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.
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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
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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 .
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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
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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
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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
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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 .
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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
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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
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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 .
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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
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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.
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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,
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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
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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.
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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
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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."
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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
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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 --
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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
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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
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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
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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
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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 .
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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
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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 .
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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 --
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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
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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
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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 .)
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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
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