. We didn't
go back again and ask for an injunction.
Because quite fra"hkly we thought, and still
think, you guys are the ones to do the right
thing. We don't think the future of Bal Harbour
belongs in the hands of the Court. We don't
think the future belongs in the hands of the
judge that maybe drives through Bal Harbour once
in a while on his way to Sunny Isles. We thing
the future of Bal Harbour belongs in your
hands.
Now, the last, but certainly not least,
or last two points. They talk about this, well,
it was unanimous. Even if you eliminate Boggess
and Olson, it was unanimous. We don't know
what, first of all, this just didn't come up
before a vote. There was a planning meeting.
There were things that were done. There were
meetings. There were discussions. What
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participation did Boggess and Olson have in
guiding those proceedings? What participation
did they have in pushing this through? We don'
know. The main reason we don't know is because
as someone here said this morning, I think one
of your council, those tapes are missing. We
can't find those things. We tried to find them
long before they did. Believe me. We tried to
find them when I"first got involved in this. We
knew they were missing. It was no surprise.
Since we don't know what they said, how can they
come forward and say it must have been kosher.
Must have been okay. Finally, with the
unanimity point, talk about taken for fools. Is
anybody really going to sit here and say that
there's a jury of six people and the foreman and
one other juror had been bought off, that is
okay if the other jurors, you know, it has to be
a unanimous verdict, so if they find the guy
guilty or not guilty, it's okay because only two
of the jurors were bought off. Is that due
process? Is that what this country is about?
Is this what your going to do? Does that past
the smell test?
We think, again, I think it needs to be
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1 made very, very clear. Forget about the
2 lawsuit. Forget about the lawsuit. It's my
3 lawsuit and I'm telling you forget about it.
a It's Doug's lawsuit. I'm telling you on his
5 behalf, forget about it. You must decide this
6 independently now that you have this before you
7 whether or not this is right for the citizens.
8 And if you decide and you deny that zoning and a
9 court somehow later on forces you to do it, you
10 have done everything you can to protect the
11 citizens and you have upheld their wishes, if I
12 am correct about what their wishes are. Don't
13 cave in to these people. Thank you.
14 MAYOR HIRSCHL: Yes, ma'am?
15 MS. CARR: I would like to say a couple
16 words, if you don't mind.
17 MAYOR HIRSCHL: Please move to the
18 podium, please. And if you would just swear her
19 in.
20
MS. HORTON: Yes. Raise your right
21 hand. Do you solemnly swear to tell the truth,
22 and nothing but truth, so help you God?
23 MS. CARR: I do. My name is Ruth Carr.
24 I live in the village. I have lived here -
25 MAYOR HIRSCHL: May we have your
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address?
MS. CARR: My address is 44 Sal Bay Drive
and 74 Bal Bay Drive. I have two residences.
My husband decided if I build a new house and he
5 doesn't like it, he will live in the old one. I
6 will live in the new one. Thank you.
7 When I moved into the neighborhood, I
8 moved in because it was a very beautiful area.
A friend of mine,' who was a realtor, said to me,
10 Ruthie, I have got a great piece of property for
11 you. I went and looked and I said, well, I only
12 built two houses before, I would like to build
13 another one and that is what we did. We live
14 here. I don't cast any aspersions on anyone or
15 anything. All I know is how I feel.
16 My son-in-law was a city planner,
17 Norfolk, Virginia. Came down here, married my
18 daughter, and gave all that up and went into the
19 produce business, which we were in before we
20 retired.
21 The ideal in a city for any planner is to
22 build high inside, not outside. You are
23 supposed to allow the breezes to come in. You
24 are not supposed to block them. Miami Beach,
25 where I lived before, has a canyon. Miami Beach
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1 is all messed up because I don't know what
2 happened on those city councils. I know a lot
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of people that served on it. I served on a lot
of their boards.
All I'm saying is my feeling is when you
have something beautiful, you know, there was
7 that expression somebody said, oh, I saw this
8 gorgeous piece of land. It's beautiful. The
birds sing and the animals are here and all of
10 that is going on. It's so beautiful. Let's
11 develop it.
12 That's all I have to say. I don't
13 believe in developing any more than is
14 developed. We don't have enough greenery in our
15 area. And all these wonderful attorneys who are
16 speaking here, I think they have a little
17 interest at heart. I think that when their
18 builders build these high-rises, I guess they
19 make few bucks at it. Thank you.
20 MAYOR HIRSCHL: We're coming out of
21 woodwork now. Come on down. Your name and your
22 address and we need to swear you in, please.
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MS. HORTON: Do you solemnly swear to
24 tell the truth
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help you God?
and nothing but the truth, so
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1 MS. THOMPSON: I do. My name is Patricia
2 Thompson. I live at 10185 Collins Avenue in the
3 wonderful City of Bal Harbour. I'm beginning to
a wonder if there is a hidden gold mine on that
5 piece of land. I cannot imagine why these
6 people are fighting so strongly for this piece
7 of land in view of the fact that everybody
8 around them doesn't want them there. What is so
special about thPs piece of land that they can't
10 let it be? We don't want it. Don't they get
11 the message? Don't they understand that nobody
12 in the vicinity is going to wish them well, want
13 them here? I just do not understand what is so
14 damned important that they go over the wishes of
15 the village council, I hope, over the wishes of
16 the people in the vicinity and still fight like
17 this. I just -- it's beyond my comprehension.
18 Please protect us.
19 MAYOR HIRSCHL: Is there anyone else who
20 would like to speak on this topic right now?
21 Everybody who wants to speak, please come up
22 here now and we'll swear you in at once and we
23 can get through the portion of our council
24 meeting. Name and address.
25 MS. REBURGE: Do I have to be sworn in?
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1 MAYOR HIRSCHL: Yes.
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MS. HORTON: Do you solemnly swear to
tell the truth and nothing but the truth so help
you God?
MR. REBURGE: Yes. I'm Lucille Reburge
(phonetic). I live at 165 Biscayne Drive. I
have been a resident of Bal Harbour for 28 years
and have enjoyed using the Bal Harbour Club.
Our property, the' club property is the only
piece of open property in Bal Harbour. Every
city along the whole line from Miami Beach and
Surf Side has their little club on the ocean and
all -- even Golden Beach. And Aventura is
building open spaces. And even our little town
Surf Side north of us has reserved property for
the people. I think our council should
recognize that fact that we need the open space
and that we should maybe have a bond issue or
something like that and the city -- the Village
of Bal Harbour buy it. Thank you.
MAYOR HIRSCHL: Mr. McDowell.
MR. McDOWELL: Your citizens seemed to
have overlooked one thing as they spoke.
UNIDENTIFIED SPEAKER: Can't hear you.
MR. McDOWELL: Forgive me. Your citizens
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1 have seemed to overlook one thing for a year and
2 a half of proceedings as they have spoken to
3 you, and that is, on your behalf, this is not a
4 voluntary act. You already denied the
5 application. You took it to court and you
6 lost. And you appealed it and you lost. And
7 your village attorney evaluated it and indicated
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you there was no further appeal available.
You had done everything you had available for
10 you to do. You don't have to apologize to your
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constituents if the Court ordered you to do
12 something and the Court had ordered you to do
13 something.
14 I ask you to think clearly whether any
15 one of the members who have spoken to you would
16 ignore a court order if it was directed at
17 them. This is directed at the corporate body of
18 the Village of Bal Harbour. You have done a
19 yeoman's job for those who would oppose this
20 application. The Court has now said it's time
21 to rezone the property. I know it's not a
22 voluntary act. We understand that. I would ask
23 you to follow the court mandate.
24 MAYOR HIRSCHL: Thank you.
25 MR. RUDOLF: My last word on the
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subject. Please remember one thing --
MAYOR HIRSCHL: Name again, please.
MR. RUDOLF: Douglas Rudolf, 312 Bal Bay
Drive. The Court was specific in its order, and
you can rest assured that the Court did not
order you to grant the zoning. If the Court had
ordered you to grant the zoning, we wouldn't be
here today going through the process again. If
these gentleman believed this Court ordered you
to grant the zoning, they would have gotten the
piece of paper that we talked about. The Court
told you that you didn't have substantial
competent evidence to deny, and to go back and
redo it. And you are back redoing it. You are
going through the process since the first
reading that you passed it on, newly discovered
evidence coming in, and now that is before you.
They can cry until the cows come home, but the
zoning's not been granted yet and hopefully
never will be. Thank you.
MAYOR HIRSCHL: Is there anyone else,
besides this young lady, who would like to come
testify on this topic? Quite frankly we are
getting tired of this piecemeal. You need to
come up now and be sworn in.
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MS. HORTON: Do you solemnly swear to
tell the truth and nothing but the truth, so
help you God?
MS. WHITEHEAD: I do. Priscilla
Whitehead. Ten year resident of Bal Harbour,
formally the village, now Kennel Worth. Just
two things. This attorney talked in terms of a
smell test. I also would suggest perhaps an
applause test. Iti have heard responses from the
citizenry that have been decided -- that has
been decidedly one-sided. I offer that.
And then secondly, am I to understand
that when we have even due process, if our
citizens speak out in this country, we have had
over our history some very awful times when
courts supposedly told us to do certain things,
including supporting slavery and et cetera. The
citizens have the right to judgement and for me
to stand -- to sit there and hear that you are
told to do something involuntary, if it indeed
goes against what the citizens want and demand,
then I beg us to find some kind of due process
that enables the citizenry to speak and have
their wishes carried out in some way. I'm not a
lawyer, but is there no way then to simply take
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this then to the citizens of Bal Harbour, rather
than pulling -- (inaudible).
UNIDENTIFIED SPEAKER: Right.
MAYOR HIRSCHL: Okay. Questions from the
5 council at this time? I would like to ask the
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attorney a couple of questions.
First of all, Mr. Weiss, Mr. Richard
Weiss, the Weiss men, we were told that the
Court mandated totius that they did not see the
10 record supporting the council's decision and has
11 come back to us in our process of rehearing is
12 what we are engaged in now. My question is
13 this: If the comprehensive plan was not changed
14 initially in 1987, '88, it was not changed, and
15 it was left as it was from 1946, would we have
16 applicants here for rezoning?
17 MR. WEISS: Any application for rezoning
18 of the property would be inconsistent with the
19 comprehensive plan if it were not changed.
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MAYOR HIRSCHL: Second question. I would
21 like you to shed some light on a conversation
22 you had with me regarding our city planner Mike
23 Miller.
24 MR. WEISS: Okay. We did have a
25 conversation with Mike. We tried to speak with
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everybody regarding information regarding this.
We did speak to Mike Miller because we weren't
certain as to the time frame as to whether
Litavichie and Orange were involved or Mike
Miller. We -- actually Danny Weiss had a
conversation with Mike Miller and you -- it's an
important conversation. I'm going to let Danny
tell you exactly what happened. We asked the
question were you, contacted by Mr. Olson, Mr.
Boggess, did you have any conversations with him
about this. You understand this conversation
that Dan is going to tell you about was in 1995.
MR. D. WEISS: Right.
MR. WEISS: 1995. So it was after this
vote, but here is Dan.
MR. D. WEISS: I spoke with Mr. Miller
about the changes to the comprehensive plan and
he was discussing with me what he was involved
in. That was during the EAR process and in
preparation for the 1997 amendments as well.
As you will recall he also gave you your
staff report at the time of the initial rezoning
hearing. And I believe you -- the specific
question you asked me was the involvement of Mr.
Olson and that time.
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1 MAYOR HIRSCHL: I asked you the
2 conversations that occurred.
3 MR. D. WEISS: The conversation as
4 related to me be Mr. Miller was he felt there
5 was a lot of pressure brought upon him by
Mr. Olson to ensure that the language went
7 forward as proposed, which was the language that
8 Mr. Schulman showed to you. That is the textual
9 change. And that, was the context of the
10 conversation with regard to that specific
11 matter.
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12 MAYOR HIRSCHL: Thank you. This is a
13 very disturbing time.
14 MR. SCHULMAN: Can I ask a question based
15 upon that comment? I think it should not go -
16 MAYOR HIRSCHL: Sure. Sure.
17 I MR. SCHULMAN: Just so the record is
18 clear, because hearsay based on hearsay
19 sometimes gets out of whack.
20 Mr. Weiss, you were the city attorney at
21 the time, at the time the amendment was passed,
22 Mr. Olson was not mayor of the city, was he, the
23 1997 amendment?
24 MR. WEISS: No.
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MR. SCHULMAN: No, he was not.
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MR. WEISS: No.
MR. SCHULMAN: So any discussions that he
may have had regarding that amendment that was
passed by the council was as a citizen and not
mayor, correct?
MR. WEISS: That would be correct.
MR. SCHULMAN: Nothing further.
MAYOR HIRSCHL: Thank you. Today is a
disturbing day foT Bal Harbour and I, as an
elected official, am quite frankly disturbed,
embarrassed. I have spent a lot of years as an
effected official trying to be as honorable as I
can and represent the city as honorably as I
could.
And when -- when we hear that sitting
councilmembers -- when the information was
brought to us, basically via this lawsuit, and
I'm not discussing this lawsuit because it's
inappropriate because it's still ongoing, but
the information, allegations in that lawsuit,
Mr. Boggess made it very clear to this council
at a public meeting that he was an 1/12
proprietor shareholder. He admitted his
mistake. He told us his mistake. He doesn't
think he that he is, as was read into the
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1 record, he doesn't think he necessarily did
2 something illegal, but he admitted his mistake
3 to us, the council.
4 I think when you taint the process, you
5 perpetuate basically bad government.
6 Mr. Schulman taught me a lot about law.
7 I think Mr. Schulman is a very good lawyer, a
8 very good lawyer. I learned back when we had
9 the initial zoning hearings that what the
10 applicant is requesting -- he kept saying this,
11 this always stuck in my mind, the application is
12 consistent with the comprehensive plan,
13 consistent with the plan, consistent with the
14 plan.
15 Now I hear the Court makes the argument,
16 Bal Harbour, you have no choice but to go back
17 and rehear this because we don't see what was
18 there. And now that we know that the Court has
19 based their decision largely on the master plan,
20 it simply is troubling to sit here and view in
21 its entirety what has occurred as not -- as
22 something that has been something less than
23 upright and forthright. There is no way that we
24 would be here today if the comprehensive
I'm
25 sorry, master plan, comprehensive plan. What is
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MR. WEISS: Comprehensive master.
MAYOR HIRSCHL: Comprehensive master
plan -- thanks -- was not altered in 1987,
1988, we would not be having this conversation
here today.
We don't have the audiotapes. I wish we
had the audiotapes. I know as sitting
councilman for 11% years that certainly if a
particular councilperson has a particular
feeling about an issue, they will spend as much
time as they like discussing it, debating it and
influencing, constructively hopefully, consensus
and opinion.
I'm deeply disturbed that the process is
compromised. The process is tainted. The
comprehensive plan is erroneous. It is an
embarrassment, and I hope the Miami Herald isn't
here to publish this. But we have a problem
here and this council needs to right the wrong,
in my opinion. Due process was not served to
the citizens. Legitimate public purpose,
absolutely not. Absolutely not. This was a
railroad job that went undetected until it was
brought to our attention. And you know I'm
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1 not -- I'm not an attorney. Question if it was
2 two weeks ago, ten years ago, whatever it may
3 be, the facts are the facts, and the facts are
a again, I am not commenting on the other council
5 -- sitting councilmember because I don't have
6 any information, but certainly Mr. Boggess was
7 forthright in his discussions with us.
8 I'm greatly concerned, greatly disturbed
9 to push a process. forward under this sort of
10 cloak. It's unacceptable to me as an elected
11 official. Any other comments?
12 COUNCILMAN GORSON: I agree with you.
13 MR. WEISS: Just to sort of frame the
14 issue for you.
15 MAYOR HIRSCHL: Yes.
16 MR. WEISS: What the Snyder case
17 everybody refers to, we discussed this
18 privately, but I will do it for the record,
19 requires you to do is grant the rezoning unless
20 you find that keeping the existing zoning would
21 serve a legitimate public purpose. That is the
22 standard that you are dealing with. So in terms
23 of your conversation that should be the guide
24 that you use.
25 MAYOR HIRSCHL: Okay.
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1 ASSISTANT MAYOR TANTLEFF: May I make a
2 comment?
3 MAYOR HIRSCHL: Go ahead.
4 ASSISTANT MAYOR TANTLEFF: I also want to
5 say that I'm also very disturbed at what we have
6 heard. I also do want to say that I have a
7 great amount of respect for Cliff Schulman. I
8 watch you on TV a lot and at the city meetings
9 and you are an excellent attorney.
10 I do want to say that I do believe that
11 denying this rezoning based upon a master plan
12 which was tainted does serve a legitimate public
13 purpose, and that the process of adopting the
14 initial -- but again., it's important to
15 understand this. I promise you in good faith
16 tl I'm not -- this is not done for the applause or
17 what the residents want. It's being done only
18 on the law. And the law clearly states
19 because -- well, you know, being an elected
20 official, it's a high responsibility, but the
21 law does state you can only base it on what our
22 council says on the Snyder case. According to
23 the Snyder case, that we can deny this rezoning
24 based upon a master plan that I truly believe
25 was tainted in its enactment and that would
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serve a legitimate public purpose. The reason I
say that is you have to look at history.
I thank you, Mayor.
MAYOR HIRSCHL: Thank you. Okay. I'll
entertain any motions at this time.
ASSISTANT MAYOR TANTLEFF: Just upon my
comments, and again, we don't know what will
happen in the future, but I can promise all the
attorneys that nod hing but good faith I'm going
to make a motion to deny the rezoning.
MAYOR HIRSCHL: Is there a second?
COUNCILMAN GORSON: I will second.
MAYOR HIRSCHL: Decision. Roll call
vote.
MS. HORTON: Mayor Hirschl?
MAYOR HIRSCHL: Aye.
MS. HORTON: Assistant Mayor Tantleff?
ASSISTANT MAYOR TANTLEFF: Aye.
MS. HORTON: Councilman Gorson?
COUNCILMAN GORSON: Aye.
MS. HORTON: Councilman Roth?
COUNCILMAN ROTH: Aye.
MAYOR HIRSCHL: Zoning is denied.
(Thereupon the taking of the meeting was
concluded.)
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CERTIFICATE OF SHORTHAND REPORTER
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STATE OF FLORIDA:
COUNTY OF DADE:
SS:
7 I, Catherine Howard, Shorthand Reporter, do
8 hereby certify that I reported the meeting of the Bal
9 Harbour Village on Tue,sday, November 16, 1999; and
10 that the foregoing pages, numbered from 1 to 106,
11 inclusive, constitute a true and correct
12 transcription of my shorthand report of the
13 proceedings.
14
15 WITNESS my hand and official seal in the
-16 City of Miami, County of Dade, State of Florida, this
17 29th day of November 1999.
18
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21 Court Reporter
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r_- OMMIS5i�"_ -:1152
Sr BOS:
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