HomeMy Public PortalAbout2016-12-07 AttorneyClient In The Matter Of Flamingo Way Enterprises LLC case 16-269-AP1
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ORIGINAL
BA L HARBOUR VI LLAGE
AT TORNEY/CL I ENT SESSION
IN THE MATTER OF FLAMINGO WAY ENTERPRISES, LLC v.
14 BAL HARBOUR VIL LAGE
15 CASE NUMBER : 16-269-AP
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BAL HARBOUR VILLAGE HALL
655 96 t h STRE ET
BAL HARBOUR, FLORIDA 33154
WEDNESDAY, DECEMBER 7 , 2016
8 :49 p.rn. -9 :05 p.m.
Taken before Mary G. S t ephenson, FPR, Notary
Pub lic for the State of F lorida
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1 APPEARANC ES :
2 COUNCILMEMBERS :
3 GABRIEL GROISMAN, MAYOR
SETH E . SALVER , ASS I STANT MAYOR
4 DAVID ALBAU M, COUNCILMAN
PATRICIA COHE N, COUNCILWOMAN
5 JEFFREY FREIMARK, COUNCILMAN
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VILLAGE MANAGER :
JORGE M. GONZALEZ
VI LLAGE ATTORNEY:
800 -726 -7007
WEISS SEROTA HELFMAN
CO LE & BIERMAN, P.L .
BY : RICHARD JAY WEISS , ESQ.
JOSEPH SEROTA, ESQ .
SUSAN T REVARTHEN , ESQ.
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1 Thereupon , the following proceedings were had :
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MAYOR GROISMAN: It 's 8:49 . I am calling
this meeting to order .
We are going to do a ro ll . Since he is not
here, I 'll do the ro l l call .
Assis t ant Mayor Seth Salver.
ASSISTANT MAYOR SALVER : Here.
MAYOR GROISMAN : Counci l man Freimark.
COUNCILMAN FREIMARK : Here.
MAYOR GROISMAN : Counc ilman Albaum.
COU NCILMAN ALBAUM: Here .
MAYOR GROIS MAN : Councilwoman Cohen .
COUNCI LWOMAN COHEN : Here .
MAYOR GROISMAN: Mayor Groisman .
I am here.
The time is now very late , 8 :49 p.m . We
are about to have an attorney/client session in
accordance wit h Florida Statute 286 .011 rega rding
the litigation styled
MR. SEROTA : It should be on the agenda.
MR . WEISS : Case Number 16-26 9-AP, Flamingo
Way Enterprises , LLC versus Bal Harbour Village .
MAYOR GROISMAN : The session i s estimated
to last ten mi nutes, and the follo wing people will
be attendance at this meeting : Myself, Mayor
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Gabriel Groisman, Assistant Mayor Seth Sa l ver,
Councilmember Freimark , Councilmember Albaum,
Counci l member Cohen, the Vil l a ge Manager Jorge
Gonzalez, Village Attorneys Richard Weiss, Joe
Serota and Susan Trevarthen.
These proceedings will be recorded by a
cer t ified court repo rter and, at the conclusion of
all l itigatio n discussed, the transcript will be
made part of the p ublic reco rd .
All those individuals who I have not named
should leave this room a t this time .
(The doors were open and not seeing any
public .)
MAYOR GROISMAN : Because of the overlap of
the two issues , let 's please just quickly. I have
to l eave.
MS. TRE VAR THE N : Okay. So I will jump in
and I know Jorge is coming back.
MR. GONZALEZ: I am here.
MS. TR EVAR THEN: Th is is simpler. We
rece ived a request for what is called a plat
waiver . It is a little bit of a mi snomer. I t
a procedure by which you have a simplified plat
approva l .
They wanted to create three residential
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l ots in the areas that were pointed out prev i o u sly
at the no rt h end of the boat basin , and af t er a
couple of, actually, I thi nk t hree hearings .
MAYOR GROISMAN: Righ t . They wan t to make
one house here , a second one here, and a th i rd one
here.
The y previously, a few years ago, got the
same rep l at for th is property.
MS. TREVARTHEN: They originally app li ed
for the three and th en they came back with a
modified p l an for two and that wasn 't approved.
So t hey came back with their p la n for three and as
of July, t he counci l voted not t o appro v e that .
So wh at happened was they chal l enged that
decision , and they said that we didn 't have a
basis to deny that approval.
The bases of the challenge was that what
they were seeking to do was consistent with t he
law, it was consistent with t he comp plan, and
that there was no basis to say no because of the
absence of open space concurrenc y, which are the
park i mpacts of new houses in t he community .
So t h at me ans they had to f i l e a piece of
paper. It 's cal l ed petition f or cert.
MR . WEISS : Hold on one second.
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Before the hear ing, I spoke with all the
councilmembers . Patricia , I don 't think you voted
on this, did you?
ASSISTANT MAYOR SALVER: No , she left.
MR . WEISS: But I know t hat I spoke with
all the counc i lmembers as to our v iew because on
one s i de you had the Imbesis and the i r attorney ,
and then some of the residents, Mr . Cohen , I
think, hired Jeffrey Bercow , who is a land use
attorney for the Beach, and he had made some
arguments.
The Imbesis argued tha t they were entitled
to this as a matter of law. Mr. Bercow on behalf
of the Cohens made some arguments that they were
not en t it l ed to it.
The council no t publicly, but privately
asked how we felt about these arguments , and our
answer was that Mr. Bercow's arg uments were not
frivolous or not without merit , but we felt that
the Imbesi argument would u ltimately win . That if
t hey were going strictly by the law, that the pla t
should be granted .
MS . TREVARTH EN : So an Imbesi, a lawyer and
an expe r t , yes, we are fine . We have a resident,
Bercow and an expert, no , we are not fine .
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MA YOR GROI SMAN : Who is the expert they
hired?
MS. TREVARTHEN: No. Imbesi was r elying on
the recommendation of approval. I apologize.
MAYOR GROISMAN: By the planner?
MS. TREVARTHEN: Yes .
MR. WEISS: So the council, for whatever
reason, decided not to approve th i s.
MS. TREVARTHEN: That wasn't the challenge,
wh i ch is --
MAYOR GRO I SMAN : Let me j u st very qu i ckly
say , I actually made a motion to approve it
subject to various a mendments .
MS . TREVARTHEN : That is correct .
MAYOR GROIS MAN : Because what they were
asking for from my perspective as a whole was
imp roper . Jus t a few t h ings like havi ng the
marina as part of the club , marina slips behind
the properties of the home with easements through
them , so that way each property would have a dual
prop erty use as a private club. I n one lot , you
would have t h e s lips. Li k e if you look at t h e
picture , the house here would have slips behind
it . Except t hose sl i ps wouldn 't be the i rs. I t
would have an easement and they could run their
____________ _J
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business behind t heir house or whatever, their
operation behind someone else 's house.
From just my reading of t he zoning code ,
which may or may not govern, it seems like you
can't do that. So I carved t hat o u t, things like
t hat . When I did t ha t , which I t hought was
ext ending an o l ive branch, he stormed o ut of the
public mee t ing .
So I withdrew the mot ion and made a mot ion
for denial because he wa l ked out. He didn 't want
it .
MR. WEISS: So the limited question for
this executive session is that part of the --if
you don't mind me jumping in?
MS. TREVARTHEN : That i s okay. I was just
go ing to tell them where we are in the liti gat ion ,
but if you want to go first .
MR. WEISS: You can. Where we are in the
l itigation.
MS . TREVARTHEN: All the papers are filed.
Oral argument was requested. No ruling has been
made. So the re is nothing happeni ng. But if oral
argument is awarded , there would be something
happening .
MR. WEISS: Our work is really done other
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than preparing for oral argument .
The reason you are here as part of this , we
separated , but part of the settlement agreement i s
that he wil l be granted --Jorge, why don 't you go
through what is in the sett l ement agreement
dealing wi t h th e plat issue .
MS . TREVARTHEN: Paragraph 14 .
MR . GONZALEZ : Generally, t he agreement was
almost exact l y consistent with the mot i on that was
made, t h e mayor mentioned .
MS . TREVARTHEN: We went by your motion .
MAYOR GROISMAN : The exception .
MR . GONZALEZ : The exception that we want .
The o n ly th i ng being that the easement part that
the mayor was mentioning about the properties
behind that t h ird lot , we basically sa i d it 's a
private matter . Whoever the prospective buyer
might be , he would negotiate wit h the seller ,
being Joe, to ei t her buy the easemen t out or buy
the slips out or in some way resolve that issue
a p r ivate matter and not necessar i ly have the
as
village involved in it one way or t he other . It 's
dollars and cents . Whoever was going to
potentially buy that would e i ther get a reduct i on
in price or buy it out if they don 't want those
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folks beh ind their backyard . Otherwise , the p l at
waiver would be a granted, th r ee lots . They would
have t o go through the architectura l review board
and is required of a home. That the easements
t h at are requ ired for our utility project for the
entire t y of t he marina property woul d be granted .
Is there anything else that I am missing?
MS . TREVARTHE N: There would be a
restrictive covenant on the rema i nder. So even
with t hese lots starting to peel in the bottom of
the crescent over there, there i s still going to
be green space left between that and the former
wa i ve r of p l at over by our faci l ity .
MAYOR GROISMAN : The reason why that is
important
MS . TREVARTHEN : So the covenan t would say
no more after that.
MR. WEISS : That is t h e v iew corridor.
MAYOR GROISMAN: If you look here, that is
the view corridor. They are building houses here
and here and the house th rough. The re has always
been a concern that they are going to bu ild
something here. It 's very difficult fo r them t o
because they don't have the setbacks , but it only
takes t hree votes to get anything done in this
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town .
MR . GONZAL E Z : Or they could po t en tially
fil l the basin and develop .
MAYOR GROIS MAN : They cou l d poten ti al l y
fill t h e basin. So there is a lot of concern
b e cause l i ke wh at they do in the basin , cor r ect me
i f I 'm wrong , does n't even go to us. It 's goes to
the Miami-Dade coun cil .
MR . GONZALEZ : DERM .
MAYOR GRO I SMAN : Or DERM.
MS . TREVARTHEN : There are other agencies
invo l ved .
MAYOR GROISMAN : Yes , oth e r agencies to do
the sl i ps . So there has always been concern ,
real l y , from everybody because this v iew corrido r,
wh i ch was supposed to go from Ba l Bay , which is
the whole of Bal Ha r bour . So the council , I don 't
know , six years ago or wh ateve r approved a tower
·to go where t he club is supposed to b e a nd
eve ryone i s a fr a i d t h e same thing wil l happen he r e
eventually . So that is why the covenant here was
always an important element , that i f we are going
to resolve something --
MS . TREVARTHEN: And it wouldn 't just b e a
covenant . It would a l so be a site p l an for that
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property . So we would have two different ways of
enforcing it; a private recorded covenan t ,
reco r ded in the public record, as well as a l and
use approval that would be a site p l an governing
that .
They wou l d also seek from us a statement
t hat they meet concurrency . How we wou l d set it
up is how we always sett l e land use litigation .
We can 't just sign a contrac t to give them a
bu i lding permit . That vio l ates law. Th at i s
inva l id and just canno t h appen .
So the s e ttlement ag r eement would say , he re
is what we want to do , here is what we think we
are go in g t o do . The village would go off and
have the proper hearings to do this publ ic inpu t
and so forth .
If we decide in our discretion as the
village, as the govern i ng body of Bal Harbour to
sa y no , then t h is settlement agreemen t just goes
poof.
COUNCILWOMAN COHEN : Yo u u n ders tand t h e
r e ason to b lo c k ?
MS . T REVAR T HEN: But it means you are going
to have to make two votes, and they are both in
the public .
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MAYOR GROIS MAN: Okay. I don 't know if
anyone has --does anyone have any questions
regarding the terms of the plat issues that a r e in
the agreement now , which we have already sa i d we
are not going to sign as is. Jorge is go i ng to go
bac k and negotiate more . Are there questions
about that any of you have to Jorge?
COUNCILMAN ALBAUM : No .
MR . WEISS: Basica ll y, assuming that the
other stuff is worked out , this counc i l i s
genera l ly okay conceptually with approving the
plat that was r equested?
MAYOR GROISMAN: Yes. So you know,
negotiating back, the owners of these two homes,
which is David Wolf and Howard Cohen . Then Doug
Ruff r eally hasn 't been invo l ved with thi s ye t ,
has his own issues, which took h im out of the
picture. So th ese two homeowners have been --
MR. GONZALEZ: They are t he most obvious l y
affected.
MAYOR GROISMAN: --call i ng me comp l aining ,
trying to get t hings done. They did not file
th i ngs to be i n the lawsuit, much to my dismay.
Because I told them, you have an issue . They
filed the suit. Here is your opportunity to go in
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and defend. For their own reasons, really private
kind of reasons , they didn't wa nt to go in to
public lawsuits. So they haven 't done t hat. So
they were sort of l eaning on us to do something.
It 's not, from my perspective, to do something for
two people is not really appropriate. Specially
when our village attorneys are telling us
specifically that a plat here is sort of
appropriate .
That being said, there was an attempt to
get them to go back to two lots . The reason why I
thought that was fair is because it's less . So it
would be a little bit less dense.
COUNCILWOMAN COHEN: And no depth .
MAYOR GROISMAN: That was no depth.
MR. GONZALEZ: He refuses. I told him that
t he owners may approach him and we will if they
among themse lves work out an agreement, that we
would certainly welcome two lo t s.
MAYO R GROISMAN : For the disclosure
COUNCILWOMAN COHEN : He would rather have
nothing and go i n to a lawsuit f or a few years than
accept two? I am just asking.
MR. GONZALEZ: Yes . Because he thinks that
he has a solid case.
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MAYOR GROISMAN: So Howard Cohen and David
Wolf came to my house last Sunday morning , two
Sunday mornings ago to sort of talk through the
i ssues and basically where I ended with them i s
either you get in t he lawsuit to p ush your thing ,
your posi t ion , which doesn't l ook l ike they are
willing t o do, I am not sure, or talk to Imbesi
and see if you can work something out , which is
what J orge i s alluding.
I did send a text to Imbes i on behalf of
Cohen, who I don 't know by the way. I met that
Sunday morning for the f i rst time somehow . His
wife was supposed to call Imbesi. I haven't heard
anything.
ASSISTANT MAYOR SALVER : Where is the third
lot at?
MAYOR GROISMAN : The third lot ends --so
you know , my wife's uncle lives in this house .
Imbesi for some reason thought t hat the reason why
I was giving him any hard time was because of him.
I'll say it now. There is a court repo rter
her e. My wife 's uncle doesn 't care about these
properties. If you look at t h e property lines of
h is lots, it ends at the street where his house
starts and the whole first part is sort of thin .
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MR. GONZALEZ : They are narrow.
MAYOR GROISMAN : You can't tell from this
picture because of the angle, but it really widens
here. So most likely it would be a ya r d or
something . He doesn't love it , but he's no t
involved in it .
MR . GONZALEZ : It is set back and i s
governed by some setbacks on t he easement.
Probably , that is where the pool or backyard will
be.
MAYOR GROISMAN: In case some peop l e view
the situation, nobody should think that the reason
he is not building here has anything to do with
whose house it is, but i t 's j ust that the p roperty
gets too narrow . You can 't bui l d a house and meet
the setback requirements both f rom t he water,
which are pretty significant , 30 feet or something
from the water and then 30 f eet or whatever it is
from the street . You end up with nothing.
MR. GONZALEZ: Right now , unbu i ldable.
MAYOR GROISMAN: They are not buildable .
That is the reason.
MS. TREVARTHEN: Whi ch is why he is wi l l i ng
to say no to building.
MAYOR GROISMAN : Okay . So does anyone e l se
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have any comments for Jorge? He sort of has his
direction .
MR. GONZALEZ : We will get back to you on
whether he outright rejects it or is willing to
negotiate on it. We will get bac k to you .
MAYOR GROISMAN: The attorney/clien t
session has now been terminated and the meeting is
now open and the pub lic is invited to r eturn for
any further proceed in gs or matters.
(Thereupon , the proceedings were concluded
at 9 :05 p.m .)
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C E R T I F I C A T E
I , Mary G. Stephenson, FPR , State of Florida at
Large, certify that I was aut ho rized to and did
stenographica l ly report the fo regoing proceedings and
that the t ranscr i pt is a true and complete record of my
stenograph i c notes .
Dated th i s 27th day of December , 2016.
Mary G. Stephe nson , FPR
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