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HomeMy Public PortalAbout1997-11-18 AttorneyClient FeuerringBAL HARBOUR VILLAGE ATTORNEY-CL I ENT SESSION Re; FEUERRING VS . VILLAGE OF BAL HARBOUR November 18, 1997 655 -96th Street Bal Harbour, Florida 6:00 o'clock p.m. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 MAYOR ESTELLE SPIEGEL ASSISTANT MAYOR ANDREW HIRSCHL COUNCILMAN JAMES E. BOGGESS COUNCILMAN PEG E. GORSON COUNCILMAN ANDREW R. HIRSCHL COUNCILMAN DANIELS. TANTLEFF ALFRED J. TREPPEDA, VILLAGE MANAGER DAVID WOLPIN, ESQ. Weiss, Serota & Helfman, P.A. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 2 1 THEREUPON, THE FOLLOWING PROCEEDINGS WERE HAD: 2 MR. WOLPIN: At this time, we are having 3 the attorney-client session in reference to 4 the litigation that's pending, Feuerring vs. 5 Village of Bal Harbour. 6 At this time, I would ask the Mayor to 7 read the statement that's required by Florida 8 law. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR SPIEGEL: Okay . Do you want the roll call first? MR. WOLPIN: Yes. That will be fine. MAYOR SPIEGEL: May we have the roll call, please? MS. HORTON: Mayor Spiegel? MAYOR SPIEGEL: Here. MS. HORTON: Assistant Mayor Hirsch? ASSISTANT MAYOR HIRSCHL: Here. MS. HORTON: Councilman Boggess? MR. BOGGESS: Here. MS. HORTON: Councilman Gorson: COUNCILMAN GORSON: Here. MS. HORTON: Councilman Tantleff? COUNCILMAN TANTLEFF: Here. MAYOR SPIEGEL: Now, we are about to have an attorney-client session in accordance with PERSONAL TOUCH REPORTING, INC. (305) 944-9884 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Florida Statute 286.011. The session is estimated to last one hour or less, and the following people will be in attendance at this meeting: Myself and the Village Council members, Andy Hirschl, James Boggess, Peg Gorson, and Daniel Tantleff; Village attorneys, Richard J. Weiss and David Wolpin --or it should be Richard or -- MR. WOLPIN: I am here. For the record, David Wolpin. Richard Weiss had to leave the meeting so he won't be here this evening. MAYOR SPIEGEL: We also have our Village Manager, Alfred J. Treppeda. We also should acknowledge that we have our Village Clerk. MR. WOLPIN: Right, the Village Clerk. Under a peculiarity of State law, the Village Clerk will be required to leave in a minute. Under this item four here -- MAYOR SPIEGEL: These proceedings will be recorded by a certified court reporter and at the conclusion of all litigation discussed, the transcript will be made part of the public PERSONAL TOUCH REPORTING, INC. (305) 944-9884 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 record. All those individuals who I have not named should leave the room at this time. (Thereupon, Ms. Horton left the room, after which the following proceedings were had:) MR. WOLPIN: Under the current Florida law that allows this closed session for attorney-client matters, the Legislature in their wisdom forgot t include the Village Clerk. So therefore Village Clerks, although they're responsible for all meetings and minutes, cannot stay at this meeting. MAYOR SPIEGEL: Why don't we have them correct that? MR. WOLPIN: Well, maybe that's something that could be worked on for the next legislative program. MAYOR SPIEGEL: I think it's a good idea because we need her to be here for the recording to make sure that it's all going. MR. WOLPIN: Right. We have the court reporter present MAYOR SPIEGEL: Right. Do we need to announce her name? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WOLPIN: It's not necessary. So at this time we are really in our -- right now at this second, the attorney-client session is commencing and I would like to briefly MAYOR SPIEGEL: I'll reopen the public meeting. MR. WOLPIN: No. That will open after the attorney-client meeting. 6 MAYOR SPIEGEL: Okay. MR. WOLPIN: So now we are in our closed attorney-client session. As you know, this is one of the very few matters that are allowed to be closed under Florida law. However, whatever is said will be in the court reporter's transcript and whenever this litigation is finely concluded, that transcript will become a public record. The purpose of this meeting as allowed by State law is to discuss litigation strategies that relate to litigation expenditures and settlement offerings received. We have received a settlement proposal from the attorney for the Feuerrings. I would like to distribute this to the Council. You PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 may have previously seen a copy of this proposal. I would like to go over it with you briefly and then get the Council discussion of the potentials on this matter. I'll just basically go through what this case is about. You will recall that several months ago after a public hearing, the Village Council denied a request for a sidewalk setback variance at a cooperative building. 7 That setback was requested to enable the new owner of the units at the property to combine a first floor unit and a second floor unit to exist as one unit by building an outside staircase on the outside of the building. You will recall that there was some testimony as to difficulties --allegedly difficulties of cutting through the slab to do it interior instead of on the exterior. There was a mention of various factors. However, the property owner has now tried to bring to the Village's attention in the form of a settlement proposal some additional information which they failed to present at PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 the time of the hearing. If in its discretion the Village Council decides that the new evidence should be received and a reconsideration of the matter be accomplished, then the proper vehicle would be to authorize us to ask the Court to remand the matter to you for a new hearing, and that's at your discretion. Just to go over briefly this proposed settlement. At the hearing, the transcript of the actual hearing of the Village Council shows that it was mentioned in passing --when it was suggested that an elevator could be built in the interior of these two units, it was mentioned in passing that Mrs. Feuerring suffers from claustrophobia. brief statement. It was a very What the Feuerrings have now attempted to do is to demonstrate by a medical letter that the claustrophobia problem that Mrs. Feuerring has is a long term matter over a period of decades. This is something they did not present to the Village Council at the time of the hearing on this item. Another matter. Whereas their engineer PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that appeared at the public hearing alluded to certain "difficulties" or problems in cutting through the slab and making an interior staircase, they have now attempted to present to the Village more information which provides a greater analysis rather than mere conclusions that were presented by the ;~:i-roperty owner at the public hearing. 9 So they're trying to show that they re~lly didn't explain their case very well earlier. They are trying to show that they really would have extreme difficulty in being able to, in their opinion, build this staircase interior. They provide engineering materials that show the existing slab conditions and what would be entailed in cutting through that slab and the difficulties that would be created. Finally, they also show in paragraph three the unusual circumstances of the case. And I say unusual not technically from a zoning standpoint, but from a personal standpoint. Apparently, what the Feuerrings did is that they purchased not only two units. They PERSONAL TOU CH REPOR T ING, I NC . (3 05) 9 44-9 884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 actually purchased a third unit in this building. This is a two story building owned in a cooperative form. 10 What they did, they found one unit on the bottom floor and they found that the unit immediately above it was occupied by some other people in an elderly and poor health condition. Well, they made a transaction with these other people and convinced them to move into another unit which the Feuerrings purchased and gave for the use of this other couple with no charge whatsoever except that the other couple would have to pay the maintenance fees that are required on the property. so in essence, they bought three units to accomplish their purpose of having two units to be combined. Now, naturally we are not commenting on the wisdom of that. Obviously, a prudent person would first come in and get your variances before you do a purchase. We don't know .why they didn't do that. They have not specifically stated why it is they purchased these three units without first PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 getting a variance, but being this was made in the form of an offer, we are required to present to you this additional information. Further, although not stated in this letter, the attorneys for the Feuerrings have also advised us that they would like to make a donation to the Village to cover costs related to the ADA, Americans with Disability Act, improvements to the Village Hall to a certain extent. That is something that they voluntarily offered. They know that it does not in any way al l ow them or grant them the right to a variance. Alternatively, the council may determine that if the council decides to in any way rehear this matter what should be done is that the Village be made whole of any attorney's fees that it has paid in this transaction for our own legal services. That is certainly within your discretion. So it would be within your discretion to determine that the matter should be considered, that the matter should be r e manded by the Circuit court for a new hearing, or PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 simply to decide that we should proceed --you have discussed, this received this offer, but if you don't feel it's appropriate to take any different action, then we'll just proceed on the present course of defending this litigation. As far as litigation strategy and expenses, it should be noted that one of the factors is that under the Bal· Harbour Village Code, one is not entitled to a variance merely because they want it. One is not entitled to a variance merely because they desire to put two units together. There are people throughout the community living perfectly fine lives in one unit. So as a technical legal matter, the proof falls far short of showing the practical difficulty that the Village Code requires and that practical difficulty standard means that a reasonable use of the property cannot be made in compliance with the existing ordinances. Obviously, a reasonable use can be made as many people in that same building are doing, making a reasonable use of one unit. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 But on the other side whereas that is the law that is applicable, one fact matter that the Village would have to overcome as part of the litigation strategy is that in this particular case, the staff had recommended in favor of the granting of the variance and the Village Council naturally in denying the variance --and that was not the Village Manager. It was the Building Official that had written up the report on that. Since then, procedures have changed a little bit where the criteria are set forth by the staff, but in a matter that might be disputable by the evidence or otherwise, they avoid making a recommendation which would interfere or theoretically interfere with the Council's decision making process. But that's something I need to point out as part of the understanding of this particular case. So I just brought this to you for your discussion. If you feel inclined to direct any course of action for a remand of this matter to your jurisdiction for a new hearing, that's certainly up to your discretion. If not, we'll just proceed ahead. PERSONAL TOUCH REPORTING, INC. {305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 ASSISTANT MAYOR HIRSCHL: Proceed ahead. That's my opinion. MR. WOLPIN: There's no necessity for the Council to actually issue any formal action at this time. I have brought this to your attention, and unless I hear anything to the contrary -- COUNCILMAN BOGGESS: You're getting ready to hear it. MR. WOLPIN: Okay. COUNCILMAN BOGGESS: Not long ago --we have not been very generous with granting variances, but in thinking back, Dr. and Mrs. Blatcher on Camden Court asked for a variance. They wanted to go into the sideyard setback and ASSISTANT MAYOR HIRSCHL: Front setback. COUNCILMAN BOGGESS: All right, whatever. we granted that because it was posing a bit of a hardship in order to enlarge their house. This particular building is the first building --excuse me --the last building within the security district on Balbay Drive. Next to it is the fence that delineates the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 security district and next to that is a building owned by Mr. Luby. It's a rental building. 15 The only people who could ever see this stairwell that they're proposing to construct would be someone going by in a boat or someone who was going through the gate of the security fence. I barely know the Feuerrings. I met Ralph Feuerring 20 some years ago. It's always, "How are you today?" and so forth. Mrs. Feuerring, I don't know except I made the mistake of speaking to her the other day. I don't know that what we shouldn't revisit this. I don't think this is really an unreasonable request. It's not a large projection from the building. I don't find it to be offensive. We have granted other variances for what I think are probably less valid reasons. So I would think that perhaps we should revisit this as a body. ASSISTANT MAYOR HIRSCHL: May I make a comment, if I may? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN BOGGESS: Sure. MAYOR SPIEGEL: Sure. 16 ASSISTANT MAYOR HIRSCHL: The Blatcher variance that you brought up was a front setback variance and a small portion was granted because the Architectural Review Board told the Blatchers, come to the Council. We endorse this particular variance in this particular instance only because of the irregular shaped lot and the hardship that was presented to make it esthetically pleasing. This Council in my the tenure has never granted a side setback variance for legitimate reasons, that being encroachment on what we have, very, very tight lots platted currently. If you recall in the packet when the Feuerrings applied for their variance, there was a letter from a Lori Swedroe, I believe, who is a resident of that building whose father is a noted architect in this community. COUNCILMAN BOGGESS: Robert Swedroe. ASSISTANT MAYOR HIRSCHL: And the comment in the letter was very clear and it said, we don't disapprove at all of this request and we hope that when we come, we can have a similar PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 side setback request honored, too. I don't know the Feuerrings, as you say you know them. I don't know them. I feel very badly as a councilman, as one of the five representatives of our city, greeting new residents this way by saying, I'm sorry. Welcome to the community, but no you can't do what you want to do. I have never heard of in my tenure on this Council of anyone coming to us after the purchase for the variance and stipulating they're buying based on that. It's the cart before the horse in this particular instance. To the contrary, I think that we would being very wrong in granting a second hearing of this nature. I think we very boldly and very astutely denied the variance request based on our City laws and based on the reasons of proximity; that is side setback issues. I think it is a precedent setting mistake and quite frankly, I think, ·Mr. Boggess, you were the gentleman who brought up maybe they could go through their outside terraces, which still hasn't been looked at. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 COUNCILMAN BOGGESS: an alternative. I was trying to find ASSISTANT MAYOR HIRSCHL: I agree with you. I agree with that idea and I agree with the internal staircase. I agree with an elevator, whatever it is may be. I know there are hardships in do i ng construction. I just built a home. I know what it's like, but that's not our problem and I think that if we bring it back to this Council, it will be a problem. COUNCILMAN BOGGESS: Well, all you say is true. The letter from Lori swedroe I don't think should have any bearing on this. ASSISTANT MAYOR HIRSCHL: But it does because this was a resident -- MAYOR SPIEGEL: It does. ASSISTANT MAYOR HIRSCHL: Part of the variance package, a variance application package, is residents in a certain proximity who have positive or negative comments. That is included in the record. That is part of the record, and that stands out in my mind as a very frightening comment from the standpoint PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 of side setback encroachment. MAYOR SPIEGEL: Setting a precedent. ASSISTANT MAYOR HIRSCHL: I think it is a very dangerous thing to do. COUNCILMAN BOGGESS: Lulu Swedroe owns a small two bedroom apartment on the third floor of this particular building. It's the middle apartment. It's three bedrooms on the MAYOR SPIEGEL: How does she get to the third floor? COUNCILMAN BOGGESS: By elevator. There is a stairway. MAYOR SPIEGEL: Yes. COUNCILMAN BOGGESS: I don't know why that was put in there. I just feel sorry for these people because I think they were mislead. ASSISTANT MAYOR HIRSCHL: I feel terrible for these people. COUNCILMAN BOGGESS: They were misled into thinking as long as they got the approval of the neighbors, then certainly the Council would not disapprove. ASSISTANT MAYOR HIRSCHL: Again -- MAYOR SPIEGEL: This is the first time I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have heard that they owned a third apartment. Now, are the two apartments adjacent to each other? They could have kept it and opened up the wall without any problem. COUNCILMAN BOGGESS: I don't know where they put the Scalas. All I know --this is the first I heard that they had bought an apartment MAYOR SPIEGEL: If they were adjacent, certainly they could have made use of that other apartment before they put the Scalas in there. It seems like they could have just joined the two together. COUNCILMAN BOGGESS: I don't know where the scalas are. I have no idea. 20 MR. WOLPIN: I think it's adjacent, but I don't know. MAYOR SPIEGEL: That would be a -- COUNCILMAN BOGGESS: It would have to be adjacent to one of the apartments, either on the second or the first floor. MAYOR SPIEGEL: It's got to be adjacent. COUNCILMAN TANTLEFF: It sounds from the letter they put them on the third floor. MAYOR SPIEGEL: First floor. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 COUNCILMAN TANTLEFF: It sounds like they bought the first and the third and they moved them from the second to the third. MAYOR SPIEGEL: So the people to get to the third floor do have an elevator. Can't they use that elevator to get to their second floor apartment? COUNCILMAN BOGGESS: She has claustrophobia. MAYOR SPIEGEL: How does she manage now to get to her second floor apartment? COUNCILMAN BOGGESS: I have no idea. MAYOR SPIEGEL: Well, there must be a staircase. COUNCILMAN BOGGESS: hardly at al l . I know these people MAYOR SPIEGEL: David, didn't you say there was -- MR. WOLPIN: Right. I don't believe that they live in the building now. MAYOR SPIEGEL: Oh, okay. MR. WOLPIN: I believe that they were planning to build in, contingent upon getting these approvals to combine the two units. MAYOR SPIEGEL: I think they would be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 very wise to try to relocate. COUNCILMAN TANTLEFF: Here it is. MAYOR SPIEGEL: Is it in here? COUNCILMAN BOGGESS: It's pretty documented that she does have claustrophobia. ASSISTANT MAYOR HIRSCHL: I understand your compassion, and we are all with compassion, but this MAYOR SPIEGEL: I'm concerned with the setting of precedents. ASSISTANT MAYOR HIRSCHL: This is dangerous for our community. This is exactly what over-development is all about, and we're very careful. COUNCILMAN BOGGESS: How many feet do they want to go into the side setback? MR. WOLPIN: I believe it's about seven feet. COUNCILMAN BOGGESS: Well, certainly I want to do nothing to harm the Village in any way. I haven't sat up here for 10 years for this because I love it. ASSISTANT MAYOR HIRSCHL: Why should you start now? MAYOR SPIEGEL: Not at this late date. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ASSISTANT MAYOR HIRSCHL: You've got the hang of it now. COUNCILMAN BOGGESS: I think your points 23 are good, and I am certainly not going to make an issue of this. I just wanted to bring up that we have granted variances at times and see if we wanted to revisit this. MR. WOLPIN: I guess to clarify it, the third apartment is on the third floor where the Scalas have moved to. MAYOR SPIEGEL: So they use an elevator to get there. Being in a wheelchair, I would assume they use an elevator. MR. TREPPEDA: David, are they paying the Scalas's expenses until they die or something? MR. WOLPIN: They provided a unit for them for free. The only thing that the Scalas pay for is their maintenance fees that are required. COUNCILMAN BOGGESS: They bought the apartment which replenished their capital and all they have to pay is the maintenance and the utilities. ASSISTANT MAYOR HIRSCHL: That's a good deal. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 MAYOR SPIEGEL: I have another question. The staircase.will be enclosed. MR. WOLPIN: That's right. The proposal is for an outside enclosed staircase, a spiral staircase running MAYOR SPIEGEL: Well, where does the claustrophobia come in if it's enclosed? If the staircase is enclosed, it's not any worse than the elevator. They'll spend more time on the staircase than they will on the elevator. MR. WOLPIN: Well, according to what we have been advised, Mrs. Feuerring does not have a problem going upstairs, but an elevator gives her a serious problem. There's medical documentation of that. COUNCILMAN BOGGESS: I know people who the thought of an elevator door closing on them MAYOR SPIEGEL: Yes. That he's true. COUNCILMAN BOGGESS: --is like a casket, and I feel sorry for them, but I think they should -- MAYOR SPIEGEL: They should have thought about that before they purchased the apartment -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCILMAN BOGGESS: That's right. MAYOR SPIEGEL: and not rely on hearsay evidence saying that oh, sure, they can do it. Whoever sold it to them probably said oh, no problem. You'll get it. COUNCILMAN BOGGESS: Somebody probably said that to them. MR. TREPPEDA: David, will we need a motion to direct you to continue MR. WOLPIN: No. No motion will be necessary. 25 Mayor, I think at this time you could announce that the attorney-client session is concluded and the matter is reopened. Perhaps the Manager can just reopen the doors just to signify that the Council has now returned to regular session. MAYOR SPIEGEL: The attorney-client session is now complete and we will resume our regular meeting. ASSISTANT MAYOR HIRSCHL: Thank you. COUNCILMAN BOGGESS: I move we adjourn. COUNCILMAN TANTLEFF: Second. (Thereupon, the session was concluded at 6:20 o'clock p.m.) PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 3 CERTIFICATE OF REPORTER 26 4 STATE OF FLORIDA) 5 ) ss. 6 COUNTY OF DADE) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, CAROLE BERNARD, 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 25, inclusive, constitute a true and correct transcription of my shorthand report of the hearing. WITNESS MY HAND AND SEAL in the City of Miami, Dade County, Florida, this 20th day of November, 1997. CAROLE BERNARD PERSONAL TOUCH REPORTING, INC. (305) 944-9884