HomeMy Public PortalAbout2001-05-30 AttorneyClient Session CASE 98-026API
BAL HARBOUR VILLAGE
ATTORNEY-CLIENT SESSION
ORIGINAL
May 30, 2001
655 -96th Street
Bal Harbour, Florida
6:15 o'clock p.m .
PERSONAL TOUCH REPORTING, INC. (305) 944 -9884
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MAYOR HOWARD J. BERLIN
ASSISTANT MAYOR DANIELS. TANTLEFF
COUNCILMAN JAMES E. BOGGESS
COUNCILMAN PEG E . GORSON
ALFRED J. TREPPEDA, VI L LAGE MANAGER
VILLAGE ATTORNEYS:
WEISS SEROTA HELFMAN
PASTORIZA & GUEDES, P.A .
2665 South Bayshore Drive
Suite 420
Miami, F l orida 33133
By: JOSEPH H. SEROTA, ESQ.
and
NANCY E. STROUD, ESQ.
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THEREUPON , THE F OLLOW I NG PROCEEDINGS WERE HAD:
MAYOR BERLIN: Let's cal l this t o
Ord e r.
Rol l call, please?
VILLAGE CLERK HOR T ON: Mayor Berlin?
MAYOR BERLIN: Present .
VILLAGE CL E RK HORTON: Assistant
Mayor Tantleff?
ASSISTANT MAYOR TANTLEFF: Here.
VILLAGE CL ERK HORTON: Councilman
Boggess?
COUNCILMAN BOGGESS: Here.
VILLAGE CLERK HOR T ON: Councilman
Gorson?
COUNC I LMAN GORSON: He re .
VILLAGE CLERK HORTON: Counc i lman
Roth is absent .
MAYOR BERLIN: All right. So now we
do the optional pledge of allegiance?
It's always good.
(Pledge of al l eg i ance.)
MAYOR BERLIN: Thank you.
We are now going to have an
attorney-client session in accordance with
Florida Statute 286.011 relating to the
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case of Bal Harbour Club v. Bal Harbour
Village, Case Number 98-026 AP, C ircuit
Court of the 11th Judicial Circuit in and
for Dade County Florida.
The session is estim ated to las t one
hour and the following people will be in
attendance at this meeting:
Myself and the City Council member s :
Assis tant May or Tantleff, Councilman
Boggess, Councilman Gorson. Councilman
Roth is not present.
We are also going to have the City
Attorneys, Joe Serota and Na ncy Stroud,
and City Manager Al Treppeda.
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 th e
public record .
Now, all those individuals who I have
not named should leave the room at this
time.
(Thereupon, the Village Clerk,
Jeanette Horton, left the Council
chambers.)
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(Thereupon, there was an
off-the-record discussion.)
MAYOR BERLIN: Ready to go .
MR. SEROTA: Good afternoon. I'm
here with Nancy Stroud, as the Mayor just
stated .
If I could just take a moment before
we get started talking about execut i ve
session.
Everything that we say here is out of
the sunshine, at least temporarily. It
will be as part of the record and when
this litigation is over, completely over,
it becomes part of the public record. So
anything that we say here, although it is
now protected, will ultimately be part of
the public record.
We are here to talk to you about thi s
lawsuit, where it stands, basically to
bring you up to date, and also to talk to
you about some overtures we have received
from the Bal Harbour Club in terms of a
contemplated project, although there's
nothing spec i fic pending.
So the purpose of today's meeting is
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really to bring you up to date and tell
you what's happening and to the extent
that you want to give us some direction
about th ing s, this is your opportunity to
do that.
I do appreciate the fact that you got
together so qu ic kly.
The reason why we're here i nstead of
during a regular Council meeting is
because we have a hearing on Tues day and
that hearing on Tu esday cou ld have some
significant effects on this litigatio n, on
the Village. So that's why we wanted to
make sure that we were here before.
We also have received, as I said
earlier, an overture regarding what the
Club is th inki ng about doing and we also
wanted to br ing that to your attention at
this t i me.
So first of all, let me give you a
very brief background because I know, as
the Assis t ant Mayor sa i d, that you have
had many of these and I have seen in
looking at the transcripts of the
Executive Sessions, other than the Mayor,
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you have all been present during it. But
I do think that in order to understand
where we are --this is the one minute
summary of how we got here --but I think
it's important .
T he Village denied zoning to the
Club. The Club appealed and the Appellate
Court said that there was no basis to deny
the zoning and sent it back to the
Vi l lage.
The opinion says that you need to
reconsider it consistent with their
opinion, but the opinion doesn't
specifically say rezone.
In any case, at that time we
conducted another public hearing. At that
hearing, we heard additional evidence and
as a result of the other information that
was received, this Council denied the
rezoning again .
As a result, there were furth er
appeals that were taken both in the
Appellate Division of the Circuit Court
and in to the higher Appellate Court in the
Third District and ultimately, the Court
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entered a second order and this is called
Order Enforcing Mandate .
In that order, they said very
specifically, you need to rezone the
property, which you hav e done.
Now, on Tuesday, there is a hearing
on the Bal Harbour Club's motion for
attorney's fees and for sanctions.
The basis of th e ir motion for
attorney's fees is that we should have
rezoned the property the first time t hat
the Court told us to and not the second
time .
I have concern about our ability to
prevail in that hearing because of certa i n
things in the last ruling . The Court in
that ruling said in the Court's opinion,
t he original opinion i s clear and
unambiguous and that we should have
rezoned the property at that time.
So the Court has already found
themselves that what they d i d was clear
and unambiguous; no particu l ar surprise
that they f ound what they d i d is clear and
unambiguous, but it is relevant to this
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motion.
They then specifically reserved
jurisdiction to award attorney's fees and
costs on their own without being asked and
they said that no motion for rehearing
will be entertained by the Court. So I do
have a concern about this .
What are we looking at? We're
looking at somewhere between 50 and
$100,000 in fees, perhaps less than
$50,000. That's really our exposure.
Now, the other part of our exposure,
though, is if an order is entered by this
Court saying that we didn't have a basis
for failing to rezone the property, that
could open us up for a further lawsuit
that might be brought by the Bal Harbour
Club, which they have spoken to us about
that they would contemplate bringing.
Now, certainly because you're aware
that --or should be aware that they are
in litigation with AVA, which is the
entity that was hoping to purchase this
property, they have a very difficult
argument to claim that anything we did
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delayed this project from happening or
that they have any real damages, but at
the same time, there i s exposure.
Now, I have spoken to the Manager and
we have checked with your carrier and i t
does appear that you would be cov e red for
such exposure, but that's still more
li t igation, more aggravation ahead. So
that's really where we are.
Now, we have been approached by the
attorneys for Bal Harbour Club that
perhaps t his is a good time to stop
fighting and seeing if we can work
together because they recognize that
Tuesday 's hearing is a battle and not the
war.
By winning that battle, they may put
us in a situation where we may be less
will in g to exercise our discretion within
our ability to work w i th them.
On the other hand, if we prevail in
that matter on Tuesday, they may feel that
we would also be less willing to wo r k with
them because in a sense, we have no
exposure to them. It's kind of an
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interesting set of circumstances.
So what they were talking to us about
today is the possibility of putting off
that hearing indefinitely --whether it's
90 days or whatever --with the
possibil i ty of never pursuing the hearing,
the possibility meaning at some point,
they waive it.
I did ask them specifically to waive
it today. They didn't seem amenable to
doing it.
So what they did talk about was an
outline of the kind of project that they
would think about proposing here and the
purpose of that was to get perhaps our
ini tial feel i ngs about it and to see if
it's the kind of thing that we might be
willing to discuss.
They have specifically asked to meet
with th e Mayor, in a sense to talk to the
Mayor and talk to us about this project.
Certainly, the Mayor nor us h ave any
ability to bind the Village and certainly
where there is no applicat i on pending,
there is nothing specific that we're
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talking about.
So what a lot of this is is really
trying to start anew with all of us
working together.
I see no downside in extending the
hearing. If ther e is something that comes
in front of you which you don't like and
you're not comfortable with and it's
contrary to what they want, let them set
it down.
If on the other hand, t hey come in
front of you with something that you can
live with and work with and you feel it is
something that the citizens of Bal Harbour
can live with, then perhaps that's a good
time to say, you know what? Why don't you
waive thi.s? Let's finish everything we
have pending and go forward.
So what I would li ke is to have Nancy
talk to you a little bit about what they
said to us in a general non -binding way --
but I believe it was in good faith --so
that you have some idea what you might be
expecting in the futu re .
I was going to say near future, but
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we don't know. It could be within a
couple of months or because of this
litigation with AVA, it could literally be
a year or two years off.
Nancy.
MS. STROUD: Well, the Club gave us
some general parameters for the kind of
development they're thinking about and it
was clear that they are still thinking
about this and they're having some
architectural work done , but they did tell
us a few very important things, I think.
For one, starting with the beach side
property, they ind icated that they have
not decided between a condominium on the
property or something that is a
combination of a condominium and ho tel .
They said they have in mind for t hat
condo-hotel something that is being
developed in Key Biscayne at the Ritz
Carlton and they made a point to say that
it was that kind of quality that they were
looking at.
T hey also said that they want to
maintain what they cal l the club presence
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in the building, meaning I think that they
would actually have club facilities in the
beach side building.
This relates to something else t hat
they mentioned, which is they want to be
able to preserve a passageway to the beach
for the residents of the Village and that
that passageway as well as the Club part
of the building would be available, again,
to the Village residents . It would be
open to the Village residents.
We asked them whether t hey were
thinking about one or two buildings and it
was apparent that they hadn't decided on
that, but because they 're particularly
interested in this view corridor, you
know, having what would essentially be a
narrow build ing or buildings and then a
larger setback or yard to allow a view and
passageway to the beach, it sounded that
they would like to try and make it one
building; but again , they left open the
possibility of two to wers.
ASSISTANT MAYOR TANTLEFF: Did they
say how high?
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MS. STROUD: They did not. They did
not, although they stressed that they were
really thinking about a narrower building.
So they would need some height.
COUNCILMAN BOGGESS: Le t me just ask
a question h ere. We have said that a
smaller footprint would allow them to go
higher. How high would that be?
MS. STROUD: On the bay side, they
are thinking about one or a few singl e
fami l y homes in the area wh ere the
exis t ing club now stands.
MAYOR BERLIN: Could you repeat that?
I'm sorry . I missed it.
MS. STRO UD : One or a few single
family homes and they were
COUNCILMAN BOGGESS: Where the yacht
club is.
MS. STROUD : Yes.
ASSISTAN T MAYO R T AN TLEFF : Filling in
the yacht basin or just on the property
that's there?
MS. STROUD: No. They want to keep
the slips in the yacht basin .
ASSISTANT MAYOR TANTLEFF : Okay.
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MS. STROUD: And so they would use
the property between the yacht basin and
the bay for single-family homes.
They made a point to say that there
wouldn't be a condominium there and that
the property around the yacht basin to the
east would be lef t in open space.
They a ls o mentioned that t here's a
lease with the Village for a t ransf er
station, the garbage transfer station
right there, but didn't really indicate
what they would plan to do wi th that.
So those were the general parameters.
I would be happy to answer any
questions --or try to answer any.
ASSISTANT MAYOR TANTLEFF: May I?
MAYOR BERLIN: Sure.
ASSISTANT MAYOR TANTLEFF: We still
don't know who owns this property now.
Right?
MR. SEROTA: Sure.
ASSISTANT MAYOR TANTLEFF : So what if
like a year from now, AVA owns the
property and we're back to square one?
This proposal is with the Club and
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Joe Imbesi.
MR. SEROTA: Right.
you say it's a proposal,
In fact, when
the general
outl i ne is fro m Joe Imbesi, absolutely,
and in the event he's not the one
developing it, we would have someone else
to deal with.
ASSISTANT MAYOR TANTLEFF: Okay,
thank you .
MR . SEROTA: But at the moment, the
only claim that we have got here, the
reason we're here tonight, has to do with
a claim by the Club.
So that 1 s really where they are. I
think they are sensitive to some of the
issues that have been made apparent to us
and I think that they are wil l ing to in a
face-to-face way confirm that this i s
really what they're contemplating.
So in a sense, why are we here?
We're here to give you this information,
to tell you that we believe that as l ong
as we can represent to them that th i s
possible outline is not abhorrent to
you --okay, in other words , you say that
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no way we're falling on our sword, t h at
ain't gonna be built as long as you
don't say that, I th i nk that they're
willing to put this thing off indef i nitely
and try to work with us.
But there is good faith here on all
parts and if you were to tell me there's
no way that's going to happen, then I
think we have a duty t o at least express
to them that we don't think that's going
to happen real i stically and then we go
forward on Tuesday.
So that's really t he issue. If they
agree to put it off, if you feel like this
is something that you're will i ng to lis t en
to and that you're not going to say in
advance that this is something I can't
live with, then I t hink what happens is
this matter gets put off.
Now, it's still the Court that makes
t he order and in the past, we have had
some issues because the last t i me this was
supposed to go forward, I had a tria l
beginning that day and we filed a joint
motion and it still went up to the last
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moment before the Court continued it, even
though there was no way I could possibly
be there.
So if they agree to do this, then
they need to file this motion and we need
to get in.
If it's not granted or they don't
agree to do it, then I just want to make
you aware that we're going forward on
Tuesday on this hearing.
So really at this point, we'll just
open it up to you all. Do you have any
comments or thoughts about this?
MAYOR BERLIN: I will share my
observation.
My observation is that the
proposal --or I should say the plan as
described by our counsel as related to
them by Mr. Imbesi and his counsel with
regard to at least their present intention
to develop the east and west side of their
property, appears to be appears to
be --consistent with what I would say is
a reasonable approach to the development
of the property.
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Subject to the issue of height, which
they didn't discuss with regard to the
beach development, all of the other
elements that you related to us appear t o
be respons ive to many of the concerns that
have been raised in connection wi t h this
development .
So facially, it appears that t heir
current state of mind is to develop this
property cons i stent with t h e issues and
concerns that have been raised in
connection with this d e bate and this
litigation. That's very positive.
So when I take that into
consideration as to what do I thi nk is a
reasonable thing for us to do, I mean,
given that we are the Defendant in this
litigation and there is nothing to be
financially gained by pursuing it , forcing
them to go to the hearing, I see no value
in doing that at this time.
My opinion would be that we would say
to them, we agree it's a good idea to
indefinitely defer the hearing and the
proposal as outlined to us appears to be
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within the realm of reason and certainly
not o f fensive to me --I don't know. Th e
other members can speak for themselves
and certainly worthy o f discuss i on.
r t would be an opportuni ty for us to
begin a dialogue with them to resolv e this
thing.
T hat's my opinion.
COUNCILMAN BOGGESS: I would hope
this thing could be resolve d as quick as
possible because a l though the final pape r s
haven't been signed, the Kenilworth House
has been sold for 28 mill i on dollars to
Marty Margu l ies who built the Kenilworth
and he is angling for the Carlton Terrace
nex t door, which would be a big piece of
property.
The Harbour House North, if someone
tendered a contrac t to buy it and demol is h
it and pu t up a hotel --and they're
saying Ri tz Carlton. Ritz Carlton ain't
coming in every plac e.
(Laughter.)
MAYOR BERLIN: We would have three
Ritz Carltons?
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COUNCILMAN GORSON: Do we have three
Ritz Carltons?
MAYOR BERLIN: No. We have three in
Bal Harbour.
(Laughter.)
COUNCILMAN BOGGESS: I would hope
that we can continue working with Joe
Imbesi. He's a resident of the Village.
He's been here for many years. He has
children. They're involved in the
community, whereas the AVA group is out of
Toronto and have no allegiance to this
community fee at all .
COUNCILMAN GORSON: Isn't it that the
other properties do not have the access
that the west side needs?
MAYOR BERLIN: Well
COUNCILMAN GORSON: The Car l ton
Terrace wouldn't have it.
MAYOR BERLIN: No. That's
essentially apples and oranges because
COUNCILMAN GORSON: Well, but it's
important.
MAYOR BERLIN: Well, in terms of --
only the Club has the ability to at least
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present solutions to the marina property
within the Village --that's true --the
west side. That's true.
But what we're being asked today is
simply to respond to an indication by the
Club with respect to their plans with
regard to the beachfront and the marina
property.
The only point I want to go back to
that the Assistant Mayor raised is: As I
said before --I told you what I think we
ought to do, but the caveat here is that
ultimately we don't know who is going to
prevail in the Bal Harbour Club-AVA
litigation.
So theoretically, if AVA were to
prevail and t hey were to get control of
the Club, they might come to the City with
a different concept.
Now, from our perspective by opening
a dialogue wi th the current owner of the
property --at least the facial owner of
the property. I 'm not familiar with the
details of the i r litigation, but fac i ally
they're the owner of the property --we're
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no t committing ourselves and we're not
putting ourselves at a disadvantage
because ultimately, someone is going to
end up being the owner of that property .
If it ends up being the current
owner, well, we have just advanced the
process.
I f it happens to be somebody else,
they cou ld step in and continue the
dialogue with us. We haven't lost
anything.
So I don't t h i nk t he fact that their
litigation is ongoing ought to be an
impedimen t to us having a dialogue with
them.
COUNCILMAN BOGGESS: The thing about
it is , we're not lo sing anything.
MAYOR BERLIN: That's right.
COUNCILMAN BOGGESS: Regardless of
who w inds up with that property, they
still have to come to u s .
The r e's going to be a variance
somewhere along t he line. They're going
to improve the design. They 're going to
i mprove thi s, they're going to improve
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that.
We still have a good deal of
leverage. I'm not the least bit concerned
about this .
ASSISTANT MAYOR TANTLEFF: Mayor?
MAYOR BERLIN: Yes.
ASSISTANT MAYOR TANTLE FF : Yes, just
to add my thoughts.
I completely agree with everything
you said. I will stand on the· record that
I think we were right in no t granting the
rezoning initially; but having said that
and the Court mandating that we rezone, I
welcome a fresh opportunity.
I just wanted to echo what the Mayor
said. I look forward to them --if they
initially want to meet with the Mayor to
get a fresh start. Let them know we want
to work with them.
What they outlined in i tially does
sound like something that would beautify
the Village and be within our standards,
and I welcome the Mayor meeting with them.
MR. SEROTA: Okay. Mrs. Gor so n?
COUNCILMAN GORSON: I agree with the
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Mayor's opinion completely.
MR. SEROTA: Okay, that's fine .
That's really al l we need because at th is
point as the Mayor points out, we are the
Defendant .
To me, there's no t hing ga in ed with
pushing the thing on Tuesday. I f I felt
it was a slam dunk on Tues day, I might
feel differently . I might say that you
know what? Why do we have to have --
COUNCILMAN GORSON: Pardon me. If it
was a what?
MR. SEROTA: A slam dunk, meaning a
s i mple win for it .
If I felt that Tuesday was a certain
win for us, I might recommend that we go
forward on Tuesday.
COUNCILMAN BOGGESS: But you know
that's not the case .
MR. SEROTA : I know that that's not
the case .
So my feeling is to put this off
indefinitely . We lose nothing, as you
have all poin t ed out.
So that's really what we will do then
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is that we will have, as I sa i d, an
initial meeting. I think they would like
to meet with the Mayor.
We'll express to them without
violating the Executive Session or the
attorney-cl i ent privilege, at least in
some general ways , what your feel ing is.
I believe the result will be that
this he aring will be put off. If the
Court refuses to enter it --which I think
is unlikely, but possible with this
Court --then we'll go forward on Tuesday
and we'll report to you what happens.
MAYOR BERLIN: Okay.
COUNCILMAN GORSON: When are we
meet ing, the following week?
MAYOR BERLIN: We're meeting on the
19th.
COUNCILMAN GORSON:
following Tuesday.
COUNCILMAN BOGGESS:
third Tuesday.
Well, that's the
No. It's the
MAYOR BERLIN: You're correct.
That's correct.
COUNCILMAN BOGGESS: Two weeks after
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this hearing.
COUNCILMAN GORSON: It's the 17th, I
think.
MAYOR BERLIN: Okay. We are now back
in an open meeting.
(Thereupon, the Village Clerk,
Jeanette Horton, retu rned to the Council
chambers.)
MAYOR BERLIN: We are now back in an
open meeting.
Do you want to do a roll call?
VILLAGE CLERK HORTON: Mayor Berl i n?
MAYOR BERLI N: Here.
VILLAGE CLERK HORTON: Assistant
Mayor Tantleff?
VILLAGE CLERK HORTON : Councilman
Boggess?
COUNCILMAN BOGGESS: Here.
VILLAGE CLERK HORTON : Councilman
Gorson?
COUNCILMAN GORSON: Here.
VILLAGE CLERK HORTON: Councilman
Roth is not present.
MAYOR BERLIN: We're back in open
meeting.
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The attorney-client session has now
been terminated and members of the general
public are invited back into the Council
chambers for any further proceedings or
matters.
The time is now 6:45 p.m.
COUNCILMAN BOGGESS: Mr. Mayor, I
move we adjourn.
ASSISTANT MAYOR TANTLEFF: Second.
MAYOR BERLIN: All in favor?
THE COUNCIL (IN UNISON): Aye.
MR. SEROTA: Thank you very much for
get t ing out here on such short notice.
MAYOR BERLIN: Thank you.
(Thereupon, the attorney-client
session was concluded at 6:45 o'clock
p. m. )
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CERTIFICATE OF REPORTER
STATE OF FLORIDA)
ss.
COUNTY OF DADE)
I, CAROLE BER NARD BECKER, a Notary Public
in and for the State of Florida, do hereby
certify that I reported the foregoing
Attorney-Client Session at the time and place
hereinabove set forth; and that the foregoing
pages numbered from 1 to 29, inclus ive,
constitute a true and correct transcr iption of my
shorthand report of the he aring.
WITNESS MY HAND AND SEAL in the City of
Miami, Dade County, Flor ida, this 4 th d ay of
June, 200 1 .
CAROLE BERNARD BECKER
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