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HomeMy Public PortalAbout1998-09-15 Council Executive Session - AP Bal Harbour Club and AVA Developments CASE 98-026VILLAGE OF BAL HARBOUR COUNCIL EXECUTIVE SESSION 655 96th Street Bal Harbour, Florida Tuesday, September 1 5, 1998 2:00 o'clock p.m. PERSONAL TOUCH REPORT I NG, INC . 13899 Biscayne Boulevard Miami, Flori da 33181 305-944-9884 COUNCIL MEMBERS PRESENT: ALSO PRESENT: ESTELLE SPIEGEL, Mayor ANDREW R. HIRSCHL, Assistant Mayor JAMES E. BOGGESS, Councilman DANIELS. TANTLEFF, Councilman PEG E. GORSON, Councilwoman ALFRED J. TREPPEDA, VILLAGE MANAGER RICHARD J. WEISS, ESQ. and STEVEN HELFMAN, ESQ. Village Attorneys JEANETTE HORTON, Village Clerk PERSONAL TOUCH REPORTING, INC. 13899 Biscayne Boulevard Miami, Florida 33181 305-944-9884 2 1 (Thereupon, the following 2 proceedings were had:) 3 MAYOR SPIEGEL: We are going to call 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this meeting to order. Hirschl? We will go into roll call. MS. HORTON: Mayor Spiegel? MAYOR SPIEGEL: Here. MS. HORTON: Assistant Mayor ASSISTANT MAYOR HIRSCHL: Present. MS. HORTON: Councilman Boggess? COUNCILMAN BOGGESS: Here . MS. HORTON: Councilman Tantleff? COUNCILMAN TANTLEFF: Here. MS. HORTON: Councilwoman Gorson? COUNCILWO MAN GORSON: Here. MAYOR SPIEGEL: We are now going to have an attorney-client session in accordance with Florida Statute 286.011. The session is estimated to last one hour. The following people will be in attendance at this meeting: Myself and the Village Council members, the Village attorneys, Richard J. 3 4 1 Weiss and Steve Helfman, and our Village 2 Manager, Alfred Treppeda. 3 These proceedings will be recorded 4 by a certified court reporter. 5 At the conclusion of all litigation 6 discussed, the transcript will be made part of 7 the public record. 8 All those individuals who I have not 9 named should leave the room at this time. 10 (Thereupon, Village Clerk Jeanette 11 Horton was excused from the hearing room.) 12 MAYOR SPIEGEL: This meeting is 13 called to order . 14 MR. WEISS: Just to start off --and 15 then I will turn it over to Steve. 16 While we were on summer recess, we 17 received the opinion from the Appellate Court. 18 I have spoken to all of you about it. 19 Basically, it says that the evidence 20 that was presented to the Council by the 21 objectors was not sufficient to uphold the 22 Council's decision. 23 What we have done is to --in the 24 absence of having an Executive Session, we 25 have done what was necessary in order to 1 2 3 4 s 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 preserve the Council's position so that you wouldn't be prejudiced, which involved filing a motion for rehearing, which is still pending with the court. We have had no decision. The only twist to the motion for rehearing was that in the interim a very good case came out of the Appellate Court, the Third District Court of Appeal, which looks favorably upon testimony from neighbors. COUNCILMAN TANTLEFF: Could I give a copy of that out? I brought a copy. MR. WEISS: Sure. COUNCILMAN TANTLEFF: What I am referring to is Metropolitan Dade versus Weyco (phonetic) Commercial. MR. WEISS: Normally, a motion for rehearing is sort of somewhat of a rehashing of the same thing. But we were able to include this additional case, which might be of assistance to us. We are hopeful that the Appellate Division of the Circuit Court that heard this first will look at this case and reevaluate what they did. But we think that is fairly unlikely. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The next step then, with Council authorization, would be to file an appeal to the Third District Court of Appeal. That is the current status of the matter. The purpose of the Executive Session is to bring you up to date and have you ask any questions that you have about where we are, what might happen, et cetera, and to confirm authorization from you for us to move ahead and to take the appeal and to continue to try to uphold the Council's decision on this. COUNCILMAN TANTLEFF: Could I ask a couple of questions? MR. HELFMAN: Before you do that, let me say that there is an important aspect to this discussion, which is that I have been approached by two different lawyers that represent AVA about the possibility of settling this matter. So that issue is an important issue. 6 It should be discussed. We should address it. You may not have any interest in the matter, but these proceedings are appropriate 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for that discussion. I will tell you that there is a lawyer by the name of Michael Handsman who represents AVA, who is not handling the appeal, but has been hired by them to handle their corporate matters, as well as a potential lawsuit against the City if they feel that they have been damaged as a result of being denied the zoning. I also had a meeting with Cliff Shulman unrelated to your matter, but at that luncheon which I had with him recently, he raised the possibility of some resolution to this thing, some settlement to it. 7 They didn't offer anything, although Handsman said that maybe we could make some agreement where the other property that AVA has contracted to buy or will own if the whole club process is accomplished, which is the bay side property, that they might agree not to do development on that site or to have minimal development on that site on the bay side. I throw that out in no degree of order or importance, but just to tell you that that is the only other item which is properly 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 the subject of discussion here that you should be aware of. Whether we want to pursue it or not --I assume that they were serious in raising it, but I don't know how serious they are about it. MR. WEISS: The other thing I would like to mention before you start talking about things is that --just to remember that although this is exempt from the Public Records Law and the Sunshine Law at this point, when th is litigation is concluded, this will be made public. So bear t hat in mind with respect to any comments that you make. COUNCILMAN TANTLEFF: Did you want to begin with the questions that I have? MAYOR SPIEGEL: Does the Council have questions? COUNCILMAN TANTLEFF: Sure. MAYOR SPIEGEL: Go ahead . COUNCILMAN TANTLEFF: Just to clarify what the Court ruled --basically, for clarification. MR. WEISS: For clarification, what the Court ruled was that there was not 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sufficient evidence on the record put on by and I discussed this with all of you --that there was not sufficient evidence on the record to uphold the Council's decision in denying this request for rezoning. Again, remember that the standard is that once they show that it is in compliance with the comprehensive p lan and they have met procedural requirements, the burden then shifts in this case to the neighbors to show that the requested rezoning would not serve the public interest. What the Court ruled, basically, is that based upon the testimony that was presented by the neighbors, the Court didn't feel like there was enough evidence placed on the record by the neighbors to uphold the decision that the Council made. COUNCILMAN TANTLEFF: What was the Court's ruling? They disagreed with us, but what does that mean? MR. HELFMAN: It means that if you decided to accept that decision, that the direction is that the matter is remanded back to the Council to take action consistent with 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their decision. Typically, what that means is to conduct a hearing and to grant the rezoning. But that is not necessarily what it means. 10 If you chose not to take an appeal, for example, and you wanted to go back and just implement what you believe the Court was saying to do, you might hold a full public hearing and take testimony again and to the extent that the testimony supported a decision, you might make a different decision or the same decision. I am not telling you that that is not a very aggressive thing to do. The law is somewhat unclear when you have a decision like that and t hey remand back and say , "Make a decision consistent with what we found." Generally, what they are telling you to do is to go back and grant the rezoning. However, they can't order that. The law is very clear that a court cannot order you to rezone property. They can only remand the matter back to you for consideration consistent with their opinion. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 I don't know that anybody has ever tried. We are doing the research. To go back and hold another hearing and let everybody be educated by the Court and conduct a full public hearing with the evidence that may be appropriate for supporting a negative decision, taking the decision as a guideline as opposed to a mandate to do something, that is conceivable. The reason we haven't spent much time exploring that is because that is a highly unusual way to deal with this case. The more appropriate way to deal with it, if you feel that you made the proper decision, is to appeal this decision to the District Court of Appeal. MR. WEISS: The only word I would change from "appropriate,, is the word "traditional,, way to deal with it. MR. HEL FMAN: Okay. Certainly, much more traditional is to appeal to the Third District Court of Appeal and say --and the level of review there is that the lower Court applied the wrong law. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 As you go up the scale of courts, the degree of review gets a little narrower. 12 In this particular instance, the narrowest doesn't necessarily hurt us, because what we are saying is that they applied the wrong law. Had they recognized that the law allows neighborhood testimony, supported by other documentary evidence, to be considered by the Council in making its decision and that is proper evidence to make your decision on -- had they applied that law properly, we think that they would have upheld your decision. Do you want to explore what the Court said? ASSISTANT MAYOR HIRSCHL: If you are saying that the Court said that the publ ic input did not support the decision of the Council MR. HELFMAN: Yes, did not rise to the level of substantial competent evidence to have supported your decision. To come in and just say, "We don't like it," is not enough evidence for you all to say, "Then we don't like it either. Turn 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it down." It has to rise to a level of more competent evidence than, ''We just don I t like it." 13 ASSISTANT MAYOR HIRSCHL: You said you think they applied the wrong law in making their decision. MR. HELFMAN: Yes. Also, I don't think they understood the evidence that they had before them. I think that when you read these other cases, you realize that the level of evidence that is necessary to support a decision like yours is, under the new decisions, very l ow. You don't need expert testimony any longer, where in the past you may have needed it. Neighborhood testimony is enough, so long as it is supported by other matters in the record that they may bring in. They may bring in aerial photographs. They may bring in studi es that show o v ercrowding. They may bring in overcrowding of schools. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If they come in and they say, "You are going to overcrowd our schools. Look at these studies," that is enough. But, "Don't do this to us. It is out of character with our neighborhood. We really don't like it," is not quite to the level, at least in this Court's mind, that woul d support your decision. COUNCILMAN TANTLEFF: If I can make one comment. 14 This opinion, to show you how on point it is --just to hear a couple of lines. It says, "In the instant case" this is a Dade County Commission denying -- MR. HELFMAN: Denying a site plan approval. COUNCILMAN TANTLEFF: They then lost in the first round, like we lost, and they then appealed it to the Third DCA. MR. HELFMAN: And they lost again. COUNCILMAN TANTLEFF: So then when they went back to the Third DCA, the Third DCA reversed the lower Court, agreeing with the County Commission. MR. HELFMAN: That's correct. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 COUNCILMAN TANTLEFF: It says, "The Commission examined the use of compatibility. It properly considered aesthetics, as well as use. The Commission received the testimony of several neighbors, who characterized the project as industrial and stated that the project would be incompatible with the surrou nding neighborhoods. "Specifically, one neighbor stated that the facility would be an eyesore. He commented that what was proposed would not fit with the neighborhood. It's almost like trying to put an elephant into a Volkswagen." Basically, I think the Court, for t h e first time, really considered neighbors' testimony. COUNCILMAN BOGGESS: I read that and I think it's right on point. But we can't get too optimistic about this because there, they are talking about a storage facility in a resident ial neighborhood, and here we are talking about one more condo in a long row of condos. ASSISTANT MAYOR HIRSCHL: There is something interesting here. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 If you interpret what the judicial panel, the Circuit panel said, they said that the record does not support the decision. MR. HELFMAN: Right. ASSISTANT MAYOR HIRSCHL: You told us that although not traditional, should this Council want to rehear this entire matter and whether the public support goes strongly either way, make a decision. What is wrong with creating a more applicable record prior to, in lieu of the Third District Court of Appeal at this point? Where is the negativity of doing something like that? MR. WEISS: The issue is that we have hanging out there --it is one thing to make a zoning decision, have it upheld or not upheld and we sort of move on from there. We have hanging out here this whole issue, which I am not --a situat ion that is of concern to me as the Village Attorney, is this whole issue of liability. The more non-traditional, aggressive we get in terms of dealing with this issue, that liability is out there . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 I am not afraid of this but it's a concern of mine. Is it taking a non-traditiona l approach if a Court says, "That's a ridiculous approach. Nobody in Florida has ever done that approach," which we believe is the case. It is a unique approach, but tha t was bad, and they put that as part o f these little pieces that they are putting together in terms of trying to create a case for an intentional jerking them around. It's just another piece. So that's the downside of that. ASSISTANT MAYOR HIRSCHL: Why do you say that it is an intentional jerking around? MR. HELFMAN: That's what is going to be their allegation. MR. WEISS: They are trying to talk to us about the fact that you know, all the things that went on in terms of the process and blah, blah, blah. That is the case they are putting together. It is a civil rights violation if there is an intentional jerking. I don 't believe there was. But that is the case they are putting together . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This is another -- MR. HELFMAN: The straightforward proper consideration of the zoning hearing, where you just make a decision. 18 It happens to be the wrong decision. Some Court said, "You did it wrong." That's not actionable. Nobody can sue you for that. There is no right to go collect damages for that. That's what government does all day long. If they apply the wrong rules, the Court says, "You applied the wrong rules. Go try it again or reverse your decision." When the government initiates the process to affect the rights of parties, as opposed to an applicant coming in and saying, "I am here for a zoning hearing. Give me a fair hearing" --when the government initiates the effort, now you begin to get in an area where you need to be careful, because now you are taking initiative toward dealing with their property. I don't think you are suggesting that. What I think you are suggesting --and a possibility is that in lieu of or maybe 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 together with an appeal I'm not sure that that is inappropriate. We have to look at it. We say, "You know what, we want to be fair to these people, all of them, all of the participants in this process." We will advertise a notice of public hearing and conduct a hearing consistent with the Court's direction and what we understand that the Court is saying, and allow everyone to come forward. That creates a whole new public record, a whole new public hearing. We would have to look very carefully at whether -- I have suggested it and I am talking to you very openly, like I talk within my office to people. I think it's a possibility. We haven't looked at it because it is very non- traditional. Our advice is going to be to move forward with the traditional appeal so that we don't in any way risk not taking that action, where we think we have a decent chance of success based upon the new law. I'm not saying you are going to win. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 There are no guarantees. But that kind of decision is coming out of that Court. That Court is recognizing that neighborhood testimony about what they feel is appropriate and compatible in their own neighborhood justifies decisions. These line of cases are beginning to get more favorable to the neighbors than they were in the past, literally while we are in this process that is evolving. So what we have done is, we have filed that with the Court and said two things. Number one, we want you to reconsider what we did. Number two, we want you to clarify your ruling in the event that we want to conduct a new hearing, so that we preserve that opportunity. We put in our motion a motion to clarify. We said, "We want the Court to tell us what it is that we should have be doing at the hearing that you want us to do." We have given them that opportunity in this motion for clarification. The last thing we did was file a separate supplemental authority. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 3 24 25 21 When this case came out two days after we filed our motions, we sent this in and said, "This is further basis for a rehear i ng by you on this matter, because the law whi le you have been deliberating thi s has changed and it's more favorab l e to us." MR. WEISS: The reason that case is so significant is because the Court that issued that opinion is the exact same Court that is going to look at our case. That is why it is such an important and favorable case for us. It's not a Court out of North Florida or someplace. It is the Third District Court of Appeal and they are the ones who are looking at these things very favorably. That's why we are encouraged by that particular decision. MAYOR SPIEGEL: By going to a higher Court, an Appeal Court, do the other attorneys --what is his name? Shubin? MR. HELFMAN: Absolutely. They already filed their motions a l so. MAYOR SPIEGEL: They are going to go along with -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are. 22 MR. HELFMAN: I understand that they At first, there was some concern about whether or not their clients, who were Doug Rudolph and Berlin and then Dan Paul's clients were wil l ing to continue to move forward. Both of those law firms, Shubin and Paul, called us and joined in our pleadings and have told us that they are moving forward and are going to participate in the appeal. So that is a good indication that they are committed to going forward, and they filed the same motions that we did. They adopted ours, actually. We filed them and they just piggy-backed. MAYOR SPIEGEL: By going this route, the traditional as you call it, does that support our decision to go ahead without getting involved? We can have litigation for damages with them, you said. Does that preempt that? MR. WEISS: No, it doesn't. But what it does is --by going ahead with the appeal, there is no liability being created. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Basically, you are asking for the Court to review the decision of the lower Court. 23 Incidentally, these are not mutually exclusive. You can do both of them. MAYOR SPIEGEL: Do we have liability now with them? MR. HELFMAN: We don't think so. MAYOR SPIEGEL: Can they now sue us for anything other than MR. WEISS: Based upon the information that we have about what went on in this process, we don't think the Village has liability. MR. HELFMAN: Based upon what we know --and we were here for the proceedings, there is nothing that occurred during these proceedings that we feel rises to a level where they would have an independent action against you, nothing at all that we have seen. MAYOR SPIEGEL: By going the traditional route -- MR. HELFMAN: We don't create any more liability. We are just saying the Court did something wrong and we are entitled to 1 2 3 4 5 6 7 8 9 10 11 12 13 1 4 15 16 17 18 19 20 21 22 23 24 25 24 t hat. There are cases on point. There is a case in South Miami where the City Commission there --I mean, they really pounded this guy. They pounded a guy who had a gymnasium. They beat him up bad. At the end of the day, he won. He went to the Third District and he won and he sued the City and said, "You guys really beat me up and I am entitled to money ." The Third District Court of Appeal said, "No. They went through a zoning process. They made the wrong decision. They really made the wrong decision, but that doesn't give rise for you to sue them for money damages." COUNCILMAN TANTLEFF: Nobody would run for office anymore. You have to respect the Commission decision. MR. HELFMAN: We are not saying individually. They didn't try to get the Council members individually, but they tried to sue the City by saying that through its Council, they acted improperly. MR. WEISS: The City can have 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 liability. It would have to be something that is very egregious that we are not aware of. MAYOR SPIEGEL: Individually, we are not either. MR. HELFMAN: That's correct. By taking an appeal, you don 1 t create any more liability than has already been created if there is any. There is nothing in this process --by saying, "We would like to have another Court look at this," that exposes you to any further liability. MR. WEISS: As a matter of fact, by taking the appeal, you have the ability to insulate yourself from liability totally, because if we win the appeal, obviously, you were right to begin with. MAYOR SPIEGEL: By taking the appeal that's why I asked you about the other two attorneys the neighbors are fully protected. MR. HELFMAN: They are participating in it. MAYOR SPIEGEL: So we don't have to go through a terrible uproar, creating more 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 havoc than we already are. MR. HELFMAN: They want to appeal. MAYOR SPIEGEL: They want to appeal and we want to appeal --we don't know, but I am saying if we want to appeal and they piggy - back, they are on the appeal and then we go ahead. MR. HELFMAN: That's correct. MAYOR SPIEGEL: Without any further MR. HELFMAN: Without giving rise to any more public hearings. However, if you want us to look at that issue where you could run two processes concurrent with each other, we can look at that. I don't know that you can do it. I will probably come back and tell you no, but I would want to look at it before I said no. MAYOR SPIEGEL: How much is the appeal going to run, time element? MR. HELFMAN: We have written the first brief, obviously. You are probably talking about maybe $25,000 to go through the second level . COUNCILMAN HIRSCHL: At the Circuit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 level when you argued on behalf of the City, you were restricted insofar as you were not able to introduce anything outside of the testimony or MR. WEISS: Right, and the Third District is the same thing. COUNCILMAN HIRSCHL: If you go to appeal MR. WEISS: Same thing . COUNCILMAN HIRSCHL: There is nothing to bring in from the outside? MR. WEISS: No. What is on the record is on the record. 27 The only thing that helps us at the Third District is the way in which what is on the record is looked at. In other words, somebody can look at something and say --look at the neighbors' testimony, which is what the lower Court did and say that doesn't mean anything. We are hopeful that based upon this case and the Third District in general, that the Third District is going to look at the neighbors' same testimony -- MR. HELFMAN: Right, it's the same 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testimony. They are going to look at it and say, "That is substantial competent evidence to support " MR. WEISS: The argument that we have is that you should look at it in a different way. ASSISTANT MAYOR HIRSCHL: Let's go one step further. 28 In private discussion, I have discussed with you the fact that I believe under previous Council, there was manipulation of the Master Plan, the comprehensive Plan. That was never brought into evidence. That was neve r discussed. I am not an a ttorney, but it s eems that if that's a germane point to bring into t h e discussion MR. WEISS: At this po i nt, in order to start to get --to talk about evidence outside of what was already present ed, y o u hav e t o get into a new proceeding of some sort. ASSISTANT MAYOR HIRSCHL: I think we are at a disadvantage going into this appeal. MR. WEISS: Because that issue 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 wasn't raised. ASSISTANT MAYOR HIRSCHL: I can l ist ten issues that weren't raised, which I, as a Councilman, can't raise listening to the publ ic's input. MR. WEISS: Right. ASSISTANT MAYOR HIRSCHL: But I think that the incomplete record, wh ich i s wha t the Circuit level has decided on --maybe I am naive, but I don't see how the Third District level is going to make any difference. It 1 s the same thing. MR. HELFMAN: I know why you think that, but if you look at that decision -- ASSISTANT MAYOR HIRSCHL: This is apples and oranges. This is a different situation. This is different than ours, period. MR . HELFMAN: It is. ASSISTANT MAYOR HIRSCHL: You can argue that you have a building , a building, a space and a building. We are not putting in a warehouse. They want to put a high rise. That's consistent. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WEISS: The issue here is not consistency. 30 ASSISTANT MAYOR HIRSCHL: I'm not a lawyer. I am saying to you that I don't think the record was as complete as it should have been. Whether it was our fault or whether it's the public's fault or the attorneys' fault, the facts are that we did encounter difficulty at the Circuit level. MR. WEISS: I am sure that Council voted based upon -- ASSISTANT MAYOR HIRSCHL: On what we heard. MR. WEISS: You felt that the record was sufficient to justify a decision. ASSISTANT MAYOR HIRSCHL: Agreed. What I am saying to you is that the strength of that record could have been enhanced, possibly. I don't know. But that's old news. MR. HELFMAN: The opponents may have put on other material, which they didn't choose to put on. They have remedies if they think -- If the community believes that the 1 2 3 4 5 6 7 8 9 1 0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 comprehensive plan was improperly adopted, they have remedies available to them to try to seek redress for that. MR. WEISS: Also understand that it is very unusual for a c i ty to challenge its own comprehensive plan. MR . HELFMAN: You can't do that. MR. WEISS: This City adopted its own comprehensive plan. What you are saying is t h at you feel like there may have been some improper influence in the way that plan was adopted. I have never heard of a city challenging its own comprehensive plan. Basically, that's what you are talking about. MR. HELFMAN: You can't . You go back and amend the comprehensive plan . MR. WEISS: And change i t . MR. HELFMAN: To change it. The problem is tha t then you begin to flirt with the issues that we are talking about, where the government is initiating a down planning of a property owner's property. That is a risky thing to do . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 However, that is not to say that members of this community who feel that the comprehensive plan was improperly adopted, that it was adopted and that there was prejudice involved or undue influence involved in the adoption of it that they are just learning of and that they just recognized --that is not to say that they can't challenge this City and file some type of action to set aside the ordinance which adopted the comprehensive plan. We will do what you want for us to do in defending that action. MR. WEISS: Actually, as I am thinking about it, there are also non -judicial remedies that are available, that could be available for repealing ordinances. I am thinking, Steve, of like a petition. MR. HELFMAN: Right. MR. WEISS: There are procedures in our code and state laws so that if the Council passes an ordinance and the people don't like it, they have the ability to collect petitions and so forth and to repeal that ordinance by the electorate and, basically, overrule the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Council. I don't know if that has ever been applied to the adoption of a comprehensive plan. MR. HELFMAN: There is a law that says that you can't do zoning by petition. The other thing, which is the po i nt that you are making --I don't want it to be lost --that the further that you get up these appellate courts, the more difficult it does get to get a favorable decision. The point you are making is correct, which is that they are going to be looking at the same evidence. We just have to convinc e them that the law is different and that the law was improperly applied. But as you move up, it gets more and more difficult. MAYOR SPIEGEL: How many more times can you move MR. HELFMAN: One after that, but it's to the Supreme Court and it's completely discretionary. They are not going to hear this case. MR. WEISS: I think I have told you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this. Like for instance, when we litigated against actually the same law firm on the Seaquarium, we started out by losing at the trial court. MR. HELFMAN: We won at the Third District. MR. WEISS: We won at the Third District Court of Appeal and we won in the Supreme Court. So it does happen. We lost at the County Commission. MR. HELFMAN: Right. MR. WEISS: We lost at the trial court. MR. HELFMAN: Yes. MR. WEISS: We won at the T hird District and we won in the Florida Supreme Court. 34 MR. HELFMAN: The record is the record. We can only let the Court understand that the lower court is misinterpreting this record and really doesn 't understand what they were looking at. We have had a certain level of success here, although we lost. I'm not in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 4 2 5 35 any way saying that is a good result. There are only two grounds that they brought the appeal on. Their first ground and the one that they opened up their case with and wrote almost their entire brief on was something called reverse spot zoning. They lost that argument entirely. It's not even mentioned in the decision when it comes out of the Court. It was the basis of their whole challenge. They opened up their oral argument and their lawyer stood up in front of the three judges and said, "This is a case about reverse spot zoning." The opinion, two, three pages of it, doesn't mention reverse spot zoning. So we have taken out of their arsenal their biggest and strongest argument, what they thought was their strongest. They happened to win on the lesser of their two arguments. We now have good law , we think, to make a good case that their second argument, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which is the one the Court bought off on, is weak also. 36 COUNCILMAN TANTLEFF: Which is what? MR. HELFMAN: Which is that the testimony --let me give you what we would hope the Court would have looked at this as. We look at your community --you see, they are trying to paint a picture that this Council has zoned and allowed the oceanfront part of this community to be multi- family development and that somehow they are the only poor guys just hanging around here who can't do what this Council has let everybody else do. What the Court didn't recognize, we don't think, and what hopefully the Third District will recognize, is that you didn't have anything to do with any of that. You, nor any prior Council people, zoned that land for what it is. There was a developer who created this community. That developer who took this community is no different than Arvida or anybody else. They decided how this community was going to be built. They decided that there 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 7 were going to be mu l t i -family sites on the ocean. They decided there was going to b e two private club facilities . They mandated t h at e v e r ybody in the commun i ty b e a member of thos e f a c ilities . Th ose faci l i t ies a re lar ge r tha n a ny o t her lot on the o c eanfr o n t. That s ite wa s n e ver i ntended by the developer to ever b e a mult i -family s i te . It is double the size of all of them . It is five acres. It has double the width of every other site there. What they have attempted to do -- and maybe with this Court successfully --is to somehow paint the picture that you allowed al l that to occur and now you won't let them build on this site. What the Cour t didn't recognize and wh at we hope the second Court will recognize is that you didn't have anything to do with it, that the club's predecessor, their direct predecessor, who created the club, is t h e one t h at set out this regime. I t is like a dev e l oper coming in and saying , "Do you know what? Here is my 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 community. I am going to put a golf course in the middle of it." Everybody buys around the golf course. They know that it 's a golf course. Then the developer says, "I can't make it with a golf course anymore. I want to build homes on the golf course. And look, there are homes there already." It is ridiculous to think that they can use the fact that they designed the community with multi-family, but l eft that as open space. To then come back and say that you did it --you didn't have anything to do with it. It goes to sort of the spot zoning argument, which you were successful on. They kept on saying, "This City has done all of this and now they are leaving us out." We said to the Court, "That's ridiculous. We didn't do that. This government didn't create their problem. They created their problem." The developer of Bal Harbour created their probl em, not you. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 ASSISTANT MAYOR HIRSCHL: If you already argued this, why would it be any different at the Third DCA level? MR. HELFMAN: Just because decisions by Appellate Courts are reversed every single day. MR. WEISS: And it may not be. It 1 s another chance to argue these arguments, perhaps in a slightly different way with a little different authority to another group of judges. We win them and we lose them. MAYOR SPIEGEL: I believe that other judges also offer a different interpretation . MR. WEISS: That 1 s the point. COUNCILWOMAN GORSON: How many judges are there in the Third MR. HELFMAN: The size of the panel there is probably three or five judges, depending on the size of the panel. It won't be the whole Court. COUNCILMAN TANTLEFF: Let me get back to what I was asking. What is the second ground? The Court bought the second issue -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 MR. HELFMAN: The second issue is that we didn't have --they said this is reverse spot zoning. The Court has obviously rejected that. They said this Council didn't do anything to these people. This is a situation that was created in 1940 by the developer -- or earlier than that. You didn't do this to them. The whole concept that they are going forward with is, \\Look what they have done. They let everybody build --'1 COUNCILMAN TANTLEFF: I just wanted MR. HELFMAN: The second ground is that we didn't have a legitimate public purpose for wanting to keep the property the way it has been forever. You would think that if you read the record COUNCILMAN TANTLEFF: What about the green space argument? MR. HELFMAN: We had all sorts of arguments. I don't think it could have been clear either. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What the Court said was, "Yes, you have a very laudable position in wanting to preserve your community. That's fine. But where is the evidence that supports that goal?" Just having the goal is not enough. 41 You have to have evidence to support the goal that you are trying to accomplish. ASSISTANT MAYOR HIRSCHL: You told us that we have a minimal amount of evidence on the record to support that decision. MR. HELFMAN: That's correct. What we are saying is that we are hopeful with decisions like this that this next Court is going to say it may be minimal, but it was enough. It rises to a level of enough evidence that we think the Court should have upheld the decision. That's where we are. In this case, the Circuit Court said there wasn't enough evidence, that just complaining what it looked like and the fact that you didn't l ike it and it was an eyesore wasn't enough. This Court says it was enough. It 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was enough because they weren't just making that up. If you look at this project, it is an eyesore. So we are hopeful that what wil l happen is --believe me, I think you are taking the right approach. You need to look at this from both perspectives. 42 Are we wasting our time? I th i nk it's corr ect to p l ay the devil's advocate here, but I also think that you are not wasting your time in trying to get this Court to reverse the decision , in particular because of decisions like this. We see this Court moving further and further toward neighbors, as opposed to the development community. As the days go by, we see that happening by different judges, not just the same judges each time. This decision was not by Schwartz, who is the major anti-development guy. T h is is by Cope, Goderich and Sorondo. This is a whole different group o f people that are making these decisions. MR. WEISS: Just to let you know our perspective, we are not advocating --we are 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trying to present this to you. We are not pushing you to appeal this at all. I don't want you to think that we are pushing you to do this because we are dying for legal work. We are just trying to give you MR. HELFMAN: We have a few things to do when we walk out of here. COUNCILMAN TANTLEFF: Steve, can I 43 ask you in both your judgments, wouldn't it be correct that we expected the Circuit Court to do this and is it rare for a Circuit Court to say the Commission was right and the issue is dead? MR. WEISS: No. Generally, the presumption is that what the Commission did is right. The problem is that in these particular zoning cases, the way they come up is --after Jennings and the Snyder case, once they put the evidence on the record that they met the procedural requirements, you have to give them some zoning that is consistent with the Master Plan. COUNCILMAN TANTLEFF: The Circuit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court usually agrees with the developer? MR. WEISS: No, I would say --you have to take a list of opinions where the government's challenge 44 The Circuit Court usually agrees with the government --usually. That's usually what happens. But it could go either way. ASSISTANT MAYOR HIRSCHL: One other point, if I may. You mentioned earlier to us that indirect overtures of compromise of a deal was a possibility. MR. HELFMAN: Absolutely. ASSISTANT MAYOR HIRSCHL: Are we allowed to discuss settlement? MR. WEISS: Settlement is a specifically authorized subject of these Executive Sessions. ASSISTANT MAYOR HIRSCHL: Let me know if I am going astray, please. It has always been common knowledge that a that certainly the oceanfront was a sore spot and proliferation of development of the marina was a sore spot. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 We went through the exercise of site plan approvals regarding the modification of the yacht club and such. We also have all been privy to the innuendo, gossip or whatever you want to call it, of single family homes or town homes placed around the marina, possibly fill i ng in the marina, poss i bly not filling in the marina. Where does this all gel, meaning MR. WEISS: It has to come from -- there is a concern overall in the community and from the Council about overall development in the Village. If there is a potential settlement, basically, what has to happen is that the Council would say to us, "We don't like what is going to happen on the oceanfront." I am just saying this and if it's wrong, tell me I am wrong. We are concerned about overall development in the Village. If we had some assurance that there wasn't going to be any development on the other side this is sort of what has been talked about by these 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 lawyers. If we were sure that there is going to be no development on the bay side, then we would settle this thing. COUNCILMAN BOGGESS: Do we own the property on the bay side? MR. HELFMAN: It's not our issue. MAYOR SPIEGEL: Would they still own it or would they give it to the Village? MR. HELFMAN: They might give it to the Village and -- MAYOR SPIEGEL: What if they give it to the Village MR. HELFMAN: Maybe that's an interesting thing to explore. MAYOR SPIEGEL: To create a park for only the residents on the west side, not for anybody else to come into, like the little park we are talking about building. What is wrong with that? You could always move there if you like it. MR. WEISS: The other concern I have about a public park on the west side is because MAYOR SPIEGEL: It wouldn't be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 7 public. It would be private. MR. WEISS: The point is that it belongs to the Village. We already have sort of an issue there to begin with. You are going to have to then allow access to the residential area, which I know they do not want. ASSISTANT MAYOR HIRSCHL: What I am getting at -- MR. HELFMAN: Before you do that, let me tell you that if that was an idea, I'm not so sure that it cannot be accomplished. The developer can accomplish it by restricting the use of the land. The developer can dictate how he wants to make his gifts, if you will, and his dedication and donation to the community. He may very well say, "I will give you this land, but I am giving it to you for a specific purpose. I want it to be restricted that way. I am giving it because I want the residentia l people on the west side of the Village to have a facility. I don't want it to be overwhelmed by the condo dwellers. I am going to give it to you, but you accept it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 with a deed restriction that says that you, the Village, can only allow the people here." We need to look at that. But in that instance, you would not be creating the separation between the communities or the division of rights. You would not be precluding the people. It would be the developer who would be limiting. If that is a concept that you all want to explore, don't be put off by it. Think about all the ideas that you want to think about and let us worry about whether they can be accomplished legally. ASSISTANT MAYOR HIRSCHL: You mentioned in your presentation before --you argued that Bal Harbour's developer built the marina, the oceanfront, the multi-family dwellings, the single-family dwellings. For a new developer to build homes or town homes around a fifty-year-old marina that has always been built and developed as it was --I'm not talking about the yacht club because that's also been there. Does Bal Harbour have a say in that occurring? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 MR. HELFMAN: Absolutely. ASSISTANT MAYOR HIRSCHL: More than just a site plan approval? MR. WEISS: It's zoned P .C. now, isn't it? ASSISTANT MAYOR HIRSCHL: It is· zoned P.C., which allows single family. MR. HELFMAN: It does, except that the physical upland area allows for very limited --you couldn't get many homes on there. They would have to actually try to fill in the basin. That is totally within your domain, completely. It would require an amendment to the comprehensive plan, which is a legislative function which you don't have to give. That is not a quasi-judicial function, like a zoning hearing. ASSISTANT MAYOR HIRSCHL: You are assuming that they can't fit structures on t he existing land. I am going to tell you they can. I'm going to tell you that they can put a thin band of town homes. They can be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 single-family town homes, which may qualify as a single-family home. Attached or unattached, we don't discern, I don't think. MR. HELFMAN: Except that your code has minimum lot sizes and lot frontages and things with single-family homes. ASSISTANT MAYOR HIRSCHL: Not in the P.C. district. MR. HELFMAN: It says as are permitted in the R-1 district. MR. WEISS: Remember, we amended i t. ASSISTANT MAYOR HIRSCHL: I recall. But what I am getting at is that there seems to be a little arm twisting right now applied by AVA, and justifiably so, to try to massage this deal. MR. HELFMAN: I don't think they are arm twisting and saying, "We are going to put houses in there," as much as they are saying, "We may come in and build an active clubhouse there, a really active clubhouse there. We may come in and do just exactly what we are allowed to do. We are going to open it up and run a club there." The community would be just as upset 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 with t hat as they would probably be with homes. ASSISTANT MAYOR HIRSCHL: I would say so. MAYOR SPIEGEL: Probably more. MR. HELFMAN: So they are not necessarily using --they know that the single-family scenario is not a strong one. 51 The last time that Handsman spoke to me about this potential thing, he said, "You know, we could build a big clubhouse and I don't think you guys would like that." So that is the concept. I don't know how big a clubhouse. We have restricted it to a certain size that we felt was compatibl e. MR. WEISS: A couple of years ago, we said that R-1 single-family resident i al uses are permitted in t he P.C. district. However , maximum density, building height, floor area, setbacks and maximum lot coverage and other standards shall be those standards set forth for the R-1 district . MR. HELFMAN: So you can't just build town homes. R-1 doesn't allow for town 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 homes. You have to build houses comparable to the houses that are there. MR. WEISS: There is also a minimum lot area that we included. MR. HELFMAN: Of how much? MR. WEISS: Seventeen thousand five hundred. MR. HELFMAN: That's 100 by 170 deep. MR. WEISS: And a minimum width of 100. MAYOR SPIEGEL: It's not that deep. MR. HELFMAN: A minimum width of what? MR. WEISS: One hundred. MR. HELFMAN: They are going to get maybe one house in there. It's not a big threat. MR. HELFMAN: They might. COUNCILMAN BOGGESS: I think it's more than that. 52 COUNCILWOMAN GORSON: Going back to the original decision, were there signatures and lists of the neighbors with the petitions? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HELFMAN: Absolutely. It was part of the record, but a list of people is not testimony. MAYOR SPIEGEL: They appointed somebody in each building to collect them. ASSISTANT MAYOR HIRSCHL: You said earlier that petitions are an effective form of neighborhood protests of a particular development. 53 MR. HELFMAN: It is, but pure protest alone --what the Court is telling you is that pure protest alone is not enough. MR. WEISS: You just can't come in and say, "I don't like it. I don't like it. I don't like it." MR. HELFMAN: That's what the petitions are. It is hundreds of people who say, "We don't want it." Well, so what? Give us some evidence as to why you don't want it, is what the Court is saying. The evidence as to why you don't want it is that you just don't want it. ASSISTANT MAYOR HIRSCHL: Do you think that the attorneys representing the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 citizens in this case did not do as thorough a presentation as they should have? MR. HELFMAN: In retrospect now, they obviously didn't put on enough evidence to convince the Court. COUNCILMAN BOGGESS: Richard kept sayi ng at the time, "We need evidence, not opini on." MR. HELFMAN: We told them publicly and we told them privately, believe me. We shared that information with you so that you coul d disseminate it if you recall and say, "Go out and get your lawyers and get your evidence." I will tell you that John Shubin is an extremely capable lawyer. He has won many cases under these theories. He believes that what he put on was adequate. MR. WEISS: He is adamant about it. MR. HELFMAN: Yes, he is adamant about it. He believes that he put in enough. He thinks there is enough there. MAYOR SPIEGEL: Let's get back -- COUNCILMAN BOGGESS: The time is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 moving on. I want to raise another question. MAYOR SPIEGEL: Go ahead. COUNCILMAN BOGGESS: Their proposal --I don't think we can go into that right now. 55 Here is what I want to know and what we have to consider . If we win the appeal, then wha t do we do? MR. WEISS: If you win the appeal, you won. That's it. MR. HELFMAN: He is saying as a practical matter -- COUNCILMAN BOGGESS: As a practical matter. MR. WEISS: It's over. MR. HELFMAN: He is saying, what is going to open there. COUNCILMAN BOGGESS: We are going to wind up with the club being sold on the courthouse steps somewhere. We are going to go through this exercise again, I'm afraid. I don't want that property developed, but I don't see the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 alternative. ASSISTANT MAYOR HIRSCHL: Let me ask you a question. 56 We have raised this amongst ourselves. If the club wants to cease their operation, why could they not build a single- family home complex on the ocean? Let's assume there can be found a dozen or more people to spend three, four, five million dollars for an oceanfront house in Bal Harbour, which doesn't exist now. Nothing prevents them from doing that. MAYOR SPIEGEL: Sol Taplin brought that up. COUNCILMAN BOGGESS: You have a situation where you have people in the building next door looking right down in your backyard all the time. ASSISTANT MAYOR HIRSCHL: You have that in Golden Beach. COUNCILMAN BOGGESS: You have that where the Blue and Green Diamonds are. MAYOR SPIEGEL: They tried that. ASSISTANT MAYOR HIRSCHL: I wouldn't 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mind an oceanfront house in Bal Harbour Village. That would be very nice. 57 MR. HELFMAN: They want to make thi rty-five million dollars for their property, is what they want to do. They want to make millions of dollars. There is nothing to say that that property cannot be operated as a beautiful private c lub on the ocean, if they want to se l l it for four or five million dollars and make a nice profit. They are saying t hat we can't f e asibl y operate a club. I don't believe them. I believe that every private club can be operated there. They may have to assess the members, like every other club in the country assesses their members for improvements. A club can be operated t h ere. Just because it's expensive to opera t e a club there and because they want to sell the property for thirty -five million dollars doesn't mean that you can't successfully run a club there. Believe me, I will try at five million dollars personally to run a club 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 there. I bet I can make it work. COUNCILMAN BOGGESS: If they had comped the management through the years, they wouldn't be in this situation. ASSISTANT MAYOR HIRSCHL: Of course. MAYOR SPIEGEL: That was a very, very inflated price. They kept raising the price all the time. MR. HELFMAN: What I am saying is that as a practical matter, what happens there --does it end up on the courthouse steps? No. What happens there is that the club says, "We are going to have to sell it as a single-family site or as a club." What is it worth? Somebody is going to come along and pay them five to ten million dollars for that site as a club or for single- family homes. It's going to happen. MAYOR SPIEGEL: One group has already invested more than four million dollars to maintain it as a club. MR. HELFMAN: Who is that? MAYOR SPIEGEL: Two people. Johnson and Stoker, they put over four million dollars 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 into it. MR. WEISS: The time is drawing close. What we need from you --right now, we are on track, aggressively pursuing this appeal. If we get a settlement offer from them, we will have another Executive Session and bring it to you. If you are comfortable with us that way, you don't need to take any action. We are moving ahead doing that. MR. HELFMAN: There is a slight chance that the motion for clarification and rehearing will be granted. It's small. Probably one or two percent of them get granted. It may happen. We filed it more than two weeks ago. We have heard nothing from the Court. 59 Generally, when a Court has made a decision, they pretty much summarily send back "Denied." We haven't gotten that. ASSISTANT MAYOR HIRSCHL: Don 1 t open tomorrow's mail. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 18 19 20 21 22 23 24 25 60 MR. HELFMAN: It probably will be in tomorrow's mail. ASSISTANT MAYOR HIRSCHL: Of course, it will, because you mentioned it today. MR. HELFMAN: Once we get that decision, and we expect it will be a denial, then we file a petition in thirty days with the Appellate Division. Unless you tell us not to, that has been our intent and plan. ASSISTANT MAYOR HIRSCHL: One more question before I would vote, personally. Forgive the question from the standpoint of respect because I have high regard for you both. Should we be hiring additional appellate counsel to deal with this case? MR. WEISS: We really feel --again, if I didn't think that we could do a great job on this, I wouldn't do i t . T he lawyers that we have working with us in addition to Steve, one of the attorney's name is Danny Weiss, who represented Dade County doing just these appeals for years and years. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The answer is no. MR. HELFMAN: The only person I would tell you to hire is John Shubin and he is already in the case. COUNCILMAN TANTLEFF: How about the lawyers that did this case? MR. HELFMAN: That is the County Attorney's Office. 61 MR. WEISS: That's where Danny Weiss came out of and where I came out of. COUNCILMAN TANTLEFF: Because this case is really, really important. MR. HELFMAN: What is important about this is that the people here --Stanley Price, Eileen Mehta and all the people that are here, they lost this case. They are outstanding land use lawyers. They are very capable. They are up there with us. They were our partners. We know them inside and out. you have. it really They lost. It doesn't matter who If you have knowledgeable people, COUNCILMAN TANTLEFF: The only 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 reason I asked that is that this was the biggest case and I had to bring you a copy of this case. MR. WEISS: No -- MR. HELFMAN: We filed this with the Court two weeks ago. COUNCILMAN TANTLEFF: I am saying today. I had to hand you a copy of the case. MR. WEISS: We don't need it. We know the case. COUNCILMAN TANTLEFF: He wanted to read it. He took a copy. MR. WEISS: No -- MR. HELFMAN: Danny, the reason I wanted to look at it is to see which three judges wrote the decision. That's the only reason. MR. WEISS: I don't have one particular case. I am citing you cases. I don't need that. I know that case. ASSISTANT MAYOR HIRSCHL: Can I ask one more question? Assuming this Council today decides to move ahead with the appeal and assuming 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that you are contacted for negotiation -- let's assume that they will give us the west side in exchange for something on the east side, we would have then another Executive Session? 63 MR. WEISS: We ask them to put it in writing and we bring it to you in Executive Session and you go over it. MR. HELFMAN: You can have as many of the sessions as you want. MAYOR SPIEGEL: That doesn 1 t stop the appeal? MR. HELFMAN: That doesn't stop the appeal. It just keeps it moving forward. COUNCILMAN BOGGESS: I believe what you said is that no action is required today because you are ready to go to appeal? ASSISTANT MAYOR HIRSCHL: I think they want to reaffirm from us -- MR. HELFMAN: No action on a settlement is required today. In other words, they made an overture with regard to settlement. You don't need to do anything on it, unless you're really interested in doing that. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 COUNCILMAN BOGGESS: I am talking about going to appeal. COUNCILMAN TANTLEFF: The only thing I would ask, because I am only on the Council a short time --this is probably one of the most important cases that we will ever have. MR. HELFMAN: Absolutely. COUNCILMAN TANTLEFF: So please work as hard as you can and as diligently as you can. We love you for it. This is very important. MR. WEISS: We understand. MR. HELFMAN: I don't know if you looked at what we generated in terms of work product. If you look, you will see the commitment. If you had come, you would have seen that we gave an incredible argument. And you can ask people. You don't have to take my word for it. But aside from that, the work product alone, if you look at it, you will see the commitment that went into this. It was an extraordinary effort. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We didn't win, but we are certainly putting in everything that you deserve. 65 COUNCILMAN BOGGESS: Give it the old college try. MR. HELFMAN: We will give more than that. Understand that the contents of this Executive Session should be kept private. You shouldn't be discussing it with people outside. COUNCILMAN TANTLEFF: How about with each other? MR. HELFMAN: No, definitely not. MAYOR SPIEGEL: We definitely can't speak with each other. ASSISTANT MAYOR HIRSCHL: So we do not need a vote necessarily to go ahead? MR. HELFMAN: No. What we are telling you is that we are going to file the appeal unless you tell us not to and I haven't heard anybody say no. ASSISTANT MAYOR HIRSCHL: No one said not to. MAYOR SPIEGEL: The attorney-client session is now terminated and members of the 66 1 general public are now invited back into the 2 Council chambers for any further proceedings 3 or matters. 4 (Thereupon, the Executive Session 5 was concluded at 3:00 p.m.) 67 CERTIFICATE STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) I, RITA BERNSTEIN, Court Reporter, do hereby certify that I reported the Village of Bal Harbour Council Executive Session; and that the foregoing pages, numbered from 1 to 66, inclusive, constitute a true record of the said hearing. I further certify that I am not an attorney nor counsel for any of the parties, nor a relative or employee of any attorney or counsel connected with the action, nor financially interested in the action. WITNESS my hand in the City of Miami, County of Miami-Dade, State of Florida, this 24th day of September 1998 . 7 Coujit Reporter