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HomeMy Public PortalAbout1998-12-28 AttorneyClient AP Bal Harbour Club Inc and Ava Developments - CASE 98-026BAL HARBOUR VILLAGE ATTORNEY-CLIENT SESSION RE : CASE NUMBER 98 -026 AP BAL HARBOUR CLUB I NC . and AVA DEVELOPMENTS , INC ., vs. VILLAGE OF BAL HARBOUR . December 28, 1998 655 -96th Street Bal Harbou r, Florida 12 :00 o 'clock Noon PERSONAL TOUCH REPORTING, INC . (305) 944-9884 MAYOR ESTELLE SPIEGEL ASSISTANT -MAYOR ANDREW HIRSCHL COUNCI LMA N JAMES E . BOGGESS COUNCILMAN PEG E. GORSON COUNC I LMAN DANIELS . TANTLEFF ALFRED J. TREPPEDA, VILLAGE MANAGER WEISS , SEROTA & HELFMAN , P.A. By: RICHARD J . WEISS, ESQ. STEPHEN HE LFMAN ; ESQ. DANIEL WEISS~ ESQ. PERSONA L TOUCH REP ORT I NG, I NC. (305) 944-9884 2 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 THEREUPON, THE FOLLOWING PROCEEDINGS WERE HAD: MAYOR SPIEGEL: Good afternoon, everybody. It's 1 2:10 today, and this is an Executive Session. MR . RICHARD WEISS: Madam Mayor, we need to cal l the public meeting to order . MAYOR SPIEGEL: All right, and then Elissa will leave? MR. RICHARD WEISS: Yes. MAYOR SPIEGEL: We are going to call this public meeting to order . Do we need a roll call? MR. RICHARD WEISS: Yes. MS . WRIGHT: Mayor Spiegel? MAYOR SPIEGEL : Yes. MS. WRIGHT: Assistant Mayor Hirschl? ASSISTANT MAYOR HIRSCHL: Here . MS. WRIGHT: Councilman Boggess? COUNCILMAN BOGGESS: He~e. MS . WRIGHT: Councilman Gorson? COUNCILMAN GORSON: Here. MS . WRIGHT : Councilman Tantleff? COUNCILMAN TANTLEFF: Here. MR. RICHARD WEISS : At this time, we PERSONAL TOUCH REPORTING, INC. (305) 944-9884 3 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 are going to conduct an Executive Session on the litigation relating to the rezoning of the property on Collins Avenue. The session will last approximately one hour. The persons attending the session will be Mayor Spiegel, Assistant Mayor Hirschl , Councilman Boggess, Councilwoman Gorson, Councilman Tantleff, Richard Weiss , Dan Weiss , Stephen Helfman, and Al Treppeda, the Village Manager. Anybody ~hose name I have not listed , please leave the room . We are now in Executive Session and under the statute, the purpose of the session is to discuss settlement which is not on the table and litigation strategy as it relates to the cost of litigation. That's the statutory parameters that we're operating under. COUNCILMAN TANTLEFF : Can you bring us up to speed as to where we are? MR. RICHARD WEISS: To bring you up to speed as to where we are . As you know, the Third District issued an order denying our appeal . PERSONAL TOUCH R E PORTING, INC . (305) 944-9884 4 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 As a matter of just course, we filed a motion for --let me go back a step. We filed our brief . It was a combined effort of our law firm . And just so that you know, Dan Weiss was with the County Attorney 's Office for I don 't know how many years and did all t he ir appeals of almost all their zoning decisions, probably dozens of them. Steve worked on i t, I worked on it, Dan Paul worked on it, and the lawyers for the residents worked on it. It was a cooperative effort both in terms of coming up with the strategies, coming up with the legal arguments, and at the end, the brief was f iled. The Court unfortunately denied our appeal, and although we -- COUNCILMAN TANTLEFF : Did they deny the appeal, or did they just deny to hear the appeal? MR . RICHARD WEISS : Both . It 's the same thing. COUNCILMAN TANTLEFF : Is that k ind of unusual to deny the appeal without PERSONAL TOUCH REPOR T ING, INC. (305) 944-9884 5 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR . RICHARD WEISS: It's very quick . A lots of times they would even grant an oral argument at least or something , but they didn't even get that far. It 's not unheard of, but it just happened. I think it's safe to say that Dan Paul , the firm of Shubin & Bass representing the residents , and we were all sort of surprised that it happened that quickly without even an oral argument , but that's what happened . Although we do have a mo tion for rehearing pending , basica lly a mandate h as been iss ued , which we expect to be denied . They're a lmost always denied . It's just that we filed it because you do , but we expect it to be denied . We then the Court remanded this matter back to the Counci l with instruc t ions to proceed in accordance with the Court's order and in accordance with the law . The minimum that we have to do i s we need to have --in order to do rezoning , you need two public hearings under the PERSONAL TOUCH REPORT I NG, INC . (305) 944-9884 6 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 State law. So the minimum that we need to is to have the Clerk notice and schedule another --two public hearings . You adopt the zoning by ordinance, so it requires the two hearings and there's special advertising . And so we'll have to have two public hearings on this matter at which time the Council will be placed in the position again of making a decision. So that's sort of procedurally where we go. COUNCILMAN TANTLEFF : What if we come up with the same result again? MR . RICHARD WEISS: The scope of what's going to happen at these hearings. We received an extensive letter from Greenberg , Traurig representing AVA, and we this morning received a memorandum from Shubin & Bass representing the residents as to how they perceive --what should happen to this hearing and they're at oppose extremes of what should happen. Obviously , Cliff Schulman --they think there should be no testimony at PERSONAL TOUCH REPORTING, I NC . (305) 944-9884 7 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 these hearings . They should just be perfunctory. Shubin & Bass th inks it's a whole new ball game. We just got his memo this morning and we have some time before we schedule the public hearing . But obviously well in advance of the pub l ic hearing, we wil l advise you as to what we believe shou l d be the scope of what can go on at the public hea ring. So t hat sort of --what happe ns if the result is the same? COUNCILMAN TANTLEFF : Yes. MR. RICHARD WEISS: Depending upon what happens at the hearing and depending upon what we finally view as the scope of the hearing . If Cliff Schulman is right and the result is the same, I think the City could be --in other words, if we determine and we advise you that basically this is a perfunctory hearing and the City doesn't do it , I think you start to cross the line and the City starts to act in bad fa i th. PERSONAL TOUCH REPORT ING , I NC . (305) 944-9884 8 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 COUNCILMAN TANTLEFF: Well, why is it bad faith if I, as a councilman , don 't believe I 'm acting in bad faith? MR . RICHARD WEISS: Because you did that the first time . The Court came back and told you that based upon --I'm assuming Cliff Schulman is right. I'll give you the other example i n a second . Assuming C l iff Schu l man is right and that there's no more evidence to be placed on the record, based upon the same evidence , the Court has told you that that's not enough . And now you know that , so you could be acting in bad faith . On the other hand , if John Shub in is right and this is a brand new bal l game, then you could have easily come to the same result . You could come to the -- based upon evidence p l aced in the record . COUNCILMAN TANTLEFF : Who determines who's right? MR. RICHARD WEISS: Well , in terms of the hearing? COUNCILMAN TANTLE FF : Yes. PERSONAL TOUCH REPORTING , INC . (305) 944-9884 9 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 MR . RICHARD WEISS: Well, what we're going to do is: We are going to in terms of the hea ring --we're going to review what both of the lawyers have submitted, and we are going to give you our advice as to what we think is the appropriate way for the hearing to be presented because again, this is an important issue for the Village. We obviously want the Council to have as wide a discretion as they can have. By the same token, we don't want to start subjecting the Village to liab il ity. Steve and I were talking the other day about a terrib l e case in Coral Gables where there was just a similar sort of situation and the City ended up paying I don't know how much on that property, you know, 10, 15 mi ll ion dolla rs and delay damages and other things, and I don't want to get into that kind of scenario. MAYOR SPIEGEL: What about individual members of the Council? MR . RICHARD WEISS: I think as long as you're acting in good faith , there's no PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 0 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 personal liabil ity here. I think that if you're following our instructions, if you are, th e n you're fine . You're fine. MAYOR SPIEGEL: Let them sue you. MR. RICHARD WEISS: Let them sue us, right. COUNCILMAN TANTLEFF: Ho w did this happen so quickly? You talk about things being held up -- MR . RICHARD WEISS : I don't know . COUNCILMAN TANTLEFF: Do we have to hear the rezoning before 2005? MR. RICHARD WEISS: Yes, yes. Our motion for rehearing is pending. There's no telling whether it will be granted or denied . At that point within a that reasonable period of time , 30 days or somet h ing, there's advertising requirements that do take some time. We are going to have to schedule the first public hearing and at that point, then we are going to have potentially a second public hearing . So you're looking PERSONAL TOUCH REPORT ING, INC. (305) 944-9884 1 1 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 within -- MR. HELFMAN: Probably 60 days before you'd have your first public hearing. MR . RICHARD WEISS : Yes . MR . HELFMAN: The motion for rehearing could take days or months, literally . MAYOR SPIEGEL: Is this the motion we're talking about (indicating)? MR. HELFMAN : That's the motion that we filed. What happens is , we're asking the Court in it s entirety as opposed to the three Judges who decided not to hear our case and grant our appeal we're asking them to reexamine that . What happens is , that motion goes to all of the members of the Court and it's circulated amongst all the members of the Court . Any one Judge who heard it before or wasn't on the panel that heard it before could check off that they would like to hear this. Once that happens, then they PERSONAL TOUCH REPORTING, INC . (305) 944-9884 1 2 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 . 23 24 25 recirculate it --and correct me if I'm wrong --but as I understand it, they recirculate it so that everybody sees, well, there is one Judge who would like to hear it. Maybe we should hear it. So that takes some time for that motion to go through the Court and through the entire panel. I don't think it's going to be in a week, but it could be 30, 60 days before you would hear back as to whet her or not they wanted to granted yo u a rehearing. What I would think is that we wait 30 days and we see if the motion is granted. It probably won't be, but I think that's a reasonable time to wait. And then obviously, if we heard that we get a rehearing, great . We'll advise you immediately, and we'll be back in Court. If we don't either hear from them within 30 days or within 30 days from the time of hearing that it's denied, I think we should schedule the first hearing . I don't think that we should just wait --and jump in if you disagree. PERSONAL TOUCH REPORTING, INC. (305) 944 -9884 1 3 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 If we don't hear within a reasonable period of time from the Court either way, Dan, don't you think t h at we ought to probably forward under the mandate? COUNCILMAN TANTLEFF: Why would you move forward without hearing from the Court? What if we move forward, and the Court decides to grant a rehearing after we have moved forward? MR. HELFMAN: We could actually notice the hearing as opposed to conducting it . I 'm just concerned about an unreasonable de l ay of time COUNCILMAN TANTLEFF : Yes, but if it's the Court dela ying i t , it 's not our fault . MR. HELFMAN: Yes, but we have a mandate from the lower Court that says go forward and hold your hearing -- COUNCILMAN TANTLEFF: What is that MR. HE LFMAN : --and at the same time, we are asking the Appellate Court to reconsider our action, but that doesn't PERSONA L TOUCH REPOR T ING, INC . (305) 944-9884 1 4 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 21 25 stay the fact that we have a lower Court order that says go forward . So you/re balanc ing the interest here and trying not to run afoul of the mandate of the lower Court while you're waiting for some relief from t he Appel l ate Court. So that's the delicate balance here . It/snot like because you have the pending motion for rehea r ing, everything is on hold. Go ahead. MR. DANIEL WEISS: One appropriate way of making the balance t hat Steve has refer red to and that Councilman Tantleff asked about would be to hold the first hearing and you hear the evidence. You don't make a decision until the Court has ruled. I think it would be precipative to go ahead and have both hearings before the Court ruled because yo u made a request for the Court to reconsider and you/re entitled to have an answer to that before you make a final decision. But as Steve properly suggests , you don /t want to be PERSONAL TOUCH REPORTING, INC . (.305) 944-9884 1 5 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 2 4 25 delaying ad infinitum. So that may be a way of addressing both concerns and balancing those two concerns. MR . HELFMAN : My sense is tha t we wait 30 days for some decision and then we begin to forward with the noticing of the hearings, which wi l l keep the process going . Then some time before the hearing is conducted --the hea r ing t hat we have -- if we haven't heard from t he Court yet , we can make a judgment as to whether t h at public hearing should g o f orward , whe t her we should continue it for another 30 days or something like that . But I don't want t he Village to be perceived as de l aying the rezoning hearing. I just don 't. MR . RICHARD WEISS : But it's not really --it's a matter of perception in terms of damages . I mean , that's what we 're concerned about . MR . HELFMAN : Right . MR. RICHARD WEISS : It's not tha t we PERSONAL TOUCH REPORTING , INC. (305) 944-9884 1 6 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 are concerned about oh , the City/s looking bad or something like that . It /s just we don/t want to be in a situation where we end up "getting a bill " at the end of this th i ng for their interest payments or carry-on or whatever it is -- MAYOR SPIEGEL : Right. MR. RICHARD WEISS: have lost o r -- money they MAYOR SPIEGEL : We are not covered with i nsurance for that? MR -. RICHARD WEISS : No. MAYOR SPIEGEL : That would be the end of Bal Harbour Vil l age. MR . RICHARD WEISS : Well , we/re going to keep this thing under control and I t h ink there/s a way to do this and make sure we pursue eve r ything aggressively without incu r ring any liability . MAYOR SPIEGEL : I /m going to ask you again . Does their bankruptcy case which was dismissed have any effect on this? MR . RICHARD WEISS : Not at all , zero . PERSONAL TOUCH REPORTING, INC . (305) 944-9884 1 7 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 No . This is a land use decision . It wouldn't matter wh ether AVA applied for it, the Club applied for it, or if Mickey Mouse applied for it . It doesn't make any difference. The ownership of this property has nothing to do with this . ASSISTANT MAYOR HIRSCHL : Would you describe wha t --again , in layman's language what the mandate from the lower Court stated? MR. RICHARD WEISS : Okay . The mandate from the lower Court remanded this, sent this back to us, with directions to proceed in accordance with the Court's ruling and with State law . Is that correct? ASSISTANT MAYOR HIRSCHL : the Court's ruling? What was MR . RICHARD WEISS: The Court's ru li ng was that t he evidence that was presented by the neighbors was not sufficient to justify a denial of the rezoning . That was the Court's ruling . ASSIS TANT MAYOR HIRSCHL: Th at 's all PERSONA L TOUCH REPORTING, I NC . (305) 944-9884 1 8 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 they said? MR. HELFMAN: Yes . They said a number of things, but that's it . There 's a summary in the opinion that says that while they recognize that you may want to preserve the community , the evidence and the testimony of the neighbors was insufficient for the decision that you made . MR . RICHARD WEISS: To justify it. MR . HELFMAN : Because that's what this is all about, whether or not there was evidence in the record to support your decision. They 're saying the evidence that was there, while you may have a very laudable goal of wanting to do something, the evidence that was before you didn't support that decision. ASSISTANT MAYOR HIRSCHL : Okay . MR . RICHARD WEISS: If you remember , which is where we started with this t hing in the beginning of this whole process ASSISTANT MAYOR HIRSCHL : Right . MR. RICHARD WEISS: --which is PERSONAL TOUCH RE PO RTING, INC. (305) 944-9884 1 9 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 there's got to be enough evidence on the record, and the Court ruled that there wasn't . So they sa i d --okay, back to your question . There wasn't enough evidence on the· record to support the decision, so we're sending it back to you to do something t h at 's consistent with the evidence that was on the record and Florida law. C l iff Shulman's view of that is that means that you have to grant the that rezoning , period . more nothing -- No more testimony, ASSISTANT MAYOR HIRSCHL : Did the Court say we have to grant the zoning? MR . RICHARD WEISS : No . MR . HELFMAN : No . no MR. RICHARD WEISS : They did not say that. John Shubin's view of this is that it just says you have to hold another hearing and you can take evidence and everything , and we just got his information by fax this morning . PERSONAL TOUCH REPORTING , INC. (305) 944-9884 20 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 MR. HELFMAN: Yes. MR. RICHARD WEISS: So we really haven't had a chance to look at it , but the answer --we've talked about this a lot obviously, and the answer is someplace in between. We thi nk that the re wil l be certain circumstances under which you could make the same decision --limited --and there are certain circumstances under which you could not, but we'll fu lly advise you of that in advance of the hear i ng. MAYOR SPIEGEL: You said you also discussed this with Dan Paul. MR . RICHARD WEISS: Yes . Well, Dan Paul and John Shubin were both involved in actually writing our brief, strategizing, going over this --yes, as was John Shubin . ASSISTANT MAYOR HIRSCHL: So th is falls back on the record, is what you're saying. MR. RICHARD WEISS : No. That's Cliff Shulman's view . ASSIS TANT MAYOR HIRSCHL: And the PERSONAL TO UC H REPOR TING , INC . (305) 944-9884 21 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 2 3 24 25 Court's view. MR. R ICHARD WEISS : Oh , the Court's decision was based upo n the record, exactly. That is exactly correct , based upon the record. ASSISTANT MAYOR HIRSCHL: Do you th ink there was improper legal guidance that ended us up in this situation? MR. RICHARD WEISS : You mean from our point of view? ASSISTANT MAYOR HIRSCHL: specify you -- I didn't MR . RICHARD WEISS: No. I think the Village did everything i t could possibly and I mean, we did the hearing ASSISTANT MAYOR HIRSCHL : R igh t. MR. RICHARD WEISS: --and we provided a forum for the neighbors to and put on their case. come I was very clear at several hearings as to --I went way over --I went as far as I could to tell the neighbors what they· needed to do in terms of presenting the case. I did it publicly. PERSONAL TOUCH REPORTING, INC . (305) 944-9884 22 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 The neighbors h i red the number one fi r m who does more of th i s kind o f stuff than anybody in Florida to represent the m, and what they presented was insufficient . Whether that was done because those were the resources that were avai l able to the lawyers putting it on, whether that was done because that's a l l they had, I don't know . I don't really think it's wi th i n the purview of t h e Counci l to make a judgment as to wh ether t h e neighbors were properly represented, but that's where they were. I mean, I don't t h ink there was any questidn as to legal guidance in terms of everybody unders t ood the playing field that we were on. Everybody understood the rules o f the game. So the Village has done everyth i ng it possibly could have done to defend the decision of the Counc i l . In terms of future expendi t ures which we're required to discuss here, we're not talking about a t remendous amount of money j ust to go through the rehearing process, PERSO NA L TOUCH REPORTING, INC. (305) 944-9884 23 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 and then we're back to the hearing again ASSISTANT MAYOR HIRSCHL: So either way today, you're telling us the choices --we have to have another hearing. MR. RICHARD WEISS: Yes. We believe --Cliff Shulman's view --and we think he's wrong about this --is that all you have to do is just grant the rezoning. In Florida in order to rezone property, you have to do it in this city by ordinance. That takes two hearings. There's load of case law that says the Courts can't rezone property and won't. ASSISTANT MAYOR HIRSCHL: Right . MR. RICHARD WEISS: So we have to have a two hearing process. We've got to. If we're wrong on that, we're wrong, but I think we're correct. ASSISTANT MAYOR HIRSCHL: Again, not to repeat what you said, in that hearing process, the same thing again MR. RICHARD WEISS: No . We're going to go through --as to exactly what PERSONAL TOUCH REPORTING, INC . (305) 944-9884 24 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 happens in that hearing, we have Shulman's view, we have Shubin's view and we will advise you well in advance as to the scope of those hearings. We will advise both parties so they know the type of in fo rmation that we are going to I wi l l say this; If they put on exactly --if you hear exactly the same things that you heard before , then I don't be lieve you have any ability to make the same decision because t he Court has ru led based upon that stuff, that there wasn't enough on the record. ASSISTANT MAYOR HIRSCHL: Okay. MR. RICHARD WEISS: The scope o f you know, t here was one interesting case and we don't have to get into too much and we'll advise you, but there are circumstances where these types of rehearings can result in the same decis i on based upon other evidence, but we'll give you a full briefing on that before the hearing. ASSISTANT MAYOR HIRSCHL: Okay. PERSONA L TOUCH REPORTING, INC. (305) 944-9884 25 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. HELFMAN: I think that from the outset, the standard --I recall --I was just thinking back. I recall sitting with probably every one of you sort of going through the Snyder standard in advance of the hearing saying, this is what's got to be there to deny this because there was a pretty clear understanding that the request was consistent with the comprehensive plan that we have in place , that if you wanted to grant the rezoning , that certainly the plan would allow for that. The plan contemplated expressly that this property would be developed with a multi-fami l y high density classification. So that was the fundamental threshold i ssue that the applicant needed to overcome. And once they did that , then there had to be evidence in the record that would support not granting the rezoning . You do n 't make up that evidence . You're t he decision maker. You don 't create t h at evidence . You consider the PERSONAL TOUCH REPORTING, INC . (305) 944-9884 26 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 evidence that comes in from the community. If they put forward substantial competent evidence of why the property should not be rezoned, then you're decision of denying the rezoning can be upheld . What the Court has basically done is: They have gone through , examined the testimony at the hearing, examined the maps , examined the his tory. We put it in a light as best we could what that evidence was, together with Shubin and toge t her with Dan Paul . We all said, look at the evidence that was there. That was substantial competent evidence that supports this decision . The Court said that evidence that was presented to you all was not substantial competent evidence. It says: "We further find II after making certain findings "--that the Council's findings and judgment were not supported by competent substantial evidence." PERSONAL TOUCH REPORTING, INC. (305) 944-9884 27 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 So they're saying that the evidence that was prese nted to you all did not justify your decision. It was nothing about your decision t hat was flawed . There was nothing tha t you all did that was wrong , if you will. It's just bhat your decision was not supported by what evidence was put before you. So that in terms of legal guidance and everything, you were given the proper guidance in terms of what you had to do. You had to make a decision based upon that evidence. We argued that you did. The Court said that evidence wasn't adequate for the decision. We put that evidence in the best light possible before the Court, and we argued t hat this evidence was substantial. It was competent. When the neighbors stand up here and they point to this map and they tell you that this is not a good zoning, we argued that that was good enough. The Court said PERSONAL TOUCH REPORTING, INC. (305) 944-9884 28 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 it wasn't good enough. comes down to. That's what this COUNCILMAN TANTLEFF : Can I just ask you? I know Councilwoman Gorson and I were not on the City Council when this comprehensive plan wa s changed MR. BELFMAN : Right. COUNCILMAN TANTLEFF: --and I don't know who the Mayor was, but it changed. Since we now --before we schedule a rezoning, can we legally change the comprehens i ve p l an? MR . HELFMAN : I don't think so, not with respect to this parcel. I think you could, but there 's a tremendous risk of l iabi l ity if yo u identify one parcel and go back and try to change the plan, in effect to deny the rezoning . We would not recommend that you do that . COUNCILMAN TANTLEFF : How about if we just took a look at the general comprehensive plan, just -- PERSONAL TOUCH REPORT I NG, INC . (305) 944-9884 29 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. HELFMAN: You're entitled to do that at any time. COUNCILMAN TANTLEFF: decide to take a few months and look at the comprehensive plan . MR. HELFMAN: You could look at it, but if it resu lted in an reasonable delay in granting of the rezoning, you're again supposing yourself to potential liability. ASSISTANT MAYOR HIRSCHL: We discussed the fact that in 1988 was when the comprehensive plan was first altered -- MR . HELFMAN: Right. ASSISTANT MAYOR HIRSCHL: --as it pertains to this particular location. MR . HELFMAN : Right . ASSISTANT MAYOR HIRSCHL : I will also tell you I was not on the Council at that time . MR . HELFMAN : Right. ASSISTANT MAYOR HIRSCHL: Now, we have revisited that plan. Although we ha ve not gone back to that specific section of the plan, we have PERSONAL TOUCH REPORTING, INC. (305) 944-9884 30 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 2 4 25 gone back to the plan to modify it or update, as the State calls it. We discussed in Executive Session the fact that it is conceivable that the alteration of that plan occurred at a time where members of the Council might have had some sort of compromise in their abi l ity to make that change. Are we looking at that aspect? MR. HE LFMAN : We are not look at that aspect, for you al l to go back and change your ASSISTANT MAYOR HIRSCH L : suggesting changing the plan . I'm not MR. HELFMAN: I know that there has been some interest in that issue by Shubin & Bass and Dan Paul and their clients. I know that they are looking at that issue , that they a r e concerned about it, but we are not doing anything. I don't think it would be appropriate for the Council to do anything in that regard. MR. RICHARD WEISS : The Council would be in the position of challenging their PERSONAL TOUCH REPORTING, INC. (305) 944-9884 31 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 own comprehensive plan, saying the comprehensive plan that we have approved and reapproved is invalid. ASSISTANT MAYOR HIRSCHL : Right . MR. RICHARD WEISS : I think that those issues are around, and I know tha t people are thinking about them, but ASSISTANT MAYOR HIRSCHL: That's their business, is what you're saying. MR. RICHARD WE ISS : --it's really fo r somebody else to do that . It's there. MR. HELFMAN : They know what to do. I mean , They're bright capable people. If they feel that there's some flaw in the plan , they know wha t to do . They have spoken to me about it, and I told them that's up to you all. ASSISTANT MAYOR HIRSCHL : I see. Okay . So the next step would be to allow the Courts to give us a little time to see if they respond? MR . HELFMAN : Right . ASSISTANT MAYOR HIRSCHL: And you're suggesting 60 days from now approximately PERSONAL TOUCH REPORTING , INC . (305) 944-9884 32 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 i s when we'd have to schedule the first zoning hear i ng . MR. RICHARD WEISS: Right. MR. HELFMAN: Right. I wouldn't go much beyond t hat time frame. MR. RICHARD WEISS: And prior to that time and t hen there will be, that it is g r anted -- ASSISTANT MAYOR HIRSCHL: rehear i ng? assuming The MR. RICHARD WEISS: No. Assuming on the first hearing --it's an ordinance . Assuming you pass the ordinance on first reading, then there's a second reading. Of course, if you deny the ordinance on first reading, there's no rehearing. ASSISTANT MAYOR HIRSCHL: Righ t. MR. RICHARD WEISS: But prior to the first hearing, we'll give you a detailed written document which outlines what we t h ink the nature of that hearing should be and provide it to the other parties so everybody who comes walking in here will well in advance understand the ground rules so that they prepare an appropriate PERSONAL TOUCH REPORTING, INC . (305) 944-9884 33 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 case for themselves to be -- MR. HELFMAN : This will not be a rehash of what happened before . At a minimum, it would be merely new evidence and not going back through the whole process MR. RICHARD WEISS: At a maximum because Cliff Schulman says it should be nothing . MR. HELFMAN : Right. And if it 's anything, it will be limited to new testimony and new issues. MAYOR SPIEGEL : Will it be a public hearing? MR . HELFMAN : Yes, a public hearing just like -- MR. RICHARD WEISS : Yes . MAYOR SPIEGEL: And that would be just like before -- MR. HELFMAN : Right . MAYOR SPIEGEL: --with Schulman giving one version and Shubin giving another . MR. HELFMAN: Yes. I agree , but I suspect Shulman will not put on anything . PERSONAL TOUCH REPORTING, INC. (305) 944-9884 34 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. RICHARD WEISS: He's going to take the position that no testimony should be taken MR. HELFMAN: At all. COUNCILMAN TANTLEFF: That's what you'd expect. MAYOR SPIEGEL: But what about Shubin? MR. RICHARD WEISS: Shubin will take t he position that he --he'll want to put it on. We'll ma ke a decision and we'll advise you as to what we feel like the law tells us to do with respect to the nature of this hearing. COUNCILMAN TANTLEFF: In your past cases , wh at has the law taught you to do? MR. RICHARD WEISS: In this particular circumstance COUNCILMAN TANTLEFF : You've done a lot of these . What does 'the law tell you? MR. DANIEL WEISS : Wel l , the law tells you that you have to have a public hearing fo r ordinances. The public hearing means notice and an opportunity to PERSONAL TOUCH REPORTING, INC . (305) 944-9884 35 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 be heard . COUNCILMAN TANTLEFF : What about the evidence? MR. DANIEL WEISS: T h e evidence. When the Court tell you that based on this evidence , you can /t ma k e this decision, that means that only i f there is new evidence or different evidence could you make a different dec i sion. So what that tells you public hearing . Peop l e are is, you have a en t itled to be heard, and then you ma k e the appropriate decision based on that . MAYOR SPIEGEL : So Shubin and Paul could come before us and present new evidence or different -- MR . RICHARD WEISS: I /ma little bit sketchy on that particular point because we just received the evidence from Shubin this morning and MAYOR SPIEGEL: that evidence . So you already have MR. RICHARD WEISS: No, no , no . We just received his legal position as to what the scope of the hearing should be . PERSONA L TOUCH REPORTING, INC . (305) 944-9884 36 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 We are going to do our own research, and we will advise you before the hearing . MAYOR SPIEGEL: My next question is: They all come before us and we have a public hearing and we again deny it , then what happens? MR. RICHARD WEISS: Then we MAYOR SPIEGEL: Are subject to MR. RICHARD WEISS: Depending on -- again , depending upon what -- MAYOR SPIEGEL : Then we are subject to MR. RICHARD WEISS: upon what happens . No, depending If we advise you that you may hear new evidence on this , that you may hear new arguments and make a decision based upon what you have heard and you do that and they put on new evidence, then we go back through I assume they'll appeal it again. I would suspect that if that happens again and it's denied again, that the re will be some other suit for damages . That's my guess , but -- PE R SONAL TOUCH REPORTING, INC. (305) 944-9884 37 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MAYOR SPIEGEL: Damages against whom? COUNCILMAN TANTLEFF: Against the City. MR. RICHARD WEISS: Against the City. ASSISTANT MAYOR HIRSCHL: What would be the damages? MR. RICHARD WEISS: Delay damages, whatever type of de lay damages AVA would have. ASSISTANT MAYOR HIRSCHL: Yes, but I'm confused. If the Court is telling us that we have got to rehear it and it's reheard and some new evidence i s profoundly -- MR. RICHARD WEISS: Their lawsuit would be based on the fact that one, you shouldn't heard any new evidence and two, there was no new evidence presented and th is is all just being cooked up to delay this project . ASSISTANT MAYOR HIRSCHL : I see . MR . RICHARD WEISS: Their lawsuit would be based on the fac t that the advice that we gave you was wrong, that you shouldn't have had a new hearing, and PERSONAL TOUCH REPORT I NG, INC. (305) 944-9884 38 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 you're just delaying this thing to jerk them around. That's why we want to be careful and give you the correct advice and make sure that we feel comfortable . If we tell you that this can be a new hearin g and you can hear evidence and so forth , tha t means that we feel comfortable --we can't tell you you're not going to be sued, but that we feel comfortable that you're acting in good faith and t ha t the liability to the City is minima l . MR . HELFMAN: Andy, wha t the Court said was that you have further proceedings --not a hearing necessarily , but further probation. The Club and AVA are saying that those proceedings are basically perfunctory. They're ministerial and it's a rubber stamp. Just come in , stamp rezoning, and go home. Okay? We believe that there is to be more of a proceeding than that . It should be a public hearing, not simply convening the PERSONAL TOUCH REPORTING, INC . (305) 944-9884 39 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 group, rubbe r stamping it, and saying , "You're rezoned ." We think that what's proper --the further proceeding that the Court has directed should be a public hearing . Okay? So we'r e recommending and we are going to see that you have a noticed p u b li c hearing. Now, the next issue is, during that p r oceeding, you're going to hear some degree of argument or evidence. It's a public hear i ng . heard . Peop l e are entitled to be What you hear at that point and whether it's sufficient to s upp ort your decision, who knows? Because we have no idea what's going to be presented . I f it's t h e same testimony, the same argu ments, the same i ss u es all over aga in , o u r advice to you i s going to be to grant t h e rezon i ng. If it d i f f ers , i f the circumstan ces have changed substantially for so me reason, if the law h as changed between PERSONA L TOUCH REPORT I NG , INC. (305) 944 -9884 40 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 then and now, there may be a basis for the same decision as previously, which is to deny it. But we don 't k now that. We have no idea what that testimony is going to be today . We don't know what that that circumstance is going to be. So we'll a ll see what that testimony and ev i dence is -- MR. RICHARD WEISS : Maybe. MR. HELFMAN : --at that time. MR . R I CHARD WEISS: Maybe, S te ve . We may determi ne that Shulman 's right .and if that's the case, we'll tell you so. And we may determine that S h ubin is right. Our feeling is that there wi ll be some sort of hearing in between where you will be allowed to hear testimony, but we will tell you in advance exactly what the scope of that hearing is . MAYOR SPIEGEL : The hearing befo re the Court or the p u bl i c hearing? MR. R I CHARD WEISS : No, the publ ic hearing . COUNCILWOMAN GORSON: Shubin is the PERSONAL TOUCH REPOR TING , INC. (305) 944-9884 4 1 1 2 3 4 5 6 7 8 9 1 0 11 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 residents' attorney? MR . RICHARD WEISS : Shubin is the attorney for the residents . His firm specializes in these kind of matters . That's all they do substantially . COUNCILMAN BOGGESS: If that 's a l l they do and they could come up with no compelling reason to deny this, what are they going to pull out of the hat at another hearing? MR . RICHARD WEISS: We don't know , but we be l ieve that MAYOR SPIEGEL : Do you ha v e that in this information that you 're going to review? MR . HE L FMAN: No . MR. RICHARD WEISS : No . All they have is, they just have the --they 're talking about the parameters of the hearing . You know , it 's not our job to start going through their case wit h t hem in advance to see if there 's anything ultimately , that 's going to be your PERSONAL TOUCH REPORT IN G, INC. (305) 944-9884 42 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 decision. We are going to give you the parameters, a nd you're go i ng to have to make a decision as to whether you believe that within the parameters that we give you, that what they presented meets the test so you could make a negative decision again. MR . HELFMAN: Let me tell you what they believe it should be. letter : Here's their "In sum, it is this firm's position that a l tho ugh the Vil l age Council must reconsider wi thout unreasonable delay AVA's rezoning app l ication , in light of the legal pr inci ples set forth in the Circuit Court's opinion, the Council c l early possesses the discretion to hol d a new public hearing on the application and listen to new evidence on the application including expert testimony on that evidence which the Circuit Court felt was not competent when presented by the Village residents." So they have a perception of what should happen . It should be a publ i c PERSONAL TOUCH RE]2ORTING, INC. (305) 944-9884 43 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 hearing. There should be new evidence, and ASSISTANT MAYOR HIRSCHL: What a surprise. What a surprise that they can come up with a letter like that. It's shocking . MR . HELFMAN : That's their position . COUNCILMAN BOGGESS : Does this infer they have new evidence? MR . RICHARD WEISS: Let me tell you something . I really feel that -- MR . HELFMAN : I don't know . MR . RICHARD WEISS : --any discussion of the evidence is premature at this point . I don't want to start guessing as to what he has or he doesn't have, and MR. HELFMAN : We don't know what he has , but that's his position. We are going to conduct a hearing. We are going to conduct it without an unreasonable delay. We talked about a 30 to 60-day time frame . At the time of that hear ing and in advance of that hearing, we'll tell you PERSONAL TOUCH REPORTING, INC . (305) 944-9884 44 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 what we believe is the type and scope of evidence that you should take and consider . MAYOR SPIEGEL: But the only liabil ity is against the Village. It can't be against Shubin and this group. Right? MR. HELFMAN : They don't make the decisions -- ASSISTANT MAYOR HIRSCHL: Shouldn't you MR. HELFMAN: so it's hard to sue somebody that doesn't make any decisions . MAYOR SPIEGEL : I t's our liability. MR. RICHARD WEISS : Just to put your minds at rest here. We don't think that anything that you have done thus far subjects the Village to any liability at all . You have acted in good faith. You made a decision based upon the record, and we want to make sure --there's a lot of times when Cities start to feel the pressures of this and that and they sometimes do things that end up in PERSONAL TOUCH REPORTING, INC. (305) 944-9884 45 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 liability and the residents are long gone or who k nows what happens to them and the Village is left with MAYOR SPIEGEL: Only the bad. MR. RICHARD WEISS: And we wanted to give you t he freedom to do what you feel like what you want to do is right, but by the same token give you the parameters so that we are not subjecting the Village to l iabili.ty. Or if there is liability, that you understand it so you can make a decision about it. That's all. MR . HELFMAN : And I don't believe -- I have read the letter from AVA's lawyers. I don't believe that based upon what's occu rred, that they think that this Council has any liability. They're not claiming thit somehow the action to date has caused them any liability . I think they recognize that you are entitled to make a decision , that you're entitled to have it rev i ewed by a Court. What they are saying is, from this PERSONAL TOUCH REPORTING, INC . (305) 944-9884 46 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 point forward, they don't think that there s houl d be any further delay . That's where I think they're measuring from. ASSISTANT MAYOR HIRSCHL: Is it is unusual for a municipality if a Court decision as we received --i s it unusual for a municipality to rehear a case based on what we're hearing from the Court? I mean, is this unusual legal ground that we are treading on, or is it normal -- MR . RICHARD WEISS: Normally what wou l d happen is that it would come back to the Council, and they would grant the rezoning. ASSISTANT MAYOR HIRSCHL: Why is that? MR . RICHARD WEISS: Because they do, because that's what's -- ASSISTANT MAYOR HIRSCHL : understand. I don't MR . RICHARD WEISS : When the County loses a zoning case, how do they handle it, Dan? PERSONAL TOUCH REPORTING, INC . (305) 944-9884 47 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 MR. DANIEL WEISS : The simplest thing to do is to simply grant the rezoning because that way, you know that what you're doing the second go around is consistent with the opinio n. That's one of the reasons why there is not an abundance of case law on exactly what the municipality --the zoning authority --is required to do after a reversal . MR. RICHARD WEISS: The only time these situation come up is where there's very , very strong feelings and people feel li ke taking a little bit more of an aggressive position than Cities feel like taking. But the no rmal conservative t h ing to do is, they can come and grant the rezoning . It was a good battle . We lost . And t hen grant the rezoning . MR . HELFMAN: We have read both sides' opinions. There are no cases on t h is. You can be assured between t hese two law firms, that they would give you the case that PERSONAL TOUCH REPORTING, INC . (305) 944-9884 48 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 2 1 22 23 24 25 says you've got to ho ld a hearing. MR. RICHARD WEISS : Right. MR . HELFMAN: It 's not out there. This is really a case of first impression . Neither of these law firms have been able to give us one single case to support their position directly. They are making analogies. They're saying --this is like a trial, and then the Appellate Court sends it back for a new trial. They are a l l making analogies here and stretching and looking for something because there are no cases that they have been able to find or that we are aware of that are precisely on point which talks about the scope of the hearing on remand and what you're allowed to do and not do. They are bo th posturing, but they really don't have anything. If they did, we would tell you right now what the cases are. They're not out t here . ASSISTANT MAYOR HIRSCHL: Okay. MR. RICHARD WEISS : And probably we'll come back to you and tell you what PERSONAL TOUCH REPOR T ING , INC . (305) 944-9884 49 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 the most conservative thing to do is and what we feel is sort of a reasonable thing to do is so that you can make a decision as to how you want to proceed. But we are going to come back with what we believe the reasonable thing for the Village to do , understanding your feelings on this . MAYOR SPIEGEL : So that's it . Is there anything else to come before us? MR. RICHARD WEISS: No. What we need to do is, we are going to conclude the Executive Session and we will -- MAYOR SPIEGEL : We are going to conclude the Executive Session . MR . RICHARD WEISS: We are going to conclude the Executive Session, and we are going to ask Danny to please open up the door for Elijah and see if anybody wants to come back. MAYOR SPIEGEL : The public meeting has now been closed , and we expect Elissa to come back. (Thereupon, the Executive Session was concluded at 1 2 :50 o'clock p .m .) PERSONA L TOUCH REPORT I NG, INC. (305) 944-9884 50 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 1 9 20 21 22 23 24 25 CERTIFICATE OF REPORTER STATE OF FLORIDA ) s s . COUNTY OF DADE I, CAROLE BERNARD BECKER, a Notary Public in and for the State of Florida, do hereby certify that I reported the foregoing meeting at the time and place hereinabove set forth; and that the foregoing pages numbered from 1 to 50, inclusive , constitute a true and correct transcription of my shorthand report of the meeting . WITNESS MY HAND AND SEAL in the City of Miami , Dade County, Florida , this 30th day of Dec e mb e r , 1 9 9 8 . CAROLE BERNARD BECKER PERSONAL TOUCH REPORTING, INC. (305) 944-9884 51