HomeMy Public PortalAbout2000-05-09 AttorneyClient Session CASE 99-27948CA11BAL HARBOUR VILLAGE
ATTORNEY-CLIENT SESSION
May 9, 2 000
655 -96th Street
Bal Harbour, Florida
4:10 o'clock p.m .
PERSONAL TOUCH REPORTING, INC . (305) 944 -9884
MAYOR ANDREW R. HIR SCHL
ASSISTANT MAYOR DANIELS. TANTLEF F
COUNCILMAN PE G E. GORSON
COUNCILMAN SEYMOUR "SY" ROTH
ALFRED J. TREPPEDA, VILLAGE MANAGER
STEPHEN JAY HELFMAN, ESQ.
Wei ss, Serota & Helfman, P.A.
Richard J. Weiss
S te phen Hel fman
Elissa Wright, Deputy Village Clerk
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THEREUPON, THE FOLLOWING PROCEEDINGS WERE HAD:
MAYOR HIRSCHL: Le t's call this public
meeting to order and a roll call, please?
MS. WRIGHT: Mayor Hirschl?
MAYOR HIRSCHL: Here.
MS . WRIGHT: Assistant Mayor Tantleff?
ASSISTANT MAYOR TANTLEFF: Here.
MS. WRIGHT: Councilman Gorson?
COUNCIL MAN GORSON: Here.
MS. WRIGHT: Councilman Roth?
COUNCILMAN ROTH: Here.
MS. WRIGHT: Councilman Boggess is absent.
MAYOR HIRSCHL: The ti me is now 4:10 p.m.
We're about to have an attorney-client session in
accordance with F lorida Statute 286.0 --
MR. RICHARD WEISS: If you notice in pencil
there wh e r e it says
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MAYOR HIRSCHL: Attorney's statement. Hi.
MR. RICHARD WEISS: We have noticed executive
sessions on both the Bal Harbour Club litigation
and the AVA litigation, but we're only going to
have it on the Bal Harbour Club litigat ion because
the issue s in the AVA litigation are basically the
same.
The AVA motions which sort of get you to the
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same place as the Bal Harbour Club motions are
sche duled for the same time and place as the Bal
Harbour Club motions, and we don 't need to go over
it t wice.
So just understand that basically the AVA
motions are the same as the Ba l Harbour Cl ub
motion, and that's all we're going to say about
the AVA case.
Andy? You'r e on.
MAYOR HIRSCHL: T he time i s now 4:1 1 and
we'r e about to have an a ttorney-client session in
accordance with Florida Statute 286.011 regarding
t he l i ti gation styled Bal Harbour Club, Inc.
versus Village of Bal Ha r bour, Case Number
99-27948 CA 11 .
Discuss i on will be co nfi ned to th i s case
only. The session is set to last one half hou r
and the following people wi l l be in a t tendance at
the meeting:
Myself, Vi l lage Council members, Mr. Roth,
Mrs. Gorson, Mr. Tant l eff. Mr. Boggess is absent.
The Vil lag e Attorney i s Weiss, Helfman, and
Daniel Weiss --that's Ri cha r d Weiss and Daniel
Weiss --Vi l lage Manager Alfred Treppeda.
These proc e e dings will be recorded by a
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certified co urt reporter.
At the conclusion of all litigation, the
transcript we make will be made part of the public
record.
All i ndividuals who I have no t named should
leave the room at this time, p lease .
(Thereupon, Elissa Wright left the room.)
MR. RICHARD WEISS: What we are able to
discuss in these executive sessions, again, is
e xp enses of litigation and settlement discussions.
In order to give you an opportunity to really
address the settlement discussions that we have
had, I'm going to ask Danny Weiss to please give
you an update on what's happened in the litigation
and then, Andy, maybe you want to present or Steve
can present it, whatever you want, what happened
at the meeting tha t you had.
Dan?
MR. DA NIEL WEISS: To bring you up to date on
this case, the Bal Harbour Club case, I wou l d like
to take you back to the time it was filed . I t was
f i led very recently.
1999.
I t wa s fil ed in December of
The reason tha t it was filed was the rezon i ng
denial wh ich also occurred during that same t i me,
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just a few days apart.
You will recall you had held a public hearing
at that t i me and determined to deny the rezoning
request on a second occasion.
Promptly, the Bal Harbour Club proceeded to
Court and they filed a Complaint in the General
Jurisdiction Division in two counts, which were
sort of dupl i cative of each other just asking for
two forms of relief.
They asked for the Court to issue an
injunction and to is sue a writ of mandamus
essential l y requir i ng you, the Mayor and Village
Council, to grant the rezoning .
We moved to dismiss this for a variety of
reasons, one of which is that we felt it was only
proper for such a decision to be considered not by
an individual Judge of the Court, but by a three
Judge panel.
Another defense that we raised was that it's
improper to seek a writ of mandamus with regard to
a d i scret i onary decision, protecting your right to
exercise your discretion in this kind of context
where you had an evidentiary hearing and you made
findings of fact.
Third, we ind i cated to th e Cou rt that it was
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improper to request an injunction or a writ of
mandamus where there is another adequate remedy at
law .
Essentially, we told the Court that the other
remedies available were simply a petition for
certiorari, which any party is entitled to take
after a rezoning decision whether it's a rezon i ng
denial or a rezoning grant.
There were a number of hearings held on these
i ssues and ultimately the Administrative Law Judge
ruled as we had contended that these decisions in
this case should be made only by a three Judge
panel.
You also recall that ve ry recently , j ust last
month, April 18th, you had scheduled a
Comprehensive Plan amendment hearing to consider a
down planning or a considera tion to plan the Beach
Club property as recreationa l .
Shortly before that hearing was scheduled to
be held, the Bal Harbour Club proceeded into a
Court with a separate motion which they styled a
verified emergency motion in which they requested
three forms of relief.
One is they wanted the Court to issue an
injunction to keep you from going forward with the
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public hearing.
Another is they wanted the Court to issue
immediately a mandamus to tell you what to do, to
say that you must rezone the property .
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Third, to hold you in contempt for not
following what they viewed as a Court mandate to
rezone in the underlying case, which you'll recal l
from 1997 and 1998, there was a manda te and a
decision of the Court issued Ju ly 31st, 1998 going
back to the initial proceeding.
So where are we with all this? On May 22nd,
a week from this corning Monday at 4:00 p.m., there
is now a hearing scheduled on these motio ns fi l ed
by the Club and they are to be heard, as we
requested , by a t hr ee Judge panel.
That three Judge panel consists of two of the
members of the original panel, Judges Gross and
Lando.
Since the third member of the panel is no
longer si t ting on the Bench because she's moved
away, the Court has a ppo inted J udge Scott
Silverman to compl e t e the panel.
During the course of hearings in which the
parties have maneuv ered to put themselves in the
best possible posi tion for the ultima te hearing, a
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request was made by the Bal Harbour Club to bring
before this three Judge panel a transcript of
proceedings that were had before Judge Gross on
Ap ril 17th, an d that was the day before your
scheduled April 18th comprehensive plan hearing.
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At that ti me, Judge Gross entertained the
same motion that I described to you which is to be
heard on May 22nd by a three Judge panel, and the
Club proceeded to explain to the Court why they
fe lt that the Court should immediately mandate you
to rezone the property based on their
fili ngs in this case.
We appeared in Court, bo th Joe Serota and
myself, and we explained to the Court that first
o f all, the Court didn't have jurisdiction to
grant the relief requested because this could only
be done by a three Judge panel and in any event,
the Court did not have authority to enjoin a
legislative act; that is your duly noticed
consideration of a Comprehensive Plan amendment.
Judge Gross at that hearing disagreed with us
and he made oral rulings granting all the forms of
relief that the Club requested, inc l ud i ng an order
to s ho w cause why you, the Council and Mayo r ,
should not be held in contempt for failing to
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follow the mandate of t he Court in the first
instance.
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Curiously, ri ght after this hearing when all
the attorneys went back to their offices, we found
that on the preceding Thursday unbeknownst to any
of us, two orders had been en tered by Judge
Friedman, t he Administrative Law Judge, with
regard to proceedings, and one of the orders that
he entered spec ifi cally said that a three J udge
panel should hear these matters.
So Judge Gross then ordered us to reconvene
that same afternoon, Monday, April 17th at 3:00
p.m. to address these issues.
At that time, the Judge conceded that he
didn't have the right. He didn't have the
authority to entertain these matters based on
Judge Friedman's ruling. And again, essentially,
that was the argument that we had that made, that
Judge Gross d idn't have authority to address these
matters. So as a result, they're now going
forwa rd to May 22nd before the three Judge panel.
For this hearing, what the Club attempted to
do was to get a transcript of this first hearing
where the Judge very vigorousl y ruled against us
and stated al l the reasons why.
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Obviously, t he reason to do this would be to
i nf l uence the other two Judges on the panel who
were not present at Judge Gross's convened
hearing.
we strongly ob jected to that and Judge Gross
said it was not proper to br ing the transcript
before the three Judge panel. He ruled in our
favor on that issue and he sa i d that this May 22nd
hear i ng should be a "do-over." I n other words, we
start from sc r atch at that t i me.
The Club will have the opportunity to state
a t all t heir reasons based on the existing r ecord
why they think they're entitled to the relief that
they're requesting and we will also have the
opportunity to r es pond and indicate why this
relief should not be given.
But really whe re we are as a practical ma tter
is that the issue is joined, it's crystallized,
the papers have been filed in Court, and it
appears t hat the Court is --i f we can make any
inference f rom Judge Gross's oral rul i ngs which
were later rescinde d in the afternoon, the
indication is that the Court is anxious to ru l e on
the merits o f what i s before it.
We're not going to get into any detail a bout
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the AVA case, but as was said in the public
meeting, as Richard told you, the AVA case is also
set for the same time for hearing and they have
already been granted a motion to expedite their
proceeding.
So what we expect is that very shortly after
that hearing, if indeed not immediately after the
hearing --which the Court would have the right to
do --the Court could meet shortly in chambers and
then come back and orally announce its ruling.
The Judges agreed upon that.
So we do expect that there will be a ruling
shortly after that time on the merits of the
question of the propriety of your second denial of
rezoning, which again occurred in December and was
adopted as Resolution Number 602 of the Bal
Harbour Vi l lage Council.
Do you have any questions?
ASSISTANT MAYOR TANTLEFF: Let me know if
this is appropriate, but I asked Richard if it's
appropriate to file a motion to have Judge Gross
excused given the fact that he is completely
tainted and biased going into what should be an
open-minded hearing given the fact that on that
Monday morning, the 17th of April, he spewed his
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opinion all over the place and already ruled
against us.
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MR. RICHARD WEISS: Understand, it is not an
evidentiary h ear ing before that panel. In other
words, there's not going to b e witnesses at tha t
panel. It's j ust an oral argument .
ASSISTANT MAYOR TANTLEFF : But he's already
made up h is mind.
MR . RICHARD WEISS: First of all, we
researched this carefully. We don't think there's
any way that with a straight face we could file a
motion to get the Judge recused.
MAYOR HIRSCHL: It sounds like we made a
mistake and we should not have challenged the Bal
Harbour Club for getting a transcript of that
hearing brought into t hat three Judge panel beau
se that shows clearly Judge Gross's pred is posed
opinion.
Had you not fought that and had it gone into
Court, then we had further ammunition that we now
no longer have to make the argument that Mr.
Tantleff is suggesting.
MR. RICHARD WEISS: Wel l, if we were to make
a case at some point that he's predisposed --
MAYOR HIRSCHL: Well, we know that. It's
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witnessed. We witnessed it .
MR. R I CHARD WEISS: The point is that i t i s
not un u sual --Judge Gross
MAYOR HI RSCHL: Judge Gr oss is upset beyond
b e l ie f .
MR. RICHARD WEISS: J udge Gross --
MAYOR HIRSCH L : Judge Gr oss is part of the
original panel --
MR . RICHARD WEISS: Right.
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MAYOR HIRSCHL: who wanted us to zone the
property. He hasn't changed his mi nd one iota.
MR. R I CHARD WEISS : Righ t.
MAYOR HIRSCHL : He's irate . He wants to p u t
us i n contempt --
MR. RICHARD WEISS: Right .
MAYOR HI RSCH L : He wants to s a nc t ion u s . He
wan t s to do what e v er h e can to nail Bal Ha rbou r
Vil lage.
MR. RICHARD WEISS: Right.
MAYOR HIRSCHL: I t was obv i ous a t the
h ea rin g .
MR. HEL FMAN: R i g ht .
Let me j ust sa y this. Wha t I wa nt e d to say
i s this. It is no t
MAYOR HI RSCH L : It d oes n't l oo k.
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MR. RIC HARD WE ISS: It i s not unu s ua l f or an
appel l a t e panel to be asked to clarify what t hey
meant.
What is happ e ning in th i s par t i c ular case
is --and it's not unusual for an appellate panel
to say, you stupid whatever. We t old you what
we want e d y o u to do. Now do it .
MAYOR HIRSCHL: Right.
MR. RICHARD WEISS: Because th e motion
clarificat i on is gene r ally f i led by th e los i ng
pa r ty. In other words, you think you can get an
edge. Maybe they d i dn't r e al ly mean what they
said.
Normally, what happens is, you get a ruling
back that says, we told you what to do. It was
clear in the order. Now do it.
Now, what you're arguing is by v irt ue o f the
fact that Judg e Gross --I me an, Judge Gross
obviously felt strongly about the original case.
MAYOR HIRSCHL: Right.
MR. RICHARD WEISS: And Judge Gross t hen
expressed those feelings in this other proceeding,
in the proceeding that shouldn't have happened.
MAYOR HIRSCH L : Okay.
MR. R I CHARD WEISS: Okay. Judge Gross i s
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entitled to --I mean, it's not like Judge Gross
has these feelings arising out of some other case.
That's a ground to have somebody recuse
themselves.
The feelings that Judge Gross has are a
result of h i m hear i ng this whole story in th e
appellate --I mean, he's got noth i ng against Bal
Harbour Village i tse lf . He's irate because h e
went through this wh ole appellate p roc eeding and
we d id n't do what they told us to do. Now, if
that was a grounds for
MAYOR HIRSCHL: I thought we did, Richard.
You, as our attorneys, t old us that they said, go
back and rehear it .
MR. R I CHARD WEISS: Well, we told you --
MAYOR HIRSCHL: We did. We --
MR. RICHARD WEISS: You did.
MAYOR HIRSCHL: We reheard it.
MR. RICHARD WEISS: Judge Gross is obviously
of the opinion that the Court's order said not
only go back and r ehear it, but go back, rehear
it, and grant it.
MAYOR HIRSCHL: Okay.
MR. RICHARD WEISS: So that's the issue --
that's the guts o f the issue before the panel on
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the 22nd , which is: Did t he Court mean to go back
and rehear it and do whatever you felt was the
appropriate thing to do; or did the Court say, go
back, rehear it , and rezone it?
ASSISTANT MAYOR TANTLEFF: ~et me ask you --
n o t to p l ay Monday morning quarterback, but didn 't
we ask you at the very beginning to file a motion
for clarification?
I had spoken with other law fi rms and we --
MR. RICHARD WEISS: It was one of the things
that we talked about.
I think the reason that we rejected it was
because I don't think we honest l y wanted the
answer.
ASSISTANT MAYOR TANTLEFF: But now when we
get the answer, it can be a worse answer.
MR. RICHARD WEISS: I t's going to be the same
answer we got before.
We decided not to do it because we felt we
had instructions. There was some informa t ion that
the Counc il --that had come to light --
MAYOR HIRSCHL: But as you say, this is not
evidentiary --
MR. RICHARD WEISS: It's not evidentiary.
It's just going to be the lawyers' arguments .
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MAYOR HIRSCHL: What can you argue at this
point?
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MR. RICHARD WEISS: What we're going to argue
at this point --
MAYOR HIRSCHL: What are you going to argue?
MR. RICHARD WEISS: The issue at this point
is: was the evidence presented at the --
MAYOR HIRSCHL: Second
MR. RICHARD WEISS: second hearing
sufficient to allow you to rule otherwise.
The first question is: Did you have any
discretion at al l? In other words --the first
question I said, which is: Was this to hold a
public hearing and just do what they said, or was
it to hold a real public hearing?
They've got to get over that hurdle first --
MAYOR HIRSCHL: Right.
MR. RICHARD WE I SS: Now, assuming that they
get ove r the hurdle that it was a real public
hearing and you had the ability to do a couple of
different things, the question is: By virtue of
the evidence that was present at the second public
hearing, was that enough for you deny the
rezoning?
That's what's going to be presented to the
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Court and it's based upon the record that Skip
Taylor made and
COUNCILMAN ROTH: Doug Rudolph.
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MR. RICHARD WEISS: and Doug Rudolph, the
testimony and so for th, and that's all that's
going to be cons i dered.
MAYOR HIRSCHL: Who is going to be arguing
that?
MR . RICH ARD WEISS: We really haven't decided
yet. We really haven't decided yet.
MAYOR HIRSCHL: It looks as i f --and I know,
Dan, you're trying to paint a picture as even ly as
possible.
It looks as if we're on the losing end of the
stick here. At this moment, it doesn't look too
promising.
MR. RICHARD WEISS: No, not at all, not at
all.
MR. HELFMAN: But, Andy, it never --at least
from our perspective, we had a pretty good feeling
the fir st time when the Court issued its opinion.
After we went to the Third District and we
lost there and we end up back with Judge Grass's
written opinion s igne d off by the two ot her
Judges, we amongst us lawyers had a pretty good
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understanding from our experience.
When you have got a denial of a rezoning and
the Court says you made the wrong decision, go
back, 99 percent of the time, what local
governments do is they go back and they rezone the
property.
You al l believed that in the i nterim, you
became aware of new ev i dence, if you will, that he
original Comprehensive Plan was prejud i ced through
all of this. So you decided that you would do
what maybe one percent of municipalities do and
not rezone the property, but actually hold a
hearing and deny it again for a different reason.
MR. R ICHARD WEISS: An d you asked --
MR. HELFMAN: And they obviously challenged
us.
AVA took it up one way, the Club took it up
another way. But at the end of the day at the end
of May, we're going to find out whether the
conflict of interest issue was sufficient and
adequate for you all to not grant the zoni ng.
MAYOR HIRSCH L : Judge Gross has already
commented on that.
MR. HELFMAN: Judge Gross has already told us
very clearly. He's one vo t e that's saying,
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listen . You guys knew what you were supposed to
do and I'm prepared to give you sanctions for not
doing it.
He thinks that your action is that egregious,
but fortunately fo r us, we were able to maneuver
ourselves out of his jurisdiction because of
confusing orders that we got when he got back to
the office, telephone calls, and we wi ggled out of
a ve ry difficult situation --
ASSISTANT MAYOR TANTLEFF: That was only
temporarily .
MAYOR HIR SCHL : R i ght .
MR. HELFMAN: and got us three or four
more weeks now and we have an opportunity now --
MR. RICHARD WEISS: Steve, can I just s t op
you --and if you don't like me saying this, I'm
sorry about it. Bu t don't forget the fact that we
have told you from the beginning th at --I mean,
we found a way for you to have another hearing.
I don't want you to think that we have a
great chance to win this case. We have always
told you that we d on't.
MAYOR HIRSCHL: Well, it's interesting to
me --stop me if I
MR. HEL FMAN: Right.
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MAYOR HIRSCHL : What's interesting to me is
that had we not had a Comprehensive Plan change,
Mr . Schulman could n ever have argued the rezoning
of that property in i tia lly to us.
MR . RICHARD WEISS: That 's correct .
MAYOR HIRSCHL: Okay. That is a fact.
MR. RICHARD WEISS: Correct .
MAYOR HIRSCHL: The Court is us i ng that fact
as the reason to do the zoning.
MR. RICHARD WEISS : Correct .
MAYOR HIRSCHL: Okay. We discovered that
that crucial document, that Comprehensive Plan,
was manipulated.
MR. RICHARD WEISS: Rig ht.
MAYOR HIRSCHL : It was manipulat ed . Whether
it was one person or 10 people, it was
manipulated.
MR. RICHARD WEISS: Right.
MAYOR HIRSCHL: The Court does n't seem to
care about that, when that really is the meat of
the coconut. That's the crux of this whole thing.
That allowed Schulman to allow the Club to get
rezoning .
MR. RICHARD WEISS: Well, we're going to see
because --
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MAYOR HIRSCHL: It doesn't make sense that
that issue has zero merit.
23
MR. RICHARD WE I SS: That issue has never been
heard by the Court.
MAYOR HIRSCHL: But the view that --
MR. RICHARD WEISS: No. Judge Gross
MAYOR HIRSCHL: It was one or two Council
members. You had five people voting. It doesn't
make a difference.
sa i d
So he's already seen that and
MR. R I CHARD WEISS: Two other Judges have the
ability to look at this issue and maybe they ----
maybe they will say
MAYOR HIRSCHL : You have better faith in the
legal system than I do.
MR. RICHARD WEISS: I don't have any faith it
at all. I think we're going to lose .
MAYOR HIRSCHL: In my mind, Mr. Gross has
called Mr. Lando and Mr. Silverman and they've
already made up their minds.
MR. RICHARD WEISS: And Lando is on the other
panel.
MR. HELFMAN: And you're absolutely right . I
think Lando wi ll do
MAYOR HIRSCHL: What Gross does.
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MR. RICHARD WEISS: The only chance --the
chance that we have here is that Scott Silverman
is a good Judge, a smart Judge, and Scott
Silverman could ask some questions that could
What they do is, they meet privately --
ASSISTANT MAYOR TANTL EFF: Can we be there?
MR. RICHARD WEISS: Yes.
ASSISTANT MAYOR TANTLEFF: Can we testify?
MR. RICHARD WEISS: No. There's no
testimony --
24
ASSISTANT MAYOR TANTLEFF: But as lawyers --
MR. RI CHARD WEISS: No. Do you want to argue
the case?
ASSISTANT MAYOR TANTLEFF: No, I don't. But
I'm just say ing that t h ey don't seem to understand
the
MR. RICHARD WEISS: I mean, we're going to
decide. But whoever is going to argue the case
for the Village is going to get crap beat out of
them.
MR. HELFMAN: T hey understand very well what
we're saying. I t's not that they don't get it.
They get it .
What they're saying is
MR. RICHARD WE I SS: They don't care about i t .
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MR. HELFMAN: --we heard your case and we
told you to rezone, and that's it. It's not a
question of going back and holding a whole other
hearing.
25
MR. RICHARD WEI SS : It's only one person out
of five.
Why? I don't know.
don't care about it .
I don't know why they
MAYOR HIRSCHL: Look, we are not sitting here
in judgment of you.
MR. HELFMAN: We understand.
MAYOR HIRSCHL: We knew we did not have a
good case going in.
MR. RICHARD WEISS: Right.
MAYOR HIRSCHL: We understand that .
MR. RICHARD WE I SS: What I don't want you to
do is --
Dan, I don't wan t to --you know, to some
extent, I'm being somewhat defens i ve about i t. We
have been able to extend this thi ng. You said,
why did we have the public hear ing and blah, blah,
b lah.
We found a way to you to have a public
hearing
MAYOR HIRSCHL: Right.
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MR. RICHARD WEISS: --and it was an
aggressive --
MR. HELFMAN : Very aggressive.
MR . RICHARD WEISS: a very aggressive
authorization on our part.
26
In other words, I would say t hat if you spoke
to a lot of City Attorneys, they would ~ay, just
rezone the damn property. That's what the Courts
told you to do.
So we found a way for at least you to get
this evidence on the record.
MAYOR HIRSCHL: If the Court mandates us to
rezone --
MR: HELFMAN: Right.
MAYOR HIRSCHL: can we then go to the
public for a referendum on this, or are we
completely shut out?
MR. RICHARD WEISS: We can appeal.
MAYOR HIRSCHL: We cou ld appeal the
COUNCILMAN ROTH: Can we appeal to the
Supreme Court?
MR. RICHARD WEISS: No. We appeal to the
Third District Court.
MAYOR HIRSCHL: The panel's new decision.
MR. RICHARD WEISS: Right.
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MR. HELFMAN: Except that the Third Distri ct
has already said, we're not interested in h earing
your case, either.
MR. RICHARD WEISS: It's been up there once
already.
MAYOR HIRSCH L : So let's assume they say now,
we don't want to hear the appeal. Then what?
over .
MR . RICHARD WEISS: Honestly?
MAYOR HIRSCHL : Yes.
MR. RICHARD WEISS: I've got to t e ll you --
MAYOR HIRSCHL: Tell me .
MR. RICHARD WEISS: I think it should be
MAYOR HIRSCHL: We fold.
MR. RICHARD WEISS: I think that --and
actually, let's go into the settlement issues
ASSISTANT MAYOR TANT LEFF : We ll , what if we
buy t he property? Are we talking about like other
options?
MR . RICHARD WEISS: Not in this meeting .
ASSISTANT MAYOR TANTLEFF: Okay.
MR. RICHARD WE I SS: Not in this meeting .
ASSISTANT MAYOR TANTLEFF: Okay.
MR. RICHARD WEISS: Not in this meeting, but
I think that the point is --
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Now, before the Judge issues its ruling,
before t he Judge issues its rul ing --
ASSISTANT MAYOR TANTLEFF: What i s it, a
three Judge panel?
MR. RICHARD WEISS: Yes.
28
--if there's as opportunity for some sort of
sett l ement
See, t he truth is that the reason it's
di ffi cult to have a settlement in this case is
because just from a --is because of the fact --
well, why don't you talk about your settlement?
--because of t he fact we don't have much
leverage.
ASSISTANT MAYOR TANTLEFF: Can I just ask one
question be fore we go on to settlement?
MAYOR HIRSCHL: Sure.
ASSISTANT MAYOR TANTLEFF: Just to fin i sh the
legalese of it all.
What if the first question the Court says no,
we had no right to hold a public hearing?
MR. RICHARD WEISS: Right.
ASSISTANT MAYOR TANTLEFF: What happens then?
Then there is no
MR. RICHARD WEISS: They probably won't
delineate it that way, but if I was a Judge, I
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would say, we told you it was a mandate. There
was a public hearing only in name.
we told the m to rezone t he p ropert y. You
didn't rezone the property and t he testimony and
stuff --
29
They should have jus t opened and closed the
public hearing as a formality, which is what, as
Steve said, 99 percent of the jurisdictions would
have done.
MR. HELFMAN: And just so you've got the
proper framework.
What t he Court told us to do was go back and
conduct fur ther proceedings consistent with its
opinion. We went back. We held a further
proceeding.
We believe what we did is consistent with
their decision.
They te ll probably come back and say, what
you did is not consistent with our decision. T he
only thing you could have done to be consistent
with what we wrote was to rezon e that property.
So that's really the heart of the argument .
We're going to say, you told us to go back and
have another proceed ing , we did, and we acted
we believe --consistent wi th your decision.
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Okay?
Because the Comprehensive Plan was in your
decision. The importance of it was there. The
validity of it was there. We're going to argue as
best we can that what we did was consistent with
what their opinion was.
MR. RICHARD WEISS: And we're go ing to argue
that if a Comprehensive Plan was basically
tainted, then the Village Council should not be
stuck with it forever.
policy argument.
I mean, that's our public
MR. HELFMAN: Right.
MAYOR HIRSCHL: Sounds good to me.
MR. HELFMAN: And we'll see. Judge Gross
didn't seem to like it. Hopefully, the other two
Judges will like it when we get there.
ASSISTANT MAYOR TANTLEFF: Before we get to
settlement, what do you think happens on May 22nd
if they rule against us?
MR. HELFMAN: I think they're going to issue
an order that says, rezone the property within X
amount of time or e l se, we're going to find you in
contempt.
MR. RICHARD WE ISS : That's the best thing
that could happen.
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ASSISTANT MAYOR TANTLEFF: And th e worst
MR. HELF MAN: The worst is, rezone it.
31
You're in contempt and you pay a fine and you pay
their lawyer's fees.
COUNCILMAN GORSON: What happened to the
opinion that Mr. Miller said the State was behind
us, that we should live up to not having that
Comprehensive Plan. He said the State was behind
us.
MR. HELFMAN: Yes. Well, what he said was,
what we have been doing was somewhat separate and
distinc t from these suits is pursuing the down
planning of that property.
COUNCILMAN GORSON: Right.
MR. HE LFMAN: T he Court on a temporary basis
effectively said, don't down plan that property
and we followed and we asked you not to conduct
that hearing because you were under a Court order
at that moment, which was later vacated not to
have that proceeding.
But the down planning is what he said the
State will support. He's spoken to the State and
they're saying, if you down plan this property,
we'll support it. That's a good planning
decision.
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So tha t 's what Mr. Miller has been wor k i ng on
and we expect that --I don't know what you're
going to do, but we expect that you're probably
going to go back and explore this down planning
issue against.
Maybe after the Court's decision, it will
shed some light on how much flexibility are the
parameters that we have and the authority that we
have to down plan it.
MAYOR HIRSCHL: Assuming that the Court rules
against us next week week, i s it? Two weeks?
is to
MR. DANIEL WEISS: Yes.
MR. HELFMAN: Yes.
MAYOR HIRSCHL: our only remedy to fight
appeal to the Third DCA?
MR. HELFMAN: Yes.
MAYOR .HIRSCHL: That's the only --
MR. HELFMAN: Tha t's i t.
MAYOR HIRSCHL: --avenue to go?
MR. HELFMAN: That's it . You can't go
anywhere --I mean, maybe there's the right on
some cases --I don't know even know --to go from
the Circu i t Court to the Supreme Court.
even think so.
I don't
But noj that's it . That is the Court of
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appeal.
ASSISTANT MAYOR TANTLEFF: And what about
what the Mayor asked about, the re fer endum? Is
that for another discussion at another time?
MR. RICHARD WEISS: It doesn't matter.
33
MAYOR HIRSCHL: If the Th ird D.C.A. says no,
do we have any ability to appeal further?
MR. HELFMAN: No.
MAYOR HIR SCHL: That's the final authority?
MR. HELFMAN: That's it .
MR.-RICHARD WEISS: The Supreme Court does
do they have discretionary jurisd i ction, Dan,
for
MR. HELFMAN: Conflict?
MR. R I CHARD WEISS: --to take an issue of
great pub lic importa nce ?
MR. DANIEL WEISS: Not without an opinion.
MR. RICHARD WEISS: Not without an op ini on.
If the Third DCA
deal with the case.
there's two ways they can
First, they ca n rul e for us.
Second is, they can issue an opinion that
rules --they can rule for us and write an
opinion, which would be great.
They could rule against us and write an
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opinion, which would be also good because then we
migh t be able to appeal to the F l o rida Supreme
Court.
MR. DANIEL WEISS: No --
MR. RICHARD WEISS: Or they cou l d just deny
i t and say, we don't want to hear the case.
On that one, there's no way t o go to the
Supreme Court.
COUNCI LMAN GORSON: They can do that?
MR. RICHARD WE I SS: Yes. Well, t hat's what
t hey did last time. It 's called a per curiam.
Right?
MR. HEL FMAN: T hey basically l o oked at i t and
said, we're not going to take this case. The
lower Court d i d t he right thing. They don't even
pay a t tention to i t .
COUNCILMAN ROTH: May I ask som e thing?
Suppose there are five peop l e; AVA, Bal
Ha r bour Club, Sam Schwartz, Charlie Brown, o r
whateve r .
MR. RICHARD WE I SS: Cha rlie wa s never on the
Council here.
COUNC I LMAN ROTH: But all five have a right
t o sue the Village ?
MR. R I CHARD WE I SS: I think it 's a
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stronger --
COUNCILMAN RO T H: I mean, who are we dea l ing
with? We're dealing with --
MR. RICHARD WEISS: What do you mean by five
people?
COUNCILMAN ROTH: Five --I mean, we have two
people that are fighting the Village for zoning .
MR. RICHARD WEISS: I t doesn't matter how
many peop l e . It does not matter.
COUNCILMAN ROTH: Okay. So , in other
words --
MR. RICHARD WEISS: I thought you were sayi ng
if there were five people on the Council t hat were
tainted --
COUNC I LMAN ROTH: No. Two, we thought might
have been tainted.
MR. RICHARD WEISS: Wel l , there was really
only evidence on
MAYOR HIRSCHL: Just t he Mayor of the town.
That's all.
COUNCILMAN ROTH: The Mayor of the town and
the
MR. RICHARD WE ISS: And maybe one other.
COUNCI LMAN ROTH: --and maybe one-sixth or
one-eighth of --
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MAYOR HIRSCHL: Anyway, I think it's
offensive t hat we can't argue that po i nt.
MR. RICHARD WEISS: We are argu i ng it.
MAYOR HIRSCHL: Successfully .
MR. RICHARD WEISS: Oh, successfu l ly.
Well, again, the issue i s: Do we have a
forum to a r gue it.
MR. HELFMAN: Right. That's really the
i ssue.
36
MR. RICHARD WEISS: The issue is, I th i nk
they could well rule that that hearing was --that
we shouldn't even have had the hear i ng.
MAYOR HIRSCHL: Right.
Let's ta l k about our meeting, if we may,
unless you have
MR. HELFMAN: We didn't answer your question.
COUNC I LMAN ROTH: The question is: When you
say we may have liability to AVA and to the Bal
Harbour Club, how many people can own the
property?
MR. RICHARD WEISS: Well, depending on
COUNCILMAN ROTH: I mean, other than a
partnership.
MR . HELFMAN: There's nobody else.
MR . RICHARD WEISS: No .
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MR. HELFMAN: There's nobody else that you
have any exposure to.
37
COUNCILMAN ROTH: Yes, but between the two of
them, we really don't know who's the rightful
owner.
MR, HELFMAN: We know who the owner is .
COUNCILMAN ROTH: The guy who owns all the
shares, the Bal Har bour
MR. RICHARD WEISS: But in order to get
damages from us, they would have to file a law suit
and prove their damages.
MR. HELFMAN: Which would be very difficult.
MR. RICHARD WEISS: They would have to prove
their damages, but --
COUNCILMAN ROTH: Wel l , that's the point that
I was worried about.
MR. RICHARD WEISS: The longer this goes,
Steve, the eas i er it is. The Club --it's easier
for the Club t han it is for AVA.
COUNCILMAN ROTH: Because they own all the
shares. Righ t ? AVA has noth i ng.
MR. RICHARD WEISS: Incidentally, we have
been concerned about this all along, which was the
suit for damages.
MR. HELFMAN: Okay. That leads into the
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settlement discussions.
COUNCILMAN ROTH: That's right.
MR. HELFMAN: I received a call from Carter
McDowell represen t ing Joe Imbesi, the Club --
COUNCILMAN ROTH: Johnson, or whatever.
MR . HELFMAN: And they wanted to meet.
You all said that that was fine. You asked
the Mayor to act as your liaison, and we went to
the meeting.
What they said to us at the meeting --
MR. RICHARD WEISS: Andy, do you want to
present what happened at the meeting?
38
MR. HELFMAN: Let me just start a nd then I'll
let you get into i t.
MAYOR HIRSCHL: I 'll let the attorney do it.
MR. HELFMAN: The prem i se of the meeting was
that the Club up until very recently had taken a
back seat to AVA, that they had not taken any
aggressive actions in terms of lawsu i ts or
anything.
I think that that's true, giving them credit
for that. I think that that's true. They
basically let AVA be the bad guys a l l the way
through . Imbesi sort of sat back and watched.
They felt that when we went to down plan the
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property, that that was direct ly threatening to
them and they felt and wanted to share with us
that they were now in more of an all out mode of
defending themselves and bringing action against
us, in cluding seeking sanctions as the y did before
the Court.
Then they went on to say but they don't
really want to do that. We have forced them to do
that because we not only denied the zoning, but
that now we're taking affirmative steps to try to
down plan them i n an effort to take away even what
the Court may d i rect you to do. So they felt they
needed to take a more aggressive role.
Having said that, the n they said, there's no
point to us fight ing . Why are we fig ht i ng? Wh y
are we spending lawyers' fees? Can't we resolve
this?
So at that point, Andy said, "Well what do
you sugges t?"
They indicated that we should just rezone the
property.
Andy to l d them, "Fo rget it," and I'll let you
take th e story from there.
MAYOR HIRSCHL: We ll, I had a lovely tu na
sandwich. It was a beautiful luncheon during
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Passover --
ASSISTANT MAYOR TA NTLEF F: Was it a lunch or
a luncheon? At the club?
MAYOR HIRSCHL: No, here in the conference
room. It was a lun cheo n --it was lunch. We ate,
we left, we talked.
You know, here we are. We're at this meeting
and we're looking at Carter McDowell and we say,
"well, do you own this property? Do you not own
thi s proper t y?"
We don't, as a Council, know who owns the
property. We're not even clear about that.
COUNCILMAN ROTH: That's correct.
MAYOR HIRSCHL: He made a comment regarding,
"Well, we better get along with you because we'll
need variances. Once we get zoning, we need you.
We s houldn't fight with you. We need you."
Those were h i s wo r ds t o us and we didn't make
any we were v ery careful not to make a comment
at all at all --based on t ha t remark. But
they are sens iti ve, obviously, to the fact that
even if we lose --the City loses --and the
developers prevail, that th ey need the Council to
work with to put together some package that makes
economic sense for everybody concerned.
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So of course, we suggested that they get
along wi th AVA, work out their own differences,
come back to us, and then let's find one group to
talk to and work something out that we a l l can
live with.
COUNCILMAN ROTH: Exactly .
MAYOR HIRSCHL : And I'm not going to
capsulize it that qu i ckly, but what am I missing?
What
MR. HELFMAN: No. That's really the essence.
Now, they came here with some concept and I
know this because I had a sort of off the record
d i scuss i on with a developer who the Club --
I mbesi --is talking to about joining them if the
Club clearly secures the right to the property and
gets rid of AVA.
They have had d iscussions with a guy who's
doing the Ocean Club project on Key Biscay ne whose
nam e is John Hinson.
Hinson came to me once an d said, "List e n, if
the Club wins and AVA's out, I believe that I'm
going to be the deve lo per with I mb esi and
Johnson."
He said that he would know how to resolve
this and the r eason he would is because he had a
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similar problem on Key Biscayne --and we kn ow
about that because we were the lawyers.
42
Basica l ly what they did is , they dona te d two
acres of oceanfront property to the Village a nd in
exchange for that, the Village let them build
their project.
So he said to me , "If we could basically get
rid of AVA and I can get in there, we think that
there's a way that we can resolve this with the
Village."
Now, I don't know whether they're going to
give you two acres of oceanfront land --
COUNCILMAN ROTH: I think it's more. Is it
four acres?
MR. HELFMAN: --or what they're going to do.
There was some discussion --Andy, I think we
should tell them --about the potential of
in suring that the yacht club was never developed;
that if they had the ability to develop on the
ocean side, they would commit not to build on the
yacht cl ub or possibly build a few --we didn 1 t
talk about a number homes in the yacht club
area and get rid of the yacht club in it s entirety
and build homes there.
MAYOR HIRSCHL: We also mentioned the concept
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of access from people on the west side of Collins
Avenue --
COUNCILMAN ROTH: To get to the ocean.
MR . HELFMAN: To get to the ocean.
MAYOR HIRSCHL: No, an easement, an easement.
We also discussed the fact of maybe building
an oceanfront club
MR . HELFMAN: No. They said they would --
MAYOR HIRSCHL: for all the residents of
Bal Harbour to use on that property.
MR. HELFMAN: As part of the site.
MAYOR HIRSCHL: You're right.
And I did mention at Palm Beach at the Ritz
Carlton Hotel the old La Coquille Club, which was
the predecessor to the hotel structure; to settle
the deal, La Coquille was given a club within the
hotel to appease all of those residents that were
members of that entity.
MR. HELFMAN: Right.
MR. RICHARD WEISS: Here's a basic question
in terms of going forward with settlement
discussions.
I think you guys should have a l i ttle
discussion about it because Carter McDowell, I
bump into him all the time.
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Is there a settlement that would be
acceptable to th e Council which would
COUNCILMAN ROTH: How soon would those two
settle, AVA and Imbesi?
MR. RICHARD WEISS:
COUNCILMAN ROTH:
I don't know --
That could drag on
44
MR. HELFMAN: Well, the problem that t hey
have in coming forward --I'm sorry. The problem
that they have, they said they're prepared today
to make a deal with us.
MR. RICHARD WEISS: Let's assume --
MR. HELFMAN: Their problem is that if they
do, they can't bind up AVA.
If AVA for some small chance i s successful
and secures the rights to the Club properties,
they may not be bound by the settlement that we
entered into.
MR. RICHARD WEISS: Let's just assume for a
second that we could clear up the thing and we
know who owns the property and there's no sort of
potential rights out there.
Is there a settlement t here? Forget abo u t
the details. Is there some tree out there that we
could bu i ld ? Is there some settlement out there
wh i ch wi l l allow th e m, which would be acceptable
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to the Council because I have had some ind i vidual
discussions with you that caused me to question.
Is there a sett l ement where the best possible
structure would be built on the oceanfront with
whatever you want to think about it: A private
Club for the residents, access to the tennis
courts, access to the beach, rights to free
parking, whatever you want to say wi th, let's say,
very limited development on the west side.
MR. HELFMAN: Or not.
MR. RICHARD WEISS: Or not.
COUNCILMAN ROTH: What type of development
are you talking about? How many units? How tall?
How wide?
MR. RICHARD WEISS: Sy, let me make it easy.
None. Just for the moment.
MR. HELFMAN: On the west side.
COUNCILMAN ROTH: Oh, on the west side.
MR. RICHARD WEISS: and on the east side
basically a high-rise structure sim il ar to what
COUNCILMAN ROTH: One.
MR. RICHARD WEISS: One. Let's just say
one --similar to what you have been looking at
over there, you know, similar to what's being
built over there.
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Is that kind of a settlement anything that we
should pursue? Be ca use --and you can imagine all
the good things you want to throw in on the east
side that you can.
It's a beautiful building. It's got a
pr i vate club for Bal Harbour people. There is
free food. There's free drinks. What ever you
want to thr ow in, throw in because if I can't get
a yes on that answer, then I don't know where we
go in settlement.
COUNCILMAN ROTH: I think the whole site i s
four acres. It's 400 by 400.
MR. RICHARD WEISS: Right.
COUNCILMAN ROTH: Now, when he sa id they
donated two acres, there's no way
MAYOR HIRSCHL: That doesn't apply to u s.
That's an example of give and take.
ASSISTANT MAYOR TANTLEFF: Good will.
COUNCILMAN ROTH: We had that out in Davie.
MR. RICHARD WEISS: The question is: Is
there a settlement possible where virtually --
where most of the give is on the west side and on
the east side, we have the k i nd of things we
talked about. Is that something that's
acceptable?
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COUNCILMAN ROTH : Can we talk openly here?
MR. RICHARD WEISS: Yes.
MAYOR HIRSCHL: This is a business meeting.
COU NCILMAN ROTH: I think if our attorneys
47
feel strongly we're going to lose and the lesser
of the two evils is Imbesi because AVA, you know
they'll go for the max. Th ey 'll want to build on
the west side. They'll want to build
MAYOR HIRSCHL: Right.
COUNCILMAN ROTH: --whatever they can build
on the east side .
So I think we could make a settlement. If
our attorneys feel it's inevitable, then the
zoning that --they're allowed a certain zoning
under the Village Code, anyway.
MAYOR HIRSCHL: Right.
COUNCILMAN RO TH: They could go 17 floors and
then every floo r higher, they've got to go --
MR. RICHARD WEISS: Correct.
COUNCILMA N ROTH: What it is.
MR: HELFMAN: Right .
COUNCILMAN ROTH: If we could work out
something --and it's inevitable that we're going
to lose --work out something where we have the
least amount --nothing on the west side, a
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smaller structure, the least units, possibly
access to the people on the west side --
48
MAYOR HIRSCHL: I think it's a simple yes or
no.
Do you think it's a settlement that you can
come up with, is the question. Say yes.
COUNCILMAN ROTH: I think we should settle.
We're going to lose.
MAYOR HIRSCHL: You think yes, there's a way
you could settle it?
COUNCILMAN ROTH: If we could get away with
less than what we would --
MAYOR HIRSCHL: I want to make a comment.
MR. RICHARD WEISS: if we l ost than what
we could get under the law.
MAYOR HIRSCHL: Before the other two Council
members make their comments, I want to make one
comment which will come out in the wash
eventually.
That is: This Council should be very
proud --very proud --and specifically you guys .
You're newer on the Council. You should be very,
very proud --and I mean this because I have
thought about this a lot.
You promised your constituents that you would
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do e verything in your power to control
development, everything you could.
COUNCILMAN GORSON: That's right.
MAYOR HIRSCHL: There isn't one person
49
there isn't one person --who can fault this
Council for the steps we have taken so far lega lly
to
You can't win every battle and I'm --
COUNCILMAN ROTH: You've got to take a half a
loaf
MAYOR HIRSCHL: The spin I'm putting on this
is the fact that you are able to make a settlement
and save face at the same time. I want you both
to understand that. Understand that.
Politically, spiritua l ly, every way y ou can
think about it , you have shown exemplary judgment
and leadership in trying to do what you felt is
the right thing to do.
But sometimes the chips don't fall the way we
want them to fall and if we lose --
COUNCILMAN ROTH: Then they're going to get
the max.
MAYOR HIRSCHL: --we need to hav e a specter
of understanding that we need to b e able to
settle .
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Do you understand that concept? Wi thou t you
losing fac e of th e fact that you have done
everything you can. Do you understand that?
COUNCILMAN GORSON: Yes.
MAYOR HIRSCHL: And, Mr. Roth, you have --
COUNCILMAN ROTH: If you lose, the ou t come is
going to be not as good as yo u can g e t --
MAYOR HIRSCHL: If you lose and you have to
rezone, you do no t have to give any variance
whatsoever.
COUNCILMAN ROTH: That's true.
MAYOR HIRSCHL: However --
COUNCILMAN ROTH: But they may build
something that you stil l may not like under the
Code.
MAYOR HIRSCHL: They're not go i ng to build
they're going to want var i ances. They're going t o
want varianc es .
COUNCILMAN ROTH: They can build two 17 story
buildings.
MR. HELFMAN: They're go in g to want
variances.
MAYOR HI RS CHL: Don't k i d yourself.
Therefore , you a r e ab l e to, I believe, s t ill
in the spir i t of doing someth i ng tha t is th e best
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for this community put your pulse into what occurs
on that site, put your finger on it and dictate
policy what you can ultimately end up with.
So I'm not a quitter. None of us are
quitters up here --
COUNCILMAN ROTH: No. Absolutely.
MAYOR HIRSCHL: but we're realists.
MR. RICHARD WEISS: Just to add to this .
Remember that what I've been nervous about
COUNCILMAN ROTH : You've been nervous is
righ t, for six months.
MR. RICHARD WEISS: I'm very nervous about it
is, I'm worri ed about the civil rights lawsuit.
ASSISTANT MAYOR TANTLEFF: Right.
MR. RICHARD WEISS: And I've told you about
this and I'm worried. I 've told you about the
Gould case.
I mean , in terms of what Andy is saying, this
Council honestly --I've been here almost 20 years
and this Council went a hell of a lot further than
I would have liked you to go, honestly, because I
felt
MAYOR HIRSCHL: I would like to hear from
Mrs. Gorson when you're done.
Could you live with a settlement?
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COUNCILMAN GORSON: I wouldn't like it, but
I'll have to live with i t.
MAYOR HIRSCHL: Could you live with a
settlement?
ASSISTANT MAYOR TANTLEFF: Well, I want to
say for the record brie fly that I still be lieve
that when they put th is village together, that
that spine is supposed to be here. It's right
t here i n the picture (indicating).
52
MAYOR HIRSCHL: I don't think anybody that's
he re disagr ees wit h you.
ASSISTANT MAYOR T ANTLEFF: Yes, and if the
Council agrees we should try to settle and our
attorneys think we'll lose, then in good faith
I think with my back against the wall.
happy about it, but I would go for it .
I'm no t
But I do
think that spine was there for a reason
COUNCILMAN ROTH : Our back is against the
wall. Our spine is against the wall.
ASSISTANT MAYOR TANTLEFF: Well, let me ask
one qu estion .
Let's say what the Mayor was just speaking
about. We propose a settlement. Clear it up
because I don't think Councilman Roth or I
understand. Who owns the Club?
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MAYOR HIRSCHL: We don't know.
COUNCILMAN ROTH: Wel l , we're mak ing the
assumption --
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MR. HELFMAN: It wouldn't matter. The reason
it wouldn't mat ter is because any settlement that
we would do would be related to the land. No
matter who owned it, those are the restrictions on
the lands.
They could sell it 10 more times. At the end
of the day, the document would say, this is what
can go here, and that's the only way we would even
consider allowing you to settle something.
If for some reaso n that could change when
ownership chang ed , then you have no deal. You
know, who cares? We're not going to do that, and
that's the big problem here.
See, Imbesi can settle with them, but by
pr inci ple, he doesn't want to pay them a dime
MAYOR HIRSCHL: Correct.
MR. HELFMAN: --and that's wha t he shared
with us; that he and Charlie Johnson, who's got
all of the money
COUNCILMAN ROTH: Yes.
MR. HELF MAN: don't want to pay any money.
They feel that there's a settlement there --
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at least, the impr ess i on I got --where if they
wrote a check to AVA, they could get rid of them.
COUNCILMAN ROTH : Of course.
MR. HELFMAN: But they don't want to writ e a
check --not because they can't afford it, because
of pr i nciple.
But I think at the end of the day, if they
get smart and t hey look at it like businessmen,
they'll say hey, the City is willing to work with
us. We can write a check to get rid of these
guys. Why are we fighting?
MAYOR HIRSCHL: It was very evident that Mr.
McDowell representing Imbesi was extremely nervous
and conciliatory say i ng, please rezone it and
we've got to make you guys happy because we need
variances from you.
MR. HELFMAN: Yes. Th ey know they need them.
MAYOR HIRSCHL: We need you. We don't want
to upset you, which i s why he said he's held back
from suing us
MR. RICHARD WEISS: Let me ask a question,
which is: In t his regard, I think it's worthwhile
if Andy and Steve are going to go ahead for you to
at least give us some ideas as to the kinds of
things you would l ik e to see in a settlement.
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MAYOR HIRSCHL: Mr. Roth made it very clear.
I think as low --
COUNCILMA N ROTH: Leave the west side alone.
MAYOR HIRSCHL: Leave the west sid e --
COUNCILMAN ROTH: Right.
MAYOR HIRSCHL: On the east side, you
suggested a luxu ry high-rise low density
COUNCILMAN ROTH: A la towers where they had
114 units --
MAYOR HIRSCHL: Low density high-rise.
COUNCILMAN ROTH: --but very expensive,
exclusive --Bal Harbour Towers, 9999 Collins
Avenue.
MR. HELFMAN: One way to do th i s, Andy --
COUNCILMAN ROTH: They have 300 feet and they
have 114 units. This is 400 fee t .
MR. RICHARD WEISS: Is there any sort of --
I'm going to call it --gingerbread that you feel
is imp o rtant to be asking them f or on the east
side that wou ld make this
MAYOR HIRSCHL: Beach access.
MR. RICHARD WEISS: That's what I'm trying to
find out.
MAYOR HIRSCHL: Beach access is a must.
MR. HELFMAN: Is there anybody on the east
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side who does not have beach access?
COUNCILMAN ROTH: Not really. It would be
for the wes t side.
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MAYOR HIRSCHL: But your populations in
Districts Four and Five don't have beach access at
a l l . That half the city.
MR. HELFMAN: I'm saying, that's gingerbread
for the west side, beach access.
MAYOR HIRSCHL: Let's talk about the east
side now.
MR. HELFMAN: What benefits could the east
side enjoy that
COUNCILMAN ROTH: Setbacks.
MAYOR HIRSCHL: A luxury --
COUNCILMAN ROTH: Extremely luxury building s .
If they ha ve a club for the condominium owners
there --
MR. HELFMAN: Like 3,500 square feet or
something?
MAYOR HIRSCHL: Less.
COUNCILMAN ROTH: No. The Bal Harbour Towers
has --oh, not less than 3,500 square feet .
MR. RICHARD WEISS: Right.
COUNCILMAN ROTH: Yes, okay . Bal Harbour
Towers is --
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MR. RICHARD WEISS: And wh o would that luxury
club be open to?
MAYOR HIRSCHL:
MR . HELFMAN:
Residents of the Village --
Ri ght.
COUNCILMAN ROTH:
res i dents of Bal Harbour.
the condo owners and
MR . HELFMAN:
MAYOR HIRSCHL:
of Bal Harbour.
Al l residents.
All residents of the Village
MR. HELFMAN: That's right.
MAYOR HIRSCH L : We're representing the whole
Village .
MR. RICHARD WEISS: Right, for al l residents
of Bal Harbour.
MAYOR HIRSCH L : We're representing the whole
Village.
Not that you're telling us what you need, but
you have had experience with gingerbread gifts.
Give us a list of these gifts that have come
with developers to allow them to be built.
MR. HELFMAN: Well, there's financial
donations.
MAYOR HIRSCHL : Right .
COUNCILMAN ROTH: We don't want that.
MR. HELFMAN: Well, I don't know that you
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don't need them.
MAYOR HIRSCHL: Don't say that, Steve.
MR. HELFMAN: There are contributions o f
land. I don't think they could do that, but maybe
there's an acre of land here and they can still
build on three acres . I don't know.
MAYOR HIRSCHL: Maybe.
MR. HELFMAN: It's a possibility.
The west side --now, this is the west side
of
MAYOR HIRSCHL: We discussed that. No
development. We have already dis cussed that.
MR. HELFMAN: No, no, the west side being
deeded to the Village.
MAYOR HIRSCHL: Possibly.
MR. HELFMAN: No t just no development; that
the west side be deeded as a park to the
Village --
MAYOR HIRSCHL: I h ave a problem with that.
MR. RICHARD WEISS: He has a prob l em with
that.
MAYOR HIRSCHL: I would object to that
specific language.
MR. RICHARD WEISS: I'm just giving you
ideas. You could restrict that park for usage
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It gets complicated, but there's a way to
accomplish those kind of things .
You could have them contribute money to the
school.
MAYOR HIRSCH L : Why couldn't t hem also
contribute to our beach renourishment pro ject?
MR. HELFMAN: Absolutely.
MAYOR HIRSCHL: Big-time.
COUNCILMAN ROTH: Oh, you mean the --
MAYOR HIRSCHL: The walkway.
59
COUNCILMAN ROTH: That's not renourishment --
The government --
MAYOR HIRSCHL: No, the bi g project.
COUNCILMAN ROTH: The million and a half
dollar project.
MR. HELFMAN: Absolutely.
COUNCILMAN ROTH: A third of the cost of --
MR. RICHARD WEISS: Rich Sherinberg
(phonetic} on Key Biscayne when he got his project
approved --you cou l d have that
COUNCILMAN ROTH: You're on the right track.
Keep going .
MR. RICHARD WEISS: You could have them have
some co n tinu ing responsibility for beach
nourishment.
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MAYOR HIRSCHL: In addition to paying for
this project.
COUNCILMAN ROTH: The beachfront
nourishment --
MAYOR HIRSCHL: Please, please. Let him
speak .
60
MR. RICHARD WEISS: Whenever we do beach
renourishment, they're to responsible to pay some
percentage of it.
COUNCILMAN GORSON: A certain percentage.
MAYOR HIRSCHL: Stop.
Mr. Roth, the distinction of renourishment
and refurbishment are two different things.
COUNCILMAN ROTH: Right.
MAYOR HIRSCHL: We're talking about our
beachscape project --
COUNCILMAN ROTH: Right.
MAYOR HIRSCHL : that we're about to plop
down a million and a half for.
COUNCILMAN ROTH : The landscaping, the
walkway --
MR. RICHARD WEISS: Correct.
COUNCILMAN ROTH: --the dunes.
MAYOR HIRSCHL: Maybe that property maintains
the jogging path --
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COUNCILMAN ROTH: That's all we'r e talking
about.
Renourishment i s don e by the engineers.
MAYOR HI RSCH L : --those sort of projects.
ASSISTANT MAYOR TANTLEFF: I need to h e ad
ou t . Could I just hear your comments?
61
MAYOR HI RSCHL: My comments? I hav e n't made
my comments.
like
I'm really f ra nk ly against se tt ling. I wou l d
COUNCILMAN GORSON: So am I.
COUNCILMAN ROTH: No on e wants to sett le.
MAYOR HIRSCHL: Are you suggesting that this
potential settlement discussion occur before Dan's
Cour t hear i ng?
ASSISTANT MAYOR TANTLEFF; It has to.
COUNCILMAN ROTH: I think they should start.
Otherw i se --
MR. RICHARD WE ISS:
leverage.
I think y o u hav e more
I don't think we have much to --I think to
t h e extent we ha ve le v erag e , it's the variance
issu e which doesn't go away, win or lose .
MAYOR HIRSCH L : Well, a que stion then .
If we lose --which you guys think we will
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62
and I think we will, too if we l ose, don't we
then have the ability to go through this wish list
at that t ime or do you think we're better off
before?
MR. RICHARD WEISS: First of all --
MR. HELFMAN: We have less to negoti ate with
because if we lose
MAYOR HIRSCHL: Yes.
MR. HELFMAN:
~ezone that property.
then we're going to have to
At that poin t, why do they want to talk to us
at all except for those variances?
ASSISTANT MAYOR TANTLEFF: Well, that's
enough of a reason.
MAYOR HIRSCHL: If they we re going to build a
Plaza of Bal Harbour type of structure, they can,
but they're not going to be able to and make money
on it. There's no way. I t can't be done.
COUNCILMAN ROTH: Andy
MR. RICHARD WEISS: You don't th ink --I'm
just asking you to be a real estate developer for
a second.
You know, the ultimate threat here has always
been the box.
MAYOR HIRSCHL: Right .
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MR. RICHARD WEISS: That's been the ultimate
threat.
You don't think --you know, I know that
people were trying to do something with the Bal
Harbour --
MR. HELFMAN: The Surf Club?
MR. RICHARD WEISS: No, no, no, with the --
wi th Taplin's build ing.
COUNCILMAN ROTH: Harbor House.
MR. HELFMAN: Yes.
MR. RICHARD WEISS: Trying to make that into
condo units and stuff like that.
MR. HELFMAN: Another tower potentially.
MR. RICHARD WEISS: You don't think there's
enough opportunity here to put some medium sized
apar tmen ts there, lots of th em, 17 floors, one
after one after one, and sell them to --
MAYOR HIRSCHL: Of course, there's a
poss i bility.
COUNCILMAN ROTH: Absolutely. They could put
two 17 story it's 400 feet . I'd rather have
one building than two 17 story buildings.
MR. RICHARD WEISS: I do n't know. I'm not a
real estate develope r .
They cou l d have one
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COUNC IL MAN ROTH: T hey could have 300 uni tes
there .
MR. RICHARD WEISS: Three hundred units like
the Harbour House.
COUNCILMAN ROTH: No. They could have two 17
story buildings like the 101 or the Tiffany or the
Kenilworth.
MR. RICHARD WEISS: I'm trying to assess how
much leverage that we have in order to answer your
question .
COUNCILMAN GORSON: What is their restriction
at the moment?
MR. RICHARD WEISS : I'll tell you something
else.
I'd much rather --you know, once you have
you have been held in contempt by the Court, to
some extent the Court takes control of th ings .
It's a much cleaner way.
I also think it gives us some sense of
urgency to get this done, you know, to try to do
it in the next --what is it? A week or two?
MR. DANIEL WEISS: It's a week from Monday.
COUNCILMAN ROTH: I think we should do
something great.
MR. RICHARD WEISS: If we could do it
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quicker, I think it's better.
COUNCILMAN ROTH: They could use that as
arguments for variances --
MR. HELFMAN: One final thought. One final
thought.
65
One way to accomplish this is to get both of
those parties together and say, we don't care if
you beat your heads in. You guys can fight for
the next 10 years . If you both join in the
agreement, whoever the winner is, the winner is.
Here's the project that the Village would be
willing to accept and you guys beat yourself up
over it all day long. Have fun.
You could resolve the issue that way.
The other thing is that if we felt that
some fruitful discussion was happening, it
wouldn't be unusual to agree to a continuance or a
stay
COUNCILMAN ROTH: That's it.
MR. HELFMAN: of th i s hearing pend i ng
settlement discussions.
MR. RICHARD WEISS: Depending on how cranked
up the Judges are on it.
ASSISTANT MAYOR TANTLEFF: Oh, they're
cranked up.
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MR. HELFMAN: Yes but if the parties come
forward and say we would like our motions to be
stayed and the hearing to be stayed --
MR. RICHARD WEISS: You could also ask them
for reimbursement of your attorney's fees.
66
COUNCILMAN ROTH: As part of the settlement ,
okay .
ASSISTANT MAYOR TANTLEFF: Writ e it down.
MAYOR HIRSCHL: How about my advanced hair
loss for several years of aggravation?
That's not funny.
MR. R I CHARD WEISS: We wanted to do --
because we didn't want to pursue any sort of
settlement discussions along those basic patterns
unless we felt that a majority of t he Council,
that that's what you guys wanted us to do.
COUNCILMAN ROTH: I think the west side was
sort of an agreement that they 're going to be very
happy, no development there, leave it alone, the
ya cht club.
We have to placate a little bit the east
side.
MAYOR HIRSCH L : Well, here's how you placate
t he east side. You placate them by you suggesting
the
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COUNCILMAN ROTH: Bigger setbacks.
MAYOR HIRSCHL: --ultimate new luxury Bal
Harbour building with all the amenities accessible
to the residents of the Village, as we discussed,
with financial concessions that help the bottom
line of our tax basis, with all the amenities that
we need to keep that beachfront beautiful, the
jogging path which they will help underwrite the
cost of
MR. RICHARD WEISS : You could add
MAYOR HIRSCHL: Make them buy our own
cleaning machines, Al. We could buy our own
cleaners . Right now, we use Dade County sweepers.
Make them buy them.
I mean, it's lim i t l ess.
MR. RICHARD WEISS: We could add things on to
the tree until it falls . You add as much on to
the scale until --
MAYOR HIRSCHL: Did we get to all the members
of the Council?
COUNCILMAN ROTH: It's in their interest,
too, because they're so magnificent they're going
to sell those apartments at an extremely highly
price. You know, three, $400 a foot now is not
out of line.
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MR. HELFMAN: I'm not even sure that it's
going to even happen, but --
68
COUNCILMAN ROTH: I think if you could get a
stay, we should.
ASSISTANT MAYOR TANTLEFF: I have t o go, Mr.
Mayor.
MAYOR HIRSCHL: Let me just make this
statement.
There seems to be consensus, gentlemen, to --
MR. HELFMAN: To explore.
MAYOR HIRSCHL: t o explore settlement.
MR. RICHARD WEISS: Yes.
MR . HELFMAN: Yes.
MR . RICHARD WEISS: I have a l i st of 10
items.
MAYOR HIRSCHL: Are we finished?
MR. HELFMAN: And we have the authority to
add items to it, I hope.
COUNCILMAN ROTH: The b i ggest se t backs
possible between the buildings.
ASSISTANT MAYOR TANTLEFF: Will the Mayor be
in this with you again or how is thi s
MAYOR HIRSCHL: I'm representing you,
absolutely.
MR . HELFMAN: He'll be here.
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69
MAYOR HIRSCHL: I will now reopen t he public
meeting. The attorney -client sess i on has now been
terminated.
The members o f the general public are now
invi t ed t o retu r n.
Any furthe r proceedings or ma t ters?
any t hing e l se to come before us today?
(No response.)
MAYOR H I RSCHL: I s t here a mot i o n
COUNCILMAN ROTH: I make a mo ti on
MAYOR HI RSCHL: Second?
COUNCILMAN GORSON: Second.
MAYOR HIRSCHL: All in favor?
THE COUNCIL (IN UN I SON): Aye.
t o
t o
I s the r e
adjourn?
adjourn.
MAYOR HI RSCHL: The meeting is adjourned.
Thank you, gentlemen.
(Thereupon, t he deposition was adjourned at
5:05 o'clock p.m.}
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70
CERTIFICATE OF REPORTER
STATE OF FLORIDA)
ss.
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 executive session at the time and
place hereinabove set forth; and that the foregoing pages
numbered from 1 to 69, inclusive, constitute a t r ue and
correct transcription of my shorthand report of the
hearing.
WITNESS MY HAND AND SEAL in the Steve of Miam i ,
Dade County, Florida, this 11th day of May, 2000.
CAROLE BERNARD BECKER
PERSONAL TOUCH REPORTING, INC. (305) 944-9884