HomeMy Public PortalAbout1997-12-16 Quasi Judicial Public Hearing-Church By The SeaBAL HARBOUR VILLAGE
COUNCIL MEETING
DECEMBER 16, 1997
4:00 P.M.
CHURCH BY THE SEA
ORIGINAL
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EXCERPT
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MAYOR SPIEGEL: We have another
ordinance at this time, first
reading/continuation of the Quasi Judicial
Public Hearing.
MS. HORTON: An ordinance of the
Village of Bal Harbour, Florida, providing
for rezoning from the "PC" Private Club
Zoning District of the "Beach Club Site"
shown as Tract "A" on the plat of "Ocean
Front Section of Bay Harbor, recorded in
plat book 44, page 27, of the public records
of Dade County, Florida, located at 10201
Collins Avenue i n Bal Harbour; amending
Section 21-78 "District Map," Section 21-147
"Boundary Designation" and Section 21-282
"Boundary Designation" of Chapter 21
"Zoning" of the Bal Harbour Village Code to
reflect the rezoning of the property as
described above; providing severability;
providing an effective date.
MAYOR SP IE GEL: And we'll open the
public hearing on this and we'll have the
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proponents speak at this time.
MR. WEISS: Mayor, this is a
continuation of our earlier public hearing.
What I'd like to do is if there's anybody
who's going to testify today or speak on
this item they need to be sworn in.
Clerk will swear you in at this time.
The
All
people who are going to speak or test ify
should rise.
(Thereupon, all persons concerned were
duly sworn by the Clerk.)
MAYOR SPIEGEL:
please.
Okay. First speaker,
MR. SCHULMAN: Madam
MAYOR SPIEGEL: Give your name, please.
MR. SCHULMAN: Am I speaking loud
enough for everyone in the audience?
MAYOR SPIEGEL:
back there?
MR. SCHULMAN:
Can everyone hear hi m
Mayor Spiegel and
Me mbers of the Council, my name is Cliff
Schulman. I'm an att orney with offices at
1221 Brickell Avenue, Mi am i, Florida, with
the law firm of Greenberg, Traurig.
It's a pleasure to be here, especially
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in such a beautiful edifice that you now
have available to you, as opposed to the
close quarters we were in the last time.
And I will attempt, in deference to the
surroundings, to be as righteous in my
presentation as I can.
But in my 25 years of practice I will
admit that this is the first time I have
ever made a zoning presentation in a church.
But things happen, right?
MAYOR SPIEGEL: There's always a first
time.
MR. SCHULMAN: Madam Mayor and Members
of the Council, because this is a
continuation and because there are numerous
people who are here, I'm going to try and
not be repetitious today other than to try
to summarize what took place at the last
hearing, rather than be repetitive.
MAYOR SPIEGEL: Thank you.
MR. SCHULMAN: The issue as I indicated
at the last hearing before you today is when
I say merely a zoning change, that is not to
denigrate the importance of it but to
indicate to you that the issue before you
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today is not the exact type of use to
ultimately be put on this property since it
would if zoned be ocean front and allow
either a hotel, a condominium or both or an
apartment.
We're not here to discuss the nature of
that particular construction because that is
something which would come before you in the
futur e or if designed otherwise would go
through your building plan section. So
we're not here to discuss those issues.
We're really here to discuss a
relatively narrow issue and that is whether
or not the land use classification is proper
f or this parcel. I have the utmost respect
for those people who are here today to talk.
This is as you know a quasi judicial
proceeding as opposed to your normal
run-of-the-mill but important nonetheless
legislative proceeding. And what that means
is that t oday you put on a differ e nt hat.
You put on a judicial hat. And you act as
judges of competent substantial evidence,
not by plebiscite.
Today is not a plebiscite. And merely
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a count of heads is not the proper standard
to utilize in zoning changes. And with that
in mind we came to you. And I would like to
incorporate into the record our presentation
at the last meeting and those exhibits which
we presented to you and which were duly and
properly marked by your Clerk.
I would like to indicate that with me
today is Mr. Harvey Sasso (phonetic) from
Coastal Systems International, a
professional coastal engineer, to answer any
questions that you may have on those issues.
Also Mr. Bruce Chatterington (phonetic) who
is a professional planner, Henry Von Bred
(phonetic), transportation analysis
professional, David Dabney (phonetic), an
appraiser with Real Estate Economics
Associates and Charles Seeger (phonetic).
And their resumes were submitted to the
Clerk and any data I have I will give to you
at the end of my presentation.
But in summary you know the parcel as
well if not a lot better than I do. 5.5
acres, 400 foot frontage on Collins Avenue
and on the ocean. It is bracketed on either
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side by approximately 13 other condominium
hotels that are zoned ocean front.
We presented to you your own staff
report which encompasses what we call the
three Cs. And that is that the proposed
rezoning was consistent with your Master
Plan, compatible with the surrounding
development and met all currency standards
of applicable state statutes.
That report also indicated and the
state statutes which were involved indicated
that your Master Plan which is presently in
effect and which you approved earlier this
year found that this proposal was important.
And in fact this site has been identified
since 1989 in your Master Plan as being
capable of being used for hotel, condominium
and an ocean-front type of usage.
What we would bring to your attention
is that in situations like this when you do
have this type of development on either side
of a parcel, we believe that the failure to
actually zone that parcel properly, as those
to the north and south are, really
constitutes what is called in the trade spot
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zoning in reverse.
And that is i t is improper to zone a
piece of property. It is spot zoning. If
you, for e xampl e , take a commercial piece of
property and surround it with residential
pieces of property, that could be called
spot zoning.
To fail to zone a p i ece of pr o perty
consistent with the uses to the north and
south of it is what the courts have called
in a number of decisions reverse spot zoning
or spot zoning in reverse.
Now, at the time of our last hearing
one of the things which we also brought to
your attention was that the existing beach
club is not and has not been functioning as
a viable economic us e of this property for a
number of years.
And Mr. Hannan (phonetic) was here at
that point in time presenting evidence to
you as a professional expert in the
appraisal business that dealt with both
national and localized uses of clubs. And
the fact that this club was in financial
distress was not atypical from the national
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point of view. And that testimony is set
out extensively in the record and will not
be repeated here.
But questions were raised during the
last meeting regarding the actual finances
of the club and other similar clubs. And we
asked real estate appraisers and
consultants, and Mr. Dabney is here today
and will speak to you in just a moment, to
take a look at both the local clubs as well
as this particular club to clarify any of
the misconceptions that may have been raised
at the last hearing.
And for purposes of the record we would
submit into the record Mr. Dabney's
qualifications and resume. And David, if
you could come up and introduce yourself
briefly to the Board and indicate what your
studies supplemental to the last hearing
have disclosed.
MR. DABNEY: Good afternoon. My name
is David Dabney and I'm a Senior Vice
President with Appraisal and Real Estate
Economics Associates in Miami. I do have a
couple of exhibits to provide you with. I
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hope that the audience can hear me okay.
Michael Hannan, as Cliff mentioned,
spoke at the last hearing. And at that time
there was a couple of issues raised
regarding the club's operations itself,
historically speaking, as well as other
beach clubs and private clubs similarly
situated.
Mike did at the time of the last
meeting talk to you about the fact that
private clubs are undergoing major
demographic and economic changes when
they're just generally not feasible anymore.
Basically private clubs are losing money and
memberships. It's not just a local
situation but it's a nationwide situation.
However, as it turns out Florida and
Arizona happen to be the two situations
where the private clubs are losing the most
money in memberships because of the aging
populations in both these states. The only
clubs that we have ever been able to find
that are successful are those that are
linked to a very large hotel and/or golf
courses.
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The truth in fact is that even most of
those aren't successful. For instance, of
the clubs that we looked at and that are
presented before you only Turnberry Isle
actually makes money. But they actually
have a beach club component to Turnberry
Isle which doesn't make any money and is
only there as an amenity for the guests.
Even Williams Island was contemplating
putting in a beach club but they changed
their mind on this because it is not
financially feasible.
The Dade County market has the
additional burden in that the ocean front
condominiums on Collins Avenue serve to give
the residents of those facilities the
recreational amenities they need, including
the beach, as well as the other recreational
amenities. And that further diminishes the
need for private clubs.
As you know when the club was first
built there wasn't the word condominium in
the vocabulary but since 1962 there are
2,900 condominiums on Bal Harbour Beach.
And, of course, i n Dade County we've gone
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from zero condominiums to 180,0000
condominium units during that same
timeframe, '62 to '97, and many of these are
on the beach.
Mike had mentioned to you the last time
that expenses were very high and now we have
looked at the historicals of the club. But
even then we could tell you that just since
1991 the real estate tax burden has gone
from $131,000 to $225,000 just on real
estate taxes alone.
In looking at the financials there's an
exhibit before you that does show an 11 year
history of the club. And as you can see
uniformly throughout that 11 year period
there have been operating losses. Now, you
have to understand, of course, that we're
dealing with a substantially depreciated
asset.
When you look physically at the club it
has physical depreciation to it in its age.
There's a lot of functional obsolescence to
it in that it doesn't really meet the design
criteria that people would want today. And
furthermore it also contains what's called
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in the trade economic obsolescence, which
means that because of those demographic
changes that we spoke about there is more
limited demand.
From 1985 to 1987 losses have been
sustained in all those years. Since '92 the
average annual loss has been approximately
$550,000 per year. At the beginning of '92
the retained deficit up to that point was
$1.1 million and then, of course, the club
has been sustaining $550,000 type losses per
year since that time. So that would be the
reason for the increased debt, to try to
take care of those losses. In the last
three years the deficits have been between
$733,000 and $974,000 per year.
Moving to the other clubs we have
looked at the Bath Club, the Surf Club,
Fisher Island Club, Mar-a-Largo, the Fisher
Island C l ub, La Goree, Turnberry, which we
talked about and we'll go over again.
The Bath Club is trying to pay off $5.5
million in debt that it borrowed for
renovations and shortfalls. It's still
sustaining an operating loss. It thought it
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was going to get 700 members but they're at
225. They have had to negotiate or begin to
negotiate to sell off all of their
development rights just so they can deal
with the debt .
The Surf Club is also operating at a
deficit. Mar-a-Largo, we even went and
looke d at the creme-de-la-creme, if you
will. And Mar-a-Largo and Fisher Island
Club are both losing or bleeding is a better
word when you look at the amount of money
that these private clubs are losing.
Mar-a-Largo itself is losing over $3
million a year. No wonder Donald Trump
turned it into an equity membership because
people were, of course, playing while he was
paying. And now he ha s turned the situation
around so that the equity members are
sustaining the losses.
Fisher Island Club is no exception.
It's losing over $2 million, as it has over
the last five years been losing $2 million
or more on the average per year. La Goree,
of course, is a golf club and country club
but it is under the gun in terms of
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sustaining losses. And lastly Deering Bay
is being developer subsidized. As I said,
Turnberry is the only one that is actually
turning a profit but, of course, it has a
huge hotel and golf course operation .
In short, these clubs are not feasible,
they're not viable and they 're not a
reasonable use of the property . An d whether
or not you look at it as a club or in the
alternative 13 single-family homes, the
answer is the same. That also wou l d not be
a reasonable, viable or feasible use of the
property.
That completes my presentation. Thank
you.
MR. SHUBIN: Will I have an opportunity
to cross examine Mr. Dabney? What is the
Council's preference with respect to the
order?
MR. WEISS: You can ce rt ainly cross
examine him and it's up to you. If you'd
like to do i t at this time you can or in
your case.
MR. SHUBIN:
it will benefit.
However the Council feels
If you would like me t o
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cross examine him now.
MAYOR SPIEGEL:
name and address.
Please give us your
MR. SHUBIN: My name is John Shubin of
the law firm of Shubin & Bass. I'm joined
here today by my partner Jeffrey Bass. I
will read into the record at my presentation
the clients which I'm representing today who
are all in opposition to the proposal.
offices are at 46 S.W. 1st Street in the
city of Miami.
Whatever your preference is with
respect to cross examination.
MAYOR SPIEGEL: Go ahead.
My
MR. SHUBIN: Mr. Dabney, is it your
testimony here today that you reviewed the
financial information related to the clubs
that are identified in your club membership
summary?
MR. DABNEY: In one form or another,
that's correct, sir.
MR. SHUBIN: Could you please be more
specific as to what items you reviewed with
respect to the particular clubs identified
in the summary?
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MR. DABNEY: In relation to the Bath
Club, the Surf Club, La Goree and Deering
Bay we spoke to the general managers who
gave us the i nformation, as well as
physically inspecting the sites. As i t
relates to Mar-a-Largo and Fisher Island
Club, we have proprietary information on
those clubs.
And as far as it relates to Turnberry,
we spoke to the general manager of
Turnberry. We are the consultants to clubs
and properties that are owned by Fisher
Island and Mar-a-Largo.
MR. SHUBIN: Do you have personal
knowledge as to whether or not any of the
clubs identified in your club membership
summary have presently made a decision to
cease their operating activities as clubs?
MR. DABNEY: No. Although in the case
of many of these clubs such as Mar-a-Largo
and Fisher Island Club and Deering Bay, the
developer, of course, was very happy or is
very willing to cease his operations.
MR. SHUBIN: Well, let's focus in on
the Bath Club and the Surf Club. You would
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agree with me that these are both beach
clubs; is that correct, sir?
MR. DABNEY:
MR. SHUBIN:
That's correct.
If either of them
contemplated --excuse me, has either of
them proposed a cessation of their
activities as clubs?
MR. DABNEY: No. Each one has its own
way of dealing with their deficits. On the
one hand the Bath Club is negotiating to
sell its development rights. And they
underwent a major renovation which doesn't
seemed to have panned out for them.
the other hand the Surf Club is just
And on
operating at a deficit. The answer is
however, they're both continuing to operate.
MR. SHUBIN: So the facts that clubs
are operating at a deficit, doesn't
necessarily mean that they are no longer
viable as club entities?
MR. DABNEY: Well, I would disagree
with that. If you are operating at
substantial def i cits, I don't think that is
a viable entity.
MR. SHUBIN: Have you considered the
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financial inf ormation of the Indian Creek
Country Club?
MR. DABNEY: No. We only had enough
time to look at a representative sample of
the best clubs, as well as the clubs that
are nearby, so we weren't able to do that.
Keep in mind that is a golf course and
country club and it's in a different class
than the subject property.
Now, excuse me. I apologize, I didn't
mean to put it that way. I meant in terms
of its amenities and that it has a golf
course as opposed to a beach club.
MR. SHUBIN: Now, with respect to the
Bath Club, I think it was your testimony
that they are either contemplating or had
agreed to the sale of their development
rights. Can you be more specific?
MR. DABNEY: It is my understanding
that they have incurred $5.5 million in debt
that the owner --excuse me, the members are
having to pay back under special
assessments. In an effort to deal with that
they are, I understand, negotiating to sell
their developments rights so that they could
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liquidate that debt. T hat's my knowledge.
MR. SHUBIN: A couple of more
questions.
But not withstanding the fact that they
have agreed to sell their development
rights, is it not your testimony that they
are agreeing to continue their operation as
a club in connection with any contemplated
development that would occur as to their
development rights?
MR. DABNEY: That's true. But, of
course, by selling your development rights
you have automatically acknowledged the
non-viability of the club.
MR. SHUBIN: Do you have a personal
opinion as to whether or not it would be
possible for the Bal Harbour Club to sell
some of its development rights and continue
its operation in connection with an ongoing
development?
MR. DABNEY: The Bal Harbour Club is
losing in ~uch a sustaining way so much
money that no, I don't believe it would be
viable for it to sell development rights and
try to maintain operations. Keep in mind
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it's a substantially physically depreciated
asset with economic obsolescence, functional
obsolescence and physical obsolescence.
do not believe that would be prudent or
viable.
I
MR. SHUBIN: Do you know if there would
be limitations on the amount of development
rights that could occur on the site if the
club were to be reconstructed for example or
were to continue its existence in connection
with a development, either as a hotel,
single family or multi-family?
MR. DABNEY:
that for me?
MR. SHUBIN:
Could you please rephrase
I'm asking you if you have
considered the possibility of --excuse me,
I'm asking you if you have examined whether
or not there would be restrictions on the
development rights that could occur with
respect to development that were to take
place on the site in connection with an
ongoing club?
MR. DABNEY: I'm not aware of
restrictions. What I'm aware of is a parcel
that is zoned PC and that is trying to get a
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change of zoning to OF. And whether or not
during the development approval process
restrictions would be put on the property, I
don't know.
MR. SHUBIN: Is it your position that
th e club cannot continue legally on this
site if there is a single family or a
multi-family residential project that is on
the site with it?
MR. DABNEY: I would defer to legal
counsel for a legal opinion.
MR. SHUBIN: I have no fu r ther
questions.
MR. SCHULMAN: Mayor and Members of the
Council, to try to wrap up I would like to
put into the r e cord the letter from th e
Department of Community Affairs of the State
of Florida dated May 8th, 1987, finding your
earlier ENR based amendments in compliance.
And this notice that was filed in the
public record of that. As well as a copy of
Chapter 163.3194 (l)(b) Florida Statutes,
which I showed you in a blown up form the
last time, which said that once your
amendments are passed, they are the ones
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that take precedence during the interim
period.
And lastly some may tell you and some
have said at the last hearing the club is a
tradition and history having been there.
And clearly that's true. And nor would I
foolishly ignore that. The club predates
even my living in Miami. That is not an
answer, that's merely a statement of fact.
Merely because something has been there
is not an entitlement for the public to
maintain it forever if the zoning on it is
improper and is not proper legal standard.
When the club was established there was in
fact in the plat of the original village,
which I pointed out to you the last time, a
timeframe that the creators of this
municipality said that there was to be, an
explicit restriction on how long that club
could or should be there.
In other words the creators of, and I
told you this the last time and I apologize
for the repetition, that the creators of Bay
Harbour which was the original plat
designation of Bal Harbour. And that
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restriction said that it was reserved for
the use of the private beach club for a
period of not more than 20 years. On
January 1st, 1945 they put a number on how
long they themselves, the creators, were
willing to bind this property to remain with
that use. And that number expired in 1965.
And so what we've shown you we believe
today and during the last presentation is
that traffic standards are met according to
your Master Plan, hot portable water,
sanitary sewers, solid waste, drainage,
recreation and open space.
With this property either removed from
your recreational open space inventory under
your land use Master Plan presently in
effect, you still have over 24 percent in
excess of that which your Master Plan
designates that is an acceptable level of
surface according to the various reports.
We most respectfully request that this
property at least today, and today remember
we're on first reading, that this property
should be rezoned and that it should be
rezone OF.
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MAYOR SPIEGEL: Thank you. Is there
on the anyone else that wishes to speak
proponents, proponents of the club?
All right.
opponents now.
MR. SHUBIN:
We'll listen to the
Madam Mayor and Members of
the Council, once again for the record my
name is John Shubin and I'm an attorney with
the law offices of Shubin and Bass at 46
S.E. 1st Street, in the city of Miami. I'm
here today joined by my partner Jeffrey
Bass.
We're here today representing the
interests of a number of residents in the
Village of Bal Harbour who are opposed to
the proposed rezoning. Let me read into the
record a representative sampling of names.
Nina and Douglas Rudolph, Gina and
Howard Berlin, Lewis and Deanna Elias,
Charles and Joan Brown, David and Alison
Levin, Edward and Karen Neal, Philip
Porticiero (phonetic), Lucille Robeizge, Leo
and Joni Blachar, Pearl Friedland, Rick and
Belinda Tuckerman, Adam and Janice Petrillo,
Thomas Welstead and William and Lisa Mccue.
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Let me at this point apologize to all
of you. I reviewed the transcript of the
October 21st hearing and I know there was
some reference to my absence. And I have to
reassure you that it was pressing business
but we're certainly prepared to go forward
today but I have a caveat.
When I r e viewed the transcript it
became apparent to me that many of you we re
l ooking fo r some sort of a Perry Mason
moment. That ther e would be some sort of
evidence that som eo ne wo uld be able to pull
out of their hat that would convince you at
the 11th hour that you should either vote
for this zoning or vote against the
r e zon i ng.
In fact, the evidence has been before
you from the very beginning in the form of a
report, a memorandum, from Mr. Micha e l
Miller, your Town Planner. I'm going to get
to that in a second. And I'm going to
explain to you h o w that report, standing on
its own in addition t o o ther comments that I
might mak e , support the denial of the
rezoning.
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Now, typically I'm a lot more
theatrical and flamboyant in these sorts of
proceedings. But I guess because we're in a
church I'm going to be very serious and I'm
going to keep it to the law, because I think
you want to hear what the legal standards
are. And with all respect to Mr. Schulman,
he did not specifically explain to you what
your options were and what the law allows
you to do in a circumstance such as this.
So let me try to work you through some
of the cases as they've been articulated by
the Florida Supreme Court and other courts
in this jurisdiction. It's a little boring
but I need to do it for the record.
The first case is a landmark case in
zoning. It's the case of County
Commissioners of Brevard County versus
Schneider. And that's the case in which the
Florida Supreme Court addressed the issue of
whether or not a zoning body like yours was
required to rezone a piece of property to
make it consistent with the Master Plan,
specifically whether you were required to up
zone a piece of property to the highest
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density allowed in the Master Plan.
Now, that's very similar to Mr.
Schulman's argument. He didn't make it
exactly today, but I think he's told you
many times that really the Master Plan is
what binds you and that all zoning has to be
consistent with the Master Plan. That's
absolutely correct but that doesn't mean
that you are required to up zone everything
to the highest density allowed in the Master
Plan.
And let me just read to you from
Schneider. It's 627 So.2nd 469. It deals
with the specific issue of the effect of the
Master Plan. And specifically it says, and
this is the Supreme Court of Florida
speaking in 1993, further we cannot accept
the proposition that once the land owner
demonstrates that the proposed use is
consistent with the Comprehensive Plan, he
is presumptively entitled to this use unless
the opposing governmental agency proves by
clear and convincing evidence that
specifically public necessity requires a
more restrictive use.
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We do not believe that a property owner
is necessarily entitled to relief by proving
inconsistency when the Board action is also
consistent with the plan. They go on to
note later on in their closing, we hold that
the land owner seeking to rezone property
has the burden of proving that the proposal
is consistent with the Comprehensive Plan
and complies with all procedural
requirements of the zoning ordinance.
At this point the burden shifts to the
government Board to demonstrate that
maintaining the existing zoning
classification with respect to the property
accomplishes a legitimate public purpose.
And it goes on to say in effect the land
owner's traditional remedies will be assumed
within this rule and the Board will now have
the burden of showing that the refusal to
rezone is not arbitrary, discriminatory or
unreasonable.
So the fact that the Master Plan allows
it does not compel it. The issue is is
there a legitimate public purpose to
maintain the existing zoning classification.
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And two, is the existing zoning
classification consistent with your Master
Plan. I'm going to get to it in greater
detail in a second, but if you read the
staff recommendation, your staff concludes
without taking an opinion as to what is the
best use, that both uses are consistent with
the Master Plan.
In this regard the standard that's been
re-enunciated as recently as 1997 in the
case of Martin County versus usom
(phonetic). And I will just simply note
again that the Court noted that in reaching
this decision they talk about Schneider.
We stress that in quasi judicial
rezonig proceedings, the land owner has the
burden of proving that the proposal is
consistent with the Comprehensive Plan and
complies with all procedural requirements of
the zoning ordinance before the burden
shifts to the government to demonstrate that
the existing zoning classification
accomplishes a legitimate public purpose.
There's a footnote. And the footnote
goes on to say we additionally noted that
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even in a situation in which the denial of
the zoning application would be inconsistent
with the plan, the local government should
have the discretion to decide that the
maximum development density should not be
allowed, provided the government approves
some development that is consistent with the
plan and the decision is supported by
competent substantial evidence.
What is competent and substantial
evidence? Mr. Schulman correctly tells you
that you cannot zone by plebiscite. You
cannot ask everyone to raise their hands and
tell you whether to vote aye or nay. That
you have to look at evidence. Now, again,
it's not necessarily that Perry Mason moment
of reaching into the briefcase and finding
the hidden document.
It's a lot more than that and sometimes
a lot less than that. And in a case in
which I was privileged to have played a
role, the case of Dade County versus
Bl umenthal in which Mr. Schulman was also
involved in, the 3rd District Court of
Appeals gets into the issue of what happens
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when a zoning jurisdiction like yours is
faced with two competing decisions, both of
which are equally consistent with the plan.
And in this case the Dade County
Commission had denied a rezoning of Mr.
Schulman's client. The Appellate Court had
reversed saying that there wasn't competent
evidence, there was just testimony of
neighbors.
And on appeal the 3rd District said
that the competent evidence could be the
testimony of neighbors as long as they were
pointing to evidence that was properly
before you. Your administrative record,
your graphs, your charts, your aerial
surveys.
But most importantly to our position
here today is a discussion that took place
with respect to a court second guessing a
commission. What does a commission do when
it's faced with two different proposals that
are consistent with the plan? A denial in
this case which your staff has said is
consistent and an approval which your staff
has also said would be consistent.
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And the Court went on to say could the
County Commission have made a different
determination on these same facts? Of
course it could. And I'm reading from 675
So.2nd 598 at page 606. The developer made
a very respectable argument that his project
could be distinguished from the remainder of
the area.
He urged that the apartment complex
would blend with a commercial and office
area along Northwest 41st Street. The
developer also argued that the golf course
on the east side of Northwest 107th Avenue
provided a proper buffer between the
proposed apartment complex and the
residential areas of Doral Park.
These are all perfectly reasonable
arguments. And if the County Commission had
chosen to accept those arguments there was a
factual basis in the record to support such
a decision. But the Court then went on to
say the point is when the facts are such it
is up to the County Commission to decide
between alternatives. It is up to the
County Commission to make that choice, not
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the circuit court.
Now, I will r e p e at to you that there is
substantial competent evidence in form of
your staff's recommendations in support of
the aerial surveys that would allow you to
make a determinat i on that the present zoning
is not confiscatory, it's not arbitrary and
it's not unreasonable and it's consistent
with your Master Plan.
A couple of more quick cases. Another
case in which our fi r m was involved, Dade
County versus Four Acres, 6988 So.2nd 281.
The Court went on to note in terms of
whether or not there was substantial
competent evidence whether or not the
neighborhood testimony was sufficient to
support the denial of an application.
The court said that the County
Commission had access to a record which
contained maps, reports and other
information which in conjunction with the
testimony of the neighbors, if believed by
the Commission, constituted competent
substantial evidence.
And lastly in this regard th e r e 's a
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recent case once again involving our firm
called Sheets (phonetic) versus Metropolitan
Dade County which was in the Circuit Court
Appellate Division. And in this case there
was a denial of a rezoning application where
the Master Plan specifically allowed
designated of the property for low density
residential. It was agricultural property
in the Redland area. It's a one paragraph
opinion. I'll read it.
In determining whether the record
contains substantial competent evidence to
support the County Commission's denial of
the appellant's petition for rezoning, this
Court is confined to reviewing the written
resolution passed by the Commission.
Based on the evidence elicited at the
hearing including aerial photographs of the
property at issue and adjoining properties
in this area, this Court finds that the
Commission had competent substantial
evidence to concluded that the requested
rezoning, quote, would be incompatible with
the neighborhood and area concerned and
would be in conflict with the principle and
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intent for the plan of the development of
Dade County, Florida.
In this case the Commission could
recently decide that it was premature to
rezone the agricultural property at issue to
allow for modified single-family residential
development, notwithstanding the fact that
the Dade County comprehensive plan allows
for low density residential development of
this property.
Moreover, the County Commission could
reasonably conclude that the proposed zoning
was incompatible with the adjoining
agricultural property and/or other
residential development in the area.
Let me go to my next folder and I'll
wrap up.
So according to the cases that we've
cited, the Supreme Court, the 3rd District
Court of Appeals, there are a couple of
issues that you have to address. The first
is whether or not there would be a
legitimate public purpose served by
maintaining the existing zoning
classification which would be private club.
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Two, whether or not the maintenance of
the private club category would be
consistent with your Master Plan. And then
there's a third issue that is probably
reserved to a later date that deals with
whether or not if you were denied this
application, it would be confiscatory.
Would it deny the property owner of all
economically viable use of their land.
If you look to your professional
memorandum, let me bring a couple of things
to your attention. And I guess by way of
clarification one of the things that I would
like to do as a housekeeping matter is
incorporate into this record the transcript
of the last proc ee ding, the memorandum from
Michael Miller, which I think is a part of
the record, all of your ordinances including
your concurrency management ordinance, your
Master Plan, and any other aer i al
photographs that have been introduced into
evidence showing how this property relates
to the Village of Bal Harbour.
On page two Mr. Miller goes into the
history of the private beach club zoning for
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the property. And in his first full
paragraph he makes this specific finding,
and this is your professional staff, and
this is competent substantial evidence.
This is not ne i ghbors talk i ng, this is your
planner.
That the current PC zoning recognizes
the existing use and is also consistent with
the comprehensive plan as such uses are
permitted in the RH category. That's a very
important finding in light of what I've read
t o you as to what the legal standards are
for you to follow.
ASSISTANT MAYOR HIRSCHL: Would you
tell us the date of the memorandum you're
referring to?
MR. SHUBIN:
1997 memorandum.
This is the August 28th,
Th e oth e r aspect of the memorandum
which I th i nk is quite significant and wa3s
certainly informative for me was the history
of the Master Planned community that is the
Village of Bal Harbour or Bay Harb o r,
depending on the plat that you looked at.
And Mr. Miller goes into the fact that
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this was Master Planned by the firm of Arlin
Bartholomew (phonetic} & Associates. They
were certainly leading planners in their
day. And there is a logic behind the Master
Plan, particular the spine that runs through
the center of the village that starts at the
marina to the west and goes to the beach
club at the east.
And I think that it is referred to by
Mr. Miller as a central east-west spine of
open space with active recreational uses on
both ends was included. And it says the
primary purpose of the beach club was to
provide residents with a complex of active
recreational and passive uses.
Now, what you're really being asked to
consider is a proposal that would
fundamentally undermine the original Master
Plan logic to this community. I don't want
to exaggerate it but I'm trying to find a
way to compare it. It's like being asked to
realign a boulevard or moving Central Park.
There was a precise logic to this
Master Plan community. And this proposal
violates the integrity of the original
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Master Plan community which is Bal Harbour.
And when you sit back and you ask yourself
what is a legitimate public purpose, is it
legitimate for us as the trustees of the
village to protect the original integrity of
this Master Plan community?
I would submit to you that that is a
legitimate purpose. And it is particularly
legitimate as a public purpose because of
the fact that the open space creates
recreational areas an additional access to
the beach.
Now, Mr. Schulman might come back and
he says yes, it's a private club. And I
really do not want to use this forum for a
lengthy history of the club. Most of you
know it a lot better than I do. But as I
understand the club, and I will stand
corrected, is that in its present status
there has always been an opportunity for
those residents who are not on the beach,
who are in the residential areas, to have an
opportunity to join the beach club if they
so choose and to have the opportunity to use
that beach access, something that they do
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not have.
Something that is not available to them
to the extent that it would be available to
someone who lives in one of the condominiums
or the multi-family residential projects,
apartments or condominiums on the Collins
Avenue ocean side. This is essential to how
you survive as a community, how you live as
a community, because there are choices as to
recreation space, open space, view
corridors.
And as trustees of the village I think
you have an obligation that certainly raises
that of a legitimate public purpose to do
your best to maintain the integrity for the
current residents of Bal Harbour and for the
future residents of Bal Harbour.
Now, the issue of open space and
recreation and beach access is not just
rhetoric that I 1 m using to convince you that
you should deny the rezoning application.
Your staff report also emphasizes the
importance of beach access and the
significance of beach access.
And I can tell you that just like Mr.
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Schulman tells you today that you're not
here to discuss the use, you're not here to
discuss what the building looks like. You
also hav e no assurances from this developer
that there will be beach access in
perpetuity, what the beach access will look
like, how that beach access will relate to
whatever could be proposed on the property
and whether or not the develop e r would waive
any claim that he might have as to the
imposition of a beach access which you deem
to be in the best interest of the residents
of Bal Harbour.
But more importantly you have a
concu r rency issue and your report goes into
some level of detail. And I have been
unable to sort of square the circle on it.
But i f y o u read the report it specifically
notes that th e re's a certain acreage of
land --you've adopted levels of service,
LOS criteria for parks and open spaces, 2.75
acres of land for 1,000 people.
And according to you r sta f f report you
need 8.37 acres of land to meet the adopted
LOS criteria. Now, under your Land
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Development Regulations and under the custom
you have counted 50 percent of the beach
site, of the beach club, towards your open
space and recreation levels of service.
And the report goes on to note that the
credit of 2.75 acres of land is received
from the beach club site and the loss of the
land credit would drop the available acreage
below the adopted level of service. And the
report goes on to note that the Village
cannot issue a development order unless this
item is resolved.
Now, Mr. Miller then goes on to note
that there have been some proposed EIPAR
based amendments that were related to the
ones that you just voted on that may have
remedied this problem to the extent that you
may have made a decision, intentional or
unintentional, to count each space towards
your open space and recreation requirements.
I would submit to you though as a
matter of law that what is binding on this
counsel is the Land Development Regulations
and not the future goals, policies and
objectives regarding the opportunity to
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count each space towards your open space
requirement.
And I think you may need to make
further inquiry of staff, of Mr. Miller, to
sort of resolve this. But it is this firm's
opinion and it is my opinion that as you
presently sit here today, the Land
Development Regulations would control. They
would not allow you to count the beach as
open space and you might have some serious
concurrency issues if you allowed this
rezoning to go forward.
And it's also unclear from this report
and was also unclear from the transcript,
that although Mr. Miller said that he had
calculated for example the Majestic and
although he had calculated the potential
traffic which would be generated based on
certain assumptions from this project.
It's unclear from his testimony as to
whether or not he calculated how the new
residents that will be moving in presumably
to this building would then increase the
levels of open space that would be required
under your Land Development Regulations.
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Because remember, they are linked to the
number of people in Bal Harbour. You
increase the number of people, you then
increase the requirement for public land
simultaneously and your staff report is
telling you you're decreasing the open space
and recreation areas under this proposal.
Now, I'm really going to try to wrap it
up. But there has been talk about
legitimate public purposes and I want it to
be absolutely clear to you that some of the
concepts I've talked about such as
maintaining the basic integrity of your
Master Plan community and the logic of
aligning your Master Plan community to the
west to east spine, the preservation of
beach access, the preservation of open
space, the preservation of views, the entire
integrity that was created by your original
Master Plan.
Mr. Schulman may come up and say that's
all pie in the sky. I have property rights.
My client has property rights. There's no
legitimate public purpose served by
maintaining a view corridor, by maintaining
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a low level west to east spine of passive
and active recreation spaces that are
maintained in quasi public or semi-public
facilities.
All you have to do is look to your own
ordinances which have specific provisions
with respect to beach access and the
importance of beach access. Mr. Miller goes
on to note in his report that the beach
access is an important policy. And I'm just
going to run through them without reading
any of them some of the Florida Statutes
which touch upon the importance of open
space with beach access, particularly in
urban areas like Bal Harbour which has
become an open area.
I would point to Sections 161.053 which
deal with the coastal construction and
excavation. I would direct your attention
to Florida Statutes 161.55 which deal with
activities for construction within the
costal building zone where there is a
specific emphasis put on public access.
I would direct your attention to
Florida Statute 163.3177 which deal with the
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elements of your Comprehensive Plan,
particular the coastal management elements
and how they require a recreation and an
open space element, indicating a
comprehensive system of public and private
sites for recreation, including but not
limited to natural resource parks and
playgrounds, parkways, beaches, and public
access to beaches, open spaces and other
recreational facilities.
I would direct your attention to
Section 163.3178 of the Florida Statutes
which requires in a coastal management
proponent a shor e line use component which
identifies public access to beach and
shoreline areas and addresses the need for
water dependent and water related facilities
including marinas along shoreline areas.
Clearly the beach club is a water related
area.
The State's own Comprehensive Plan,
Section 187.201 the Florida Statues for the
State makes a commitment to accelerate
public acquisition of coastal and beach
front land where necessary to protect
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coastal and marine resources. And where it
makes a commitment to ensure the public's
right to reasonable access, reasonable
access to beaches.
Finally Section 259.101 which deals
with the Florida Preservation 2000 Act and
it deals with the F l orida Community Trust
Program. And it makes a very spec i fic
proclamation as to the purposes of the trust
program. It's to protect and preserve open
space and recreation properties within urban
areas where pristine animal and plant
communities no longer exist. These areas
are often overlooked in other programs
because of their small size in proximity to
develop property.
These smaller parcels are, however,
critically important to the quality of life
for residents who live there, as well as
many vis i tors to the state. These are
legitimate purposes. And if there's any
question, I've finally in conclusion brought
out a treatise. I didn't bring out the
entire treatise of Professor Williams. And
it's one of the mos recognized treatises on
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planning law and it's from Volume 5, the
supplement.
And he's concluding on a number of
different approaches that have been taken in
various jurisdictions to preserve the
integrity of scenic vistas, open spaces,
preserve esthetics, preserve the integrity
of a community. And he concludes by saying
the 20th Century has seen a fairly steady
progression toward clarification of legal
doctrine on esthetic regulations in two
respects; the importance in the legal
community of encouraging esthetics in the
environment and an increasing sophistication
on how to define esthetic problems in such a
way to make them subject to the rule of law
with equal treatment for all.
As far as scenic protection is
concerned the three major new decision,
since we're referring to the decisions
stated earlier in the chapter, at the end of
the '80s it crystallized a situation. For
an authority to experience that in
importance states we have A, that the height
of the buildings may remain restricted to
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preserve the vista of a major mountain
range.
The new development in residential
neighborhood may b e held up and
modificat i ons may be required if a proposed
deve l opment would block neighbor's views and
C, a County division may prescribe a color
of a house.
Legal p r otection of scenic values is a
legitimate goal o f public endeavor at least
so long as the scenic value may be clearly
defined. And it must not be forgotten that
that Supreme Court of the United States
off e rs general rhetorical support along
these same lin e s.
You have competent substantial evidence
as it is defined by the case law to support
the maintenance of the existing zoning
category for the site. There has been no
competent ev i dence that the maintenance of
this si te, th e zoning category, would be
inconsist e nt with the Master Plan. To the
contrary the staff tells you that it would
be consistent.
So there is no evidence other than some
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anecdotal evidence about the economic
situation for clubs that would suggest to
you that this would be confiscatory, that it
would deprive them of all economically
viable use of the property. In fact, your
professional staff has also said that there
is within the private club zoning category
the opportunity for single family
residences.
If you have any further questions --I
know I've inundated you with a lot of
materials. If you have any questions or
need any explanation I certainly would
remain available to answer your questions.
And on the issue of spot zoning,
there's a case --Mr. Schulman raised the
issue of spot zoning and I'm reading from a
case one of his partners was involved in,
this City Attorney for the City of Miami.
It's the City of Miami versus the Woodlawn
Park Cemetery and that's at 553 So.2nd 1227.
And the Woodlawn case references spot
zoning in the context where there is no
justifiable reason for maintaining the
existing zoning category. I've spoken to
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that at great length. If any of you would
like to read the opinion or have further
analysis of the opinion, I can make it
available to you. But I do believe there is
competent substantial evidence to support
the denia l .
This is clearly in your hands. Just
like the Blumenthal case. You are faced
with two competing decis i ons, both of which
are supported by some degrees of competent
substantial evidence. We think that when
you weigh these two decisions,
overwhe l mingly the evidence in support of
ma i ntaining the existing zoning category and
denying the rezoning is extremely
compelling, particularly when what you're
being ask to do is to completely undermine
the integr i ty of a Master Plan that has
served this community well for almost 50
years and should serve it well hopefully for
the next 50 to 100 years.
MR. PAUL: My name is Dan Paul and I'm
an attorney with offices at Brickell Avenue,
Miami, Florida. And I represent a group of
concerned citizens in Bal Harbour who have
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been circulating over the last week or so a
petition. And a representative group of
those are Dorothy Preston, Mrs. Cal Covins,
Sandy Hirsh and Cheryl Goldberg for the
record. I would like to enter into the
record a copy of this petition and ask that
a copy be given to members of the Council if
I could.
And the hour is late so I'm not going
to repeat all of the arguments that Mr.
Shubin has given to you. I adopt those
arguments for the record and ask that they
be incorporated also as part of my remarks.
But I just want to say very briefly
that when this village was planned Mr.
Graham (phonetic) could obviously have made
more money if he had not dedicated a park in
the center spine of this village and had not
provided at each end of that park a marina
and a beach club or beach access.
Arlin Bartholomew (phonetic) who were
hired to do that original plan at that time
were the premiere land planners in the
United States so there was no skimping or
looking for somebody to come up with a short
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plan. And that plan has served this village
very well.
And that plan is now being challenged
by an attempt to rezone one end of that
dedicated park land to a high-rise. And I
ask the members of the Council when you
consider this application and you review the
evidence which has been put in the record to
dream a little.
Do you want it to happen on your watch
that the access to the beach was lost and
the open space was lost. I don't think you
do because 50 years from now the people who
come after us and who live in Bal Harbour,
if that access is lost and another great
high-rise is there and there is no open
space leading to the ocean and that's a
beautiful piece of property, they will think
we were all crazy not to protect that.
Even if you had to condemn it and buy
it. And that's one of the points that this
petition that's being circulated addresses
itself to. So I urge you to look at it not
just as a decision to be made today, next
week or within the next two or three weeks,
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but whether the decision you make now will
hold up 50 years from now as well as the
Arlin Bartholomew plan has held up since the
time it was done almost 50 years ago.
And I urge you to support that plan and
to keep the open space preserved in the
beach club site now. You've listened to
test i mony that beach clubs may not be a
success but that isn't correct.
The municipality of Miami Shores for
example owns a club and they run it for th e
benefit of the residen t s .. The Vil l age of
Golden Beach has a beach pavilion and access
which they run for the residents of Golden
Beach.
And there are all kinds of
possibilities from point of view of
municipal use and use for the citiz e ns of
that prop e rty without compromising th e Arlin
Bartholomew plan and open space in the
vi l lage.
We don't need to go to high-rise
zoning. Th e re are other opportunities for
the us e of that and I urge you to carefully
con s ider the ev i dence and the arguments Mr.
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Shubin has made because they support what
the decision ought to be in this case and I
would urge you to turn this zoning down.
Thank you.
MR. LEVY: Thank you. For the record
I'm William Levy. I'm a resident and owner
of a condominium at the Plaza which
overlooks the club and which I purchased in
large part because of its magnificent view
and because I assumed that the PC open
zoning at the club would continue
indefinitely.
I'm here in opposition to the zoning
for all the reasons that have been
previously heard. But I came here to raise
an entirely different is~ue, namely the
issue of conflict of interest. Now, all of
you are aware, I'm sure, that Florida State
Law bars the participation of any member in
a zoning proceeding who has a conflict of
interest for which I assume they mean stands
to benefit financially or otherwise from the
proposed rezoning.
And I want to make it crystal clear
that I do not question the objectivity or
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the integrity of the members of this
Council. I know you will reach a fair
objective and unbiased opinion. But I am
here because I feel that the public interest
requires more than a concern with an actual
conflict of interest.
You should be concerned with a
potential and apparent conflict of interest.
And to be specific it seems to me that any
real estate agent who is active in Bal
Harbour and who stands to benefit in the
future potentially or apparently from a
rezoning in which he or she could receive
commissions from the sale or a lease of the
rezoned premises, this Council should have a
concern about that kind of participation.
And for that reason I am asking all of
the members of this Council to affirm on the
record that now or at no time in the future
will they derive any financial benefit from
any rezoning that may result as a result of
this proceeding.
Thank you.
MR. NOTO: My name is Mario Noto and I
live on Bal Bay Drive and I'm a member, a
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proprietary member of the Bal Harbour Club.
And I have a statement. But before the
statement let me make this observation.
Some counsel here in speaking before me have
apparently created the perception that th e
issue before you is the accessibility to the
beach at the club site. That the people now
do have it. Let me correct that illusion.
As a Bal Harbour Club owner of the c lub
site access to the beach was permitted to
its members. A non-member could not come
through the street, notwithstanding whether
they lived in Bal Harbour or not, and gain
accessibility to the beach. So the record
should be cleared on that issue.
Let me make this statement. The public
n otice of the hearing invited interested
parties to be heard. I've accepted the
gracious invitation. I wish to address the
issue of the pending rezoning application
before the Town Council which was filed by
the Bal Harbour Club. Now, that's the issue
before you.
It is a controversial issue and it is
as painful as a toothache which won't go
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away until it's treated by a dentist. The
Council now have the responsibility to
determine whether the ocean front side of
the club shall be rezoned from private club
to ocean front.
That's the issue before you. I'm not a
spokesperson for anybody. I'm not
advocating for the development company or
any individual. I speak for myself and
those who may fortunately share my opinion.
I am beholden to nobody and I don't have any
personal agenda. In talking to you I'm
speaking for myself.
I was opposed actively to the sale of
the Bal Harbour Club. I opposed it
vigorously but unsuccessfully. But I have
reconciled myself to the fact that a
majority of the members of the club decided
to sell the property. In America a land
owner has the right to sell his property so
long as it is not violative of any law.
And the members perhaps unwisely in my
opinion chose to sell so the property sold.
There's no longer any dispute. The Bal
Harbour Club does not function, it does not
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exist. It has sold its site to a Canadian
development company called Ava Development.
I am certain that other members of this
community share a deep concern with a
continuing and escalating controversy which
is resulting from the sale and the pending
rezoning application. The reaction to both
has divided the community and I believe that
there is a real need for closure, to end
this.
I believe that when all the facts are
considered by you as members of the Council
that you will agree that rezoning is
warranted but also desirable to bring an end
to the escalating feud.
My purpose in addressing you is to
present to you a broad perspective. Not as
a legal issue, but I want to discuss it with
you as one of your neighbors, as one of your
friends. The facts underlying the club's
request so that you may really have them and
consider a fair and just decision based upon
the mer i ts and not in the abstract to serve
any self-serving interest.
The rezoning problem came into focus
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when the Bal Harbour Club sold its ocean
front club site to the Ava Development
Company, a Canadian developer who proposed
to construct a condominium building. This
site for more than two year and a half years
has produced a quagmire of charges,
countercharges and threats among the parties
involved who are involved in or affected by
the sale.
The magnitude of this problem is
exacerbated by the fact that as of today
there have been expenditures in excess of $2
million in legal fees. And the sale has not
been consummated yet and litigation is not
finished yet. There is pending litigation
now. So it is a rather serious concern.
Where do we go from here?
It should be recalled that three years
ago the Mayor of this Council, a dedicated
and highly respected member of the Council,
Saul Talbert {phonetic), three years ago he
advised us, the members of the club, in
writing to sell the site for $20 million to
a developer called Bishon (phonetic) who
would construct a condominium hotel complex.
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Mr. Talbert is one of the founders of
Bal Harbour. Certainly within his broad
vision he must have contemplated what was
right and what was wrong. And for him to
publicly advocate in writing that we the
membership should seriously consider and
sell to Mr. Bishon for the express purpose
of constructing a condominium building
deserves some consideration by you as a
Council.
It is public knowledge that at the last
Council election during the height of the
controversy surrounding the club sale some
elected members of the Council campaigned
for office on a platform opposing rezoning.
Well, such promises are indicative of a
preconceived judgment. I personally believe
that this was nothing but campaign rhetoric
based upon useless information and
incomplete data.
And I am certain as others are with new
and additional facts corning to light that a
rezoning decision can now be based upon an
accurate and a realistic basis. The club
application to refile as ocean front
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property was filed on June 27th, 1997. It
was made because the club has entered into a
contract for the sale of its ocean front
site with a Canadian developer who planned
construction of a condo building on the
land.
The contract for sale also provided for
the construction of a members beach club
adjacent to the condominium and an easement
to provide access to the beach for the
residents of Bal Harbour. The residents in
addition to the membership of the club. The
developer was also committed to a $3 million
renovation program to reconstruct the club's
yacht building and basin.
Although these changes were open
knowledge, nobody raised their voice in
protest before the sale of the club site.
There was an unequivocal categorical
acceptance that it was best for the
community.
The sale of the club site has produced
acrimony and bitterness which has resulted
in litigation and an unfortunate breach in
community relations. The members'
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opposition was directed upon the sale and
not upon any proposed construction. The
principal objections were we don't want the
club sold. But the majority of the members
do want the club sold.
So no thought was given to the proposed
construction. Nobody ever discussed any
objections to the proposed construction of
the condominium. The argument was simply we
don't want the club sold. But they lost. I
lost too. I didn't want the club sold.
But you don't have any alternative but
to accept the mandate of the majority.
There were only two very simple, uncornplex
issues which you have to consider in
adjudicating the rezoning application.
They're not complicated.
simple.
They're very
First the rezoning must be compatible
with neighboring property. That's the
ordinance. Is there any reason to doubt
that the proposed condominium by the Ava
Development Company will be compatible with
the neighboring property?
Two, the rezoning must be consistent
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with the Village Comprehensive Master Plan
for high density residential. Now, let me
quote from the Master Plan. Quote, the 5.5
acres club facility cou l d be developed as
high den si ty multi-fam i ly or hot e l in
accordance with the Village Code, end quot e .
Do you have any reasonable doubt that a
propos e d condominium construction would be
in compliance so long as its construction
adheres to the Village Code. Unless there
is a sustainable challenge to the club's
co mpliance with the zoning ordinance, the
club has earned from you the right to have
its rezoning application granted.
These plans for the rezoning we re
enacted for the benefit of all of Bal
Harbour, not for the club, not for th e
s e curity d i strict, but from one end to the
other of Bal Harbour. Similarly any
decision granting or denying the rezoning
must also benefit the citizens of Bal
Harbour.
I believe that the Council should
consider the merits of the opposition to
rezoning. There are some arguments that do
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have merit. But you have to balance the
arguments for and the arguments against.
And if you put them on the scale the club
does have the legal right to sell its
property.
unethical.
It is not doing anything
But there are people objecting to it.
I heard it today over and over again. The
club, the club, access to the beach, the
viability. What difference does it make?
If the Bal Harbour Club could have operated
on a running budget in excess of $1 million
a year if the majority of the members choose
to dispose of the property.
The club wasn't exactly sold for one
special reason. It was sold for a number of
reasons. Declining memberships, the lack of
funds to operate, the desirability of people
relinquishing their membership. So when you
put all of those things together, those were
the factors that motivated the sale and were
the basis for vote against the sale of the
club.
COUNCILMAN TANTLEFF: Excuse me, Madam
Mayor. We need to put a time limit. Do you
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want to start now?
MR. NOTO: I just listened to somebody
for 45 minutes. I'll be through in two
minutes.
MAYOR SPIEGEL: We'll let him finish.
MR. NOTO: It is common knowledge in
this village that I think you must be aware
of that some of the opponents are
non-proprietary members of the club who
believe that if they can actually succeed
with the rezoning the developer will not go
forward with the sale and they will thus
resuscitate the c l ub and they will come to
life again. This is unreal. It is a
fantasy and it's a futile attempt to breathe
life into something that is dead and it's
b e ing buried.
There are also non-members of the club
who are opposing rezoning because of the
proposed instruction to eliminate the open
beach space. If these opponents could
establish a failure of the club to meet
legal requirements, then they are right and
you should deny the zoning if they can
establish that with factual and credible
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evidence and if they can convince you that
they have produced the evidence for it.
The opposition deserves consideration
even though some who are opposing are people
who own condominiums on adjacent property
who purchased at a time when construction
was going on, so that what's good for the
goose is not good for the gander. Now some
of those who are opposing who own
condominiums on adjacent property or on the
line who purchased at a time when
construction was going on so that what's
good for the goose is not good for the
gander.
Now some opponents are also persons who
wanted the yacht club and basin renovated to
specifications for their use. Now the
developer may or may not fail to give it to
them. I don't know. And while these
objections are not controlling they are all
relevant to the rezoning process and should
be considered by the Council.
The Council must not allow itself to be
used by rezoning opponents as a back door to
undue or interfere with the sale of the club
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nor should it be used against the developer
for club improvement.
I am a proprietary member of the club.
I have friends corning to me for the
disposition of the club. We don't want the
club resuscitated. Now, proprietary members
of the club don't want to be held hostage to
payments. The clients of the club should be
allowed to rest in peace but the Council
will not surrender.
When all the facts are publicly
presented and deliberated by you
objectively, I believe that you can make an
informed judgment. Unsupported demands for
denial cannot justify a denial of rezoning.
The Council decision must be based upon
substantial and credible facts which have
been published and disclosed in a hearing.
If.
The opponents of rezoning are
dissatisfied with the law and the ordinances
applicable to the club they have a simple
remedy of changing the ordinances.
Thank you Mayor and members of the
Council.
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MR. REDSTEIN: Alec Redstein
(phonetic). 101 Collins Avenue. The
applicants here have a duty to make full
disclosure. They want a rezoning but
they're coming here with a Trojan horse.
Why they couldn't have come with full
details to specify where they want to put up
a hotel, whether they want to put up a one
story building, whatever they want.
This is a first step and it's a blank
check that they're asking for and for that
reason alone it should be turned down.
MAYOR SPIEGEL: We have a time limit
now.
MS. HOLDER: I have a five minute
speech. I am Sybille Holder. You have a
difficult task before you. You are being
asked to rezone Bal Harbour's beach front
property. Your lawyer is telling you that
it is compatible with the Master Plan and
there is no evidence that the rezon i ng will
have a negative impact on the community then
you must approve the rezoning.
This makes a mockery of the supposed
protection s of rezoning. On the other hand
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I think the evidence is pretty clear to all
of us who live here and I want to ask you to
be careful about what you consider.
Remember all the studies that showed that
smoking cigarettes was not harmful.
For instance the developer may provide
you with design studies that show that it
will fit right into the architecture and
design of this community. You have only to
look at the Majestic to know that huge
condominiums drastically decrease the
appearance. Stand in the Majestic 1 s huge
early afternoon shadow on the beach when you
review those designs.
The developer may provide you with
traffic studies that tell you that traffic
will not be a problem even when hundreds
more new residents move into the new
properties. You have only to look at rush
hour traffic on Collins Avenue and the 96th
Street Area to know that traffic has already
exceeded street capacity. To understand the
validity of traffic studies, read them when
you're stuck in traffic.
The developer provides a study that
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shows there is an adequate water supply for
hundreds of new apartments. How can that be
true when we have had to stop watering our
lawns and washing our cars. Read those
studies when you are sitting on your porch
overlooking your brown lawn.
The developer may show you a study that
shows there is an adequate electrical
supply. How can that be when we are told to
limit our heating during cold spells and
limit our air conditioning during hot spells
because there is too much load on the
system. Read those studies when you're
shivering and hoping the whole Dade County
power plant does not go out.
The developer may provide you with
studies that show there will not be too many
people on the beach to safely evacuate
during a hurricane and that there are
adequate shelters. Do not be fooled by
Andrew when there was plenty of time to pack
up and evacuate. First read the studies
that show that recreation rooms and shelters
are woefully inadequate to deal with the
numbers of people now living on the beach.
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Read those studies when you are sitting in
stopped traffic on the causeway and hoping
that the water will not be up over the road
before your turn.
You know that developers are going to
build as many units as they can to make as
much profit as they can regardless of the
consequences to the community. You as our
elected representatives are the only ones
who can protect our community by stopping
them. We are counting on you to do that.
The land that we are talking about is
extremely valuable to the developers only if
you rezone it and grant waiv e rs on building
restrictions. Please don•t do that. That
land is valuable to this community and we do
not want overcrowding. It will not be an
easy fight but it is the right thing to do.
And you have our full support. Thank you.
MR. SCHULMAN: Madam Mayor, before I
start my rebuttal I'd like to ask Mr. Miller
a few questions.
Mr. Miller, you are the planner for the
Village?
MR. MILLER: Yes, I am.
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MR. SCHULMAN: And your report was the
one referred to by Mr. Shubin?
MR. MILLER: Yes.
MR. SCHULMAN: Have you examined the
proposed rezoning application in light of
the recreation and open space provisions of
the present Master Plan for the Village of
Bal Harbour?
MR. MILLER: Yes.
MR. SCHULMAN: Did you take into
consideration the loss of property, the
removal of this property from your
recreational open space inventory?
MR. MILLER: I believe what my report
said that if the property was rezoned and
developed as a multi-family project that we
would go under our level of service.
MR. SCHULMAN: And under the existing
Master Plan, putting aside the Land
Development Regulations, with the removal of
this property would the City meet its lev el
of service in its Master Plan at present
under the existing Master Plan?
MR. MILLER: The beach area was always
inventoried as part of the community's open
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space and recreation system but it was not
counted as meeting part of the open space
criteria for the level of service.
MR. SCHULMAN: So today now that it's
being counted would the removal of this
property drop the level of se r vice under the
Master Plan?
MR. MILLER:
plan was a method.
I cannot tell --the comp
It does not
automatically count it towards the open
space.
MR. SCHULMAN: Putting aside the Land
Development Regulations is there a
sufficient inventory with the loss of this
property?
MR. MILLER: To meet the 2.75 acres we
have about 86 acres of what they consider
open space and recreation which includes the
beach, some o f the ocean, the bay.
MR. SCHULMAN: Would removal of this
property, if you let the people come onto
this property, would it meet the Master Plan
level of service as presently adopted?
MR. MILLER: I would say yes.
COUNCILMAN TANTLEFF: Can I ask you one
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question? Why did you say putting the Land
Development Regulations aside?
MR. SCHULMAN:
them aside.
Because I 'm about to put
I didn't bring with me a textbook and I
don't have a professor to quote to you. I'd
like to quote someone that I have a lot of
respect for. And his statement was very
simple, and the person involved was James
Madison.
His statement, and he wasn't on the
land use board and he didn't write eland use
text, but he wrote a document called the
Constitution of the United States where he
said no private property may be taken for
public purposes without due process of law
and the payment of full comp e nsation.
Now, I spent the last hour and a half
listening to everybody talk about the
Village's beautiful park and the Village's
beautiful open space. Have we been turned
upside down and have we failed to recognize
tha t there is one major impediment? There
is a property is, was and will be unless you
change it through a constitutionally
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permissible way privately owned. Today the
gates on the property could be closed.
Tomorrow the club could declare bankruptcy.
Tomorrow it could be 13 single-family
residences could adorn that site according
to your own planner's evidence and your own
PC zoning.
access.
So there would be no public
There is not nor has there ever been on
this site public access to the beaches. In
point of fact, members of the public were
specifically excluded from this site. And
do I have to tell you that?
Now, if you want this to be a public
park you can make it a · public park. There
is a way. Mr. Paul's petition remarkably
being submitted by people who actually do
live in high-rises said do everyth i ng you
can including condemnation. You have the
right under the constitution of the United
States and the laws of the state of Florida
to take anyone's property for a public
purpose and do somethiig for the first time
historically?
The historical imperative of this site.
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What has been the history of this site, that
the public has been excluded. That is the
history. If there is ever going to be any
public access to this site it's when you
rezone it because your Master Plan suggests
that when the property is developed as ocean
front you can request the developer and
encourage him to provide ~ublic access for
the first time historically to this site.
Only through rezoning the site or
condemning it. Those are the only two
choices. Otherwise the property could be
gated tomorrow and it fails to exist as a
public amenity.
The history of this site, the history
of Mr. Bartholomew which we look back on and
now we try to use as a justification to keep
this site private, inaccessible to the
public. The history of this site is that
this Village Council in 1989 changed that
history.
This Village Council, and not
necessarily those sitting and I won't point,
this Village Council in 1989 adopted a
Master Plan. Not Mr. Bartholomew's plan.
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It adopted a Master Plan that allowed this
site to be used for high-rise condominiums
and hotels. And that's been in place since
1989. So much for the history.
If you want to look at the history of
the site, look at the aerial photograph
which is the only evidence before you and
take a look at whether Mr. Bartholomew had
envisioned 13 high-rise condominium hotels
along that beach. The history is gone. The
history is dead. Zoning regulations are
determined not by the history but by what
exists today.
Now, let me deal with a couple of other
issues that were raised by respective
counsel who can in many ways make a silk
purse out of a sow •s ear . He's marvelous.
But l et me see if I can put it in some level
of perspective.
This level of inquiry is twofold.
First you determine whether or not an
applicant is consistent with the Master
Plan. First. If it's not I 'm not here, I'm
gone. I've saved you a lot of time. And
Mr. Shubin is totally correct in saying that
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this site under your Master Plan could be PC
or could be hotel or condo. That's not the
end of the inquiry, it's the beginning.
That gives you now the right to
determ i ne whether or not the z oning i s
correct on the site. And then with all due
respect to counsel he threw out very, very
brightly, ve r y quickly, and that is under
the controlling case, Schneider versus
Brevard County, not to get too techn i cal,
once I had shown compliance with the Mast e r
Plan, you have to come back and show that
denial of my right to zone it meets a
legitimate public purpose.
Now, that's very interesting. When
government acts normally it only has to act
for a public purpose. But how can you say
that? It didn't say just any public
purpose. It used a specific word, a
legitimate public purpose.
And if we assume that the Court meant
som e thing by that, now isn't it a legitimate
public purpose to take a private piece of
property that has historically barred the
public from access to the beach and keep it
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unde r the guise of beach access to the
public. It's ludicrous.
Counsel cited to you numerous statutes
and flipped them down. Well, he didn't flip
them down. Every statute on each access
that he read, every single one dealt with
public beach access. Not a private beach
that has excluded the public from its
creation. Every statute on beach access
dealt with getting state funds to condemn or
acquire through negotiation private property
for public beach access.
Nothing that you do here today in
denying this matter or in approving it will
necessarily bring about public access. You
only have the opportunity however by
rezoning the site to show that in the final
approval process that public access may in
fact be made available by the developer to
the public.
I wanted to deal with the issue of
recreational and open space. Your presently
adopted valid and in place Master Plan shows
that utilizing that Master Plan, the removal
of this site from your inventory, 50 percent
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of the site is considered your inventory,
you still meet the level of service.
So then the question is but there's no
land development regulation that implements
this. And in the exhibits we gave you the
last time we quoted a statue and we cited a
statute which showed you that you have a
legal obligation, we believe under chapter
163.3202, Florida Statutes, to one year
after having adopted your Mas ter Plan we
believe you have to adopt Land Development
Regulations and implement them.
But as I said the last time the
legislature realized that there would be a
hiatus between the time you adopted the
Master Plan and the time you implemented the
Land Development Regulations.
And while I generally respect Mr.
Shubin's opinion it is inconsistent with the
specific statutory language that dealt
specifically with the hiatus. And the
Statute said 163.3194, and I'm not going to
read all of it, it basically said when
you've adopted a Master Plan and it is
inconsistent with your L~nd Development
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Regulations, what happens?
And the underlying portion says quite
clearly, during the interim period when the
provisions of the most recently adopted
comprehensive plan or element or portion
thereof and the LDRs are inconsistent, the
provisions of the most recently adopted comp
plan or element or portion thereof shall
govern any action taken in regard to an
application or a development order.
The hiatus is covered and the hiatus is
covered by the Master Plan which indicates
that we are in compliance. We also
indicated that in all other areas, water,
sewer, all of the essential elements we
need, we need concurrency, we need the
City's hand.
And so we narrowed it down to a
fundamental question. This Village may
choose and may desire this property to be
public property and if so, please stand up
and do the right thing. Don't fool around
with a land owner's private property rights.
Even the original incorporator said even my
intention to maintain this as a private club
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ended in 1965. And if that's the desire
then condemn the property.
If not, please recognize that professor
James Madison did indicate as you would want
if you owned a piece of private property
that government should allow you to utilize
it in a reasonable way in accordance with
the rules of the ball game. And if the
government wants to change the rules of the
ball game then they need to step up to the
plate and do it the right way.
fair.
It's only
Now, if people are concerned about what
kind of building this will be, those are
legitimate concerns and can and should be
addressed and would be addressed once we get
past this stage. But this is no Trojan
Horse. We've been up front about this up to
and including doing a workshop before some
of the Commissioners were even elected and
telling you our intentions.
And I really resent that there's some
Trojan Horse here. We've been as up front
as I can possibly be. We've been in the
newspaper and everybody's known about it.
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We believe that we can't even start that
process until you follow the rules, your
Master Plan, the law and the Constitution in
saying that this piece of property
sandwiched between 13 other high-rise
condominiums is properly known as a
high-rise condominium.
And let's get on with it and let's see
what they're going to put on it. And let's
not go through the legal process to
basically indicate that this piece of
property is not a public park.
Thank you.
MAYOR SPIEGEL: We 1 re going to close
this public hearing at this time.
ASSISTANT MAYOR HIRSCHL: I'd like the
attorney to clarify this issue of what
appears to be a difference of opinion
regarding this issue.
MR. WEISS: It's complicated. Let me
see if I can help and put it in perspective.
The comprehensive plan was recently amended
to place a standard in the plan for the
Village of 2.75 acres of open recreation
space, park land, per 1,000 residents. And
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the way the State applies it is per 1,000
permitted residents.
And that is your standard in Bal
Harbour. It is adopted. That portion of
the amendment is final. The way that you
implement that standard is through your Land
Development Regulations. Your comprehensive
plan does not say what kinds of lands go
into making up that 2.75 acres. It merely
said that 2.75 acres must be established.
And so the way you implement it in real
life is through an ordinance. And your
ordinance is currently the same ordinance,
in fact I think it's an actual adoption of
the Dade County ordinance, which describes
what kinds of lands make up the 2.75 acres.
And I believe that what you do in the
Village is you take the area that is public
land and you count 100 percent of that
toward the 2.75 acre requirement and then
you take certain private lands and you're
allowed to count one half of the acreage of
private lands towards the 2.75 requirement.
So I think what the recommendation says
is that when you count up the private land
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that is included today in the inventory of
available private recreational space,
currently you have adequate park land
available for the existing development in
the community.
But when you take out 5.5 acres and if
this property is rezoned ocean front it
would be taken out of recreation use. When
you take that out, the level of service, the
amount of acreage necessary to support
development in the community falls below the
accepted standard .
And so it not only takes land out of
the inventory but you're adding increased
density in the community which creates a
need for additional so it's sort of a double
whammy there. You're taking out land at the
same time as you're increasing the
population.
But you really can't look at the
comprehensive plan by itself because it does
not describe how to get to the 2.75 acres.
I know that was a question that was made of
that but the two pieces have to work
together. They can't be read independently.
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They mak e no sense independently.
So the way you get to the 2.75 acres is
through implementing ordinance which tells
you what way and how and what percentage to
count. I think what your staff is saying is
wh e n you apply th e ordinance and you apply
the rules that apply today, that are in
effect today, there's a drop below the
acceptable level of service is what the
report is saying.
ASSISTANT MAYOR HIRSCHL: Thank you.
MAYOR SPIEGEL: Does anyone wish to
make a motion on the rezoning or on denying
the rezoning?
ASSISTANT MAYOR HIRSCHL: I make a
motion based only on the information
presented today and based on the information
presented I feel there is a definite need to
keep this land as it is. I think there is a
public space issue also.
COUNCILMAN TANTLEFF:. Second. And I
certainly agree with him to a point where I
would like to make a motion to deny the
ocean front zoning.
MS. GORSON: Second.
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MS. HORTON: Mayor Spiegel?
MAYOR SPIEGEL: Aye on this motion.
MS. HORTON: Assistant Mayor Hirsch!?
ASSISTANT MAYOR HIRSCHL: Aye.
MS. HORTON: Councilman Gerson?
COUNCILMAN GORSON: Aye.
MS. HORTON: Councilman Tantleff.
COUNC IL MAN TANT L EFF: Aye.
MS. HORTON:
absent.
Councilman Boggess is
* * * * *
END OF EXCERPT
* * * * *
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STATE OF FLORIDA
COUNTY OF BROWARD
CERTIFICATE
)
)
)
90
I, DONNA L. MITCHELL, a Notary Public in and
for the State of F lorida at Large,
DO HEREBY CERTIFY that the foregoing meeting
was taken before me at the time and pl a ce therein
designated; and the foregoing pages 2 through 89
inclusive are a true and correct excerpt of the
proceedings.
I FURTHER CERTIFY that I am not a relative or
employee o f any of the parties, nor relative or
employee of such attorney or counsel, or financially
int e r e sted in the foregoing action.
WITNESS MY HAND AND SEAL th i s 27th day of
December, 1997 in the City of Fort Lauderdale, County
of Broward, State of F l orida.
(.. -7-------------------------No tary Public
State of Flor i da at Large
~~,~ Donna L Mllohell f •r~-. )*} MY COMMISSION I 00531503 EXPIRES
~~·lt February 11. 2IXXl
'••f.'af.~~-• BONDEl) THRIJ TROY fAIN IHSUIWa. lNO.
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