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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 PERSONAL TOUC H REPORTING, INC. (305) 944-9884 2 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944-9884 3 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 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 PERSONA L TOUCH REPORTING, INC. (305) 944 -9884 4 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 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 PERSONAL TOUC H REPORTING, INC . (305) 944-9884 5 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944-9884 6 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 7 1 2 3 4 5 6 7 8 9 10 11 1 2 1 3 14 1 5 16 1 7 18 19 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944-9884 8 1 2 3 4 5 6 7 8 9 10 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944-9884 9 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 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 . PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 1 0 1 2 3 4 5 6 7 8 9 10 1 1 12 13 1 4 1 5 16 1 7 18 19 20 21 22 23 24 25 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. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 1 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 1 2 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 14 1 5 16 1 7 18 19 20 2 1 22 23 24 25 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. PERSO NAL TOUCH REPORTING, INC. (305) 944-9884 1 3 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 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. PERSONAL TOUCH REPORTING, INC. ( 305) 944 -9884 1 4 1 2 3 4 5 6 7 8 9 10 1 1 1 2 13 1 4 1 5 16 17 1 8 1 9 20 2 1 22 23 24 25 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. PERSONAL TOUCH REPORTING, I NC. (305) 944 -9884 1 5 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 18 1 9 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 1 6 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 7 1 2 3 4 5 6 7 8 9 10 11 1 2 13 14 15 1 6 1 7 18 19 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 8 1 2 3 4 5 6 7 8 9 10 1 1 1 2 1 3 14 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 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. PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 19 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 18 19 20 21 22 23 24 25 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. PERSONAL TOUCH .REPORTING, INC. (305) 944-9884 20 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 17 1 8 19 20 21 22 23 24 25 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.) PERSONAL TOUCH REPORTING, INC. (305) 944-9884 21 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 19 20 21 22 23 24 25 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 PERSONAL TOUCH REPORTING, INC. (305) 944-9884 22