HomeMy Public PortalAbout1999-10-19 Regular Council MeetingBAL HARBOUR VILL AGE
COUNCIL MEETING
October 19, 1999
9665 Bay Harbor Terrace
Bay Harbor Islands, Florida
1 :00 o'clock p.m.
PERSONAL TOUCH REPORTING, INC. ( 305) 944-9884
MAYOR ANDREW HI RSCHL
ASSISTANT MAYOR DANIELS . TANT LE FF
COUNC I LMAN JAMES E. BOGGESS
COUNCILMAN PEG E . GORSON
COUNC ILMA N SY ROTH
ALFRED J . TREPPEDA, VILLAGE MANAGER
RICHARD WEISS, ESQ.
STEPHEN JAY HELFMAN, ESQ.
DAN WEISS, ESQ.
WEISS, SEROTA & HELFMAN, P.A.
JEANETTE HORTON, Village Clerk
ELISSA WRIGHT, Deputy Clerk
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THEREUPON, THE FOLLOWI NG PROCEEDINGS WERE HAD:
MAYOR HIRSCHL: Good afternoon,
ladies and gentlemen. This is t he regular
Council meeting of the Bal Ha rbour Village
Council, October 19th, 1999.
A roll call , please.
MS. HORTON: Mayor Hirsch?
MAYOR HIRSCHL: Here.
MS. HORTON: Assistan t Mayor
Tantleff?
ASSISTANT MAYOR TANTLEFF: Here.
MS. HORTON: Councilman Boggess?
ASSISTANT MAYOR BOGGESS: Here.
MS. HORTON: Councilman Gorson?
ASSISTANT MAYOR GORSON: Here.
MS. HORTON: Councilman Roth?
ASSISTANT MAYOR ROTH: Here.
MAYOR HIRSCHL: If we could all now
stand for the Pledge of Alliance.
Elissa, would you please lead us?
(Thereupon, the Pledge of Allegiance
was recited.)
MAYOR HIRSCHL: The first order of
business is the approval of minutes from
September 15th, 1999, our regular Council
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meeting.
I ask if you've had the opportu nity
to review t hose minutes a nd if so, a
motion to approve them.
ASSISTANT MAYOR ROTH: I make a
mot ion to approve the minutes.
MAYOR HIRSCHL: Is there a second?
ASSISTANT MAYER TANTLEFF: Second.
MAYOR HIRSCHL: Corrections?
(No response.)
MAYOR HIRSCHL: All in favor?
THE COUNCIL (IN UNISON): Aye.
MAYOR HIRSCHL: Also, September 15th,
1999, our second budget hearing. A motion
to approve those mi nutes.
ASSISTANT MAYOR ROTH:
mot ion .
I make such
MAYOR HIRSCHL: Second?
ASSISTANT MAYOR T ANTLEFF:
second.
MAYOR HI RS CHL: Discussion?
(No response.)
I'll
MAYOR HIRSCHL: All in favor?
THE COUNCIL (IN UNISON): Aye.
MAYOR HIRSCHL: Those minutes are
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approved.
The first order of business will be
an ordinance, but before we get to the
ord i nance, there has been a development
which we would like to certainly brief you
all about .
I have asked the City Attorney to
make that announcement, please.
MR. WEISS: As we have briefed you
about individually --Steve He lfm an has
FROM THE AUDIENCE: We ca n't hear
him. Sorry, we can't hear him.
ASSISTANT MAYER T ANTLE FF : T alk in
the mike.
MR. WEISS : As we briefed you about
ind ividua lly, there has been a lawsuit
filed against the Village seeking to
challenge portions of the Village 's
Comprehensive Master Plan .
we received the lawsuit on Thursday.
As we've also indicated to you, we are in
the process of ana l yzing it and obviously
we will bring you up to date as we know
month about the lawsuit and understand
exactly what they're asking for and what
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the legal issues involved are.
MAYOR HIRSCHL: Okay . Procedurally
due to the fact that this lawsuit
challenges our Comprehensive Plan, it is
more than appropriate to ask our City
Attorneys to investigate the allegations
that have been made and report back to us
as a time --a certain amount of time so
we can discuss our options and the merits
of that lawsuit.
Based on this laws uit and the fact
that there is a question regarding the
Comprehensive Plan and that the Ordinance
itself discusses the merits of this
passage of zoning on the Comprehensive
Plan, I would like to make a motion to
defer the second reading today at this
time.
Is there a second.
ASSISTANT MAYOR ROTH: I second.
MAYOR HIRSCHL: Discussion.
I thi nk it's important that our City
Attorneys, as we said, look at the merits
of this lawsuit. I think 30 days i s an
adequate amount of time for you to come
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back to us at a public hearing and at the
next public hearing, at our next Council
meeting, I assume you'll report to us as
to the merits about these quite serious
allegations.
MR. WEISS: Depending upon what our
research shows, we may choose to do that,
report back to you as to some of the
merits of the lawsuit and so forth in
Executi ve Session if we feel that's
appropriate. We may do it individually.
we may do it at a public meet i ng as we see
what our research shows.
MAYOR HIRSCHL: Okay.
MR. WEISS: The next meeting is
MAYOR HIRSCHL: The t hird Tuesday of
November.
MS. HORTON: November.
MAYOR HIRSCHL: We'll give you a
date. Will you give me a date for that,
please?
VILLAGE MANAGER TREPPEDA: The 16th .
ASSISTANT MAYOR ROTH: Novemb er 16th.
MR. WEISS: Mr. Mayor, if you 1 re
going to do that, I think what we should
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do is just for the purposes of
advertising, we should open up the public
hearing, continue the public hearing until
the date specific, and that would be the
way so that --as we have already done the
extensive advertising and so forth for the
hearing.
MAYOR HIRSCHL: Okay.
MR. WEISS: So there should be a
mot i on to --open up the public
hearing --read the ordinance and open up
the public hear i ng .
MAYOR HIRSCHL: Okay.
MS. HORTON: An ordinance of t he
Vil l age of Bal Harbour, Flor ida providing
for rezoning from the PC Private Club
zoning District to the OF Oceanfront
Zoning District of the Beach Club site
shown as Tract A on the plat of Oceanfront
Section of Bay Harbor recorded in plat
book 44 at page 27 of the public records
of Dade County, Flor ida located at 10201
Col l ins Avenue in Bal Harbour amending
Section 21-78 district map, Section 21 -147
bounda ry designation and Section 21-282
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boundary designation of Chapter 21, Zoning
of Bal Harbour Village Code to reflect the
rezoning of the property as described
above; providing severability; providing
an effective date.
MAYOR HIRSCHL: Okay. Is there a
motion to continue this public hearing?
MR. WEISS: Open it up.
MAYOR HIRSCHL: Let's open up the
public hearing.
Is there a motion to continue?
MR. SCHULMAN: Mr. Mayor, may we be
heard?
ASSISTANT MAYOR ROTH:
motion.
I make a
MAYOR HIRSCHL:
tha t mo tion?
Is there a seco nd to
ASSISTANT MAYOR TANTLEFF: I'll
second.
MAYOR HIRSCHL: Discussion?
ASSISTANT MAYOR TANTLEFF: Well, can
we discuss why we should continue it?
MAYOR HIRSCHL: There's a motion and
a second on continuance. You may discuss
the merits as to why you want to cont i nue
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it, sure.
ASSISTANT MAYOR T ANTLEFF: Mr. Mayor,
I just want to take a brief moment.
I asked a couple of questions to our
City Attorneys which honestly in good
faith, they do not at this time have
answers to;
For example, dealing with what if the
property is rezoned a nd according to the
mandate from the Circuit Court and then we
find out that this lawsuit that has been
filed, in fact, throws out that section of
the Master Plan which called for this
piece of property to at some point in t im e
be designated Oceanfront, what then is our
liability to the person that had the
property rezoned to Oceanfront?
If they start bui ld ing and that part
of th e Master Plan is then thrown out,
then what do we do?
J ust to protect our VLllage , I would
I agree with thi s motion . It is not asking
for a lo t o f time and I can promise
everyone it i s done in good faith.
MAYOR HI RSCHL: Thank you .
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For the benefit of the pub lic, this
lawsuit is a public document. We can
certainly provide you copies of it , if you
so desire.
The allegations are of such a serious
nature that th ey require us to do our
homework to ascertain if these allegations
are legitimate.
I think that in all good faith for
all parties concerned, it would be
beneficial to look into that matter.
Now, Mr. Schulman, if you would lik e
to speak on the continuance, you're
welcome to, but we are not going to open
t he hearing for additional testimony at
this time.
MR. SCHULMAN: Mr. Mayor, I would
like to speak on two issues, one directed
toward that and one directed to
MAYOR HIRSCHL: Do we need to vote
for a continuance first?
MR. WEISS: Hear Mr. Schulman.
MR. SCHULMAN: Cliff Schulman, 1221
Brickell Av enue, representing Ava
Development.
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I would like to speak to the motion
for cont i nuance as we l l as the item that
was brought to my attention earlier today
and that was:
It i s my understanding t hat a meeting
was conducted yesterday, October 18th,
1999 at 12:00 p .m. and was advertised in
the Ne i ghbors section on Sunday, October
17th, 1999 to discuss an unknown subject
matter because the subject matter is not
disclosed as part of this notice and that
the notice was a closed session of the
Village Council, at which we believe in
good fa i th was discussed either the
litigation which is presently pending
and/or its impact upon the Ava lawsu i t and
the club lawsuit which is the subject
matter of today.
We believe for purposes o f the record
j ust to make it clear and to your City
Attorney and whatever continuance you
choose to grant may further research this
and advise you of your potential
liabi lities, that that was an illegal
meeting in the shade and out of the
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sunshine which in any way discussed either
directly or ind i rectly any of the matters
that are before you today through the
ordinance which i s before you since t here
is no pending li tigation in the Ava Club
vs. Ba l Harbour matter.
In the event, however, that you only
discussed --and only the t r ansc rip t which
I'm sure was made yes t erday at that
mee t ing will disclose and we wi ll request
formally that those t r anscr i pts and any
others that you have be given to us, wi ll
disclose that this ma t ter was discussed.
The notice itself is defective. It
does not i ndicate the subject matter that
you were d i scussing.
By state law, it must do so.
Therefore, the meeting that was conducted
yes te rday to either discuss this ordinance
or the previous laws uit or the pending
lawsuit was defective and we believe that
we would be entitled to that transcript.
Number two --that's just beg i nn i ng
to say hello.
MAYOR HIRSCHL: It's a nice start.
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MR. SCHULMAN : Hello.
You're under an injunction from the
Court. That is the mandate. The mandate
is a fancy word for the Court basi ca lly
telling you, do it.
The Court told you to zone this
property according to i ts previous finding
tha t this Council, whether in good faith
or otherwise, arbitrarily and capriciously
and wi t hout proper ev idence be fore it
denied the rezoning which was sought.
That took over a year for the Cou r t to
eventually make that decision.
You took it to the Third District
Court of Appeal. You lost summarily at
the Third District Court of Appeal . They
wouldn't even hear your case.
So in November of 1998 let 's coun t
it now --11 months, almost 12 --you were
ordered by the Circuit Court to act and
z o ne this property accordingly.
A few months ago, approximately three
or four I don't remember the exact
date --you conducted a hearing on first
reading.
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At that time, you decided to delay
another three or four months until i t was
no l o ng er summer season and more people
could be h ere, over our vigorous
objections.
If you remember at that time , Mr .
Mayor and members of the council, that you
were again delaying and deferring this
mat ter and that that was i n vi olation of
t he Court ordered manda tes .
Now, with a lawsuit h avi ng been filed
10 mont h s after the mandate was issued i n
this case, a lawsuit which has nothing
necessarily to do because it is mer e ly
allegations, no t hing more.
The only lawsuit which has any
meaning today and which has any meaning in
30 days is the laws u it where you were told
and ordered by a Court of competent
jurisdiction to act.
Whether Mr. Rudolph in his litigation
has any species of truth to it , which we
believe i t does not --it is nothing more
t han a frivilous lawsuit --that will be
proved to be so ultimately.
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There is only one judicial fact . The
lawsuit is meaningless. It is words on
paper, not so artfully drawn, while the
Court order which looks you in the eye and
te l ls you that pursuant to your duty to
uphold and defend the Constitution of the
United States and the State of F l orida and
abide ·by the laws, you are to act and you
are to have acted a lot sooner than 12
months ago.
So I'm not particul ar l y surprised
that we 're go i ng to get delayed again, but
I wi ll put you on notice, as I did before,
that each and every day that this
Commission having been put on notice again
disregards this Court's order to act
we --with the utmost of respect, but
nonetheless having to preserve our
client's r i ghts --wil l avai l ourse l ves of
any and all remedies that are available
against the Commission, against the City,
under the 1983 Federal Constitution which
guarantees due process of law even to mere
property owners and not necessarily mere
residents --the Florida Constitution
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protections and, if necessary, the Bert J.
Harris Act.
Other than that, we are here. We are
ready, willing, and able to go forward.
We would incorporate into th is record all
of the prior proceedings in the Court
order. We have with us transcripts to go
i nto this record.
we have already told your counsel for
the City that we believe you have only one
act to do today, and that is not a
continuance.
You must abide by a lawf u l Court
order. Otherwise, you may conceivabl y be
in contempt.
So with the utmost of respect,
vacation's over, in more ways than one.
Time to pay the piper. You took your
shot with the utmost of respect --and
you lost, and the Court told you that in
no uncertain terms.
Please, the time to do t he right
thing is today and the right thing is not
a continuance. It's merely a continuation
of attempts to dilly and dally this matter
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to death and think it 's going to go away.
It's no t going away, nor are the
potential consequences to the City .
Thank you.
MAYOR HIRSCHL: Thank you, Mr.
Schulman.
Mr. McDowell?
MR. McDOWE LL : For the record, my
name is Carter McDowell, offices at t he
2500 First Union Financial Center. I'm
here representing the club.
We would also urge you to move
forward to rezone the property today. We
think t he Court mandate i s clear . We
t h ink that the lawsuit which waited to be
filed until a few days before this hearing
today, the timing was clearly intended to
delay.
There is no quest ion that Mr. Rudolph
participated in the or i ginal hearings
almost two years ago now and has been very
much aware of this process. He could have
easily filed on a timely bas i s if he had
an additional issue.
We believe that his complaint has no
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merit and that it will be overturned. It
also seeks an emergency injunct i on and the
30 day delay may, in f act, cause further
damage to the club.
Every day of delay causes damage to
t he club and if by continuing t oday, you
allow him an oppor t unity to ge t an
emergency injunction which would then
fur t her delay us, I assure you that that
will further damage the club and
ul t ima t ely we will be back .
We don't want to continue t his in an
adversarial way. We believe the time has
come to stop the adversarial proceed i ngs
and to see i f we can come together to
deve l op a plan for the club and the
development of the club in a posi t ive and
constructive way, but we have to r e s pond
t o any actions that are taken.
We would ask you sincerely ·to hold
t he hearing today and to move fo r wa r d to
rezone this property. We think any
further delay and continuance wil l f urther
damage the club.
Thank you.
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MAYOR HIRSCHL: Thank you very much.
The first page of the ordinance says
that this land development is consistent
with the applicable provisions of the
Comprehensive Plan of the Village.
I, as your Mayor being served this
lawsuit, read this inside and out very
carefully and the allegations are of such
a serious degree that if we do not protect
the integrity of our citizens who we feel
possibly have been wronged based on the
allegations of this lawsuit, I think a
30-day continuance to ask my City Attorney
if the facts of this document are true
frankly is good Government.
We are here to protect the citizens
of this community and if this document --
this lawsuit --has any merits whatsoever,
we need to know it and I think the Council
has the right to know it based on the
citizens needs to know it because
potentialli the citizens were violated
back in 1987, as the lawsuit states.
ASSISTANT MAYOR BOGGESS: Allegedly .
MAYOR HIRSCHL: Allegedly.
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So we intend to find out if the
allegations have merit. I think 30 days
is a reasonable the amount of t ime . I
can't see how that anybody wou l d say that
30 days is unreasonab le . we are doing our
duty and our due diligence.
If there's any other comments, we'll
hear them. Otherwise, there's a motion
and a second for continuance and I call
the question .
All t hose in favor?
THE COUNCIL (IN UNISON}: Aye.
MAYOR HIRSCHL:
(No response.)
MAYOR HIRSCHL: This matter is
continued for 30 days.
(Thereupon, the meeting was concluded
at 1 :25 o'clock p.m.)
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CERTIFICATE OF REPORTER
STATE OF FLORIDA)
) ss.
COUNTY OF DADE )
I, CAROLE BERNARD BECKER, a Notary Public
in and for the State of Florida, do hereby
certify that I reported the foregoing meeting at
the time and place hereinabove set forth; and
that the foregoing pages numbered from 1 to 21,
inclusive, constitute a true and correct
transcription of my shorthand report of the
meeting.
WITNESS MY HAND AND SEAL in the City of
Miami, Dade County, Florida, this 21st day of
October, 1999.
CAROLE BERNARD BECKER
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