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HomeMy Public PortalAbout2002-04-16 AttorneyClient Session CASE 03-22741-CIV-COHNSNOWBAL HARBOUR VILLAGE ATTORNEY-CLIENT SESSION April 16, 2002 655 -96th Street Bal Harbour, Florida 8:40 o'clock a.rn. PERSONAL TOUCH REPORTING, INC. (305) 944 9884 MAYOR HOWARD J. BERLIN ASSISTANT MAYOR DANIELS. TANTLEFF COUNCILMAN PEG E. GORSON COUNCILMAN SEYMOUR II SY 11 ROTH ALFRED J. TREPPEDA, VILLAGE MANAGER JOSEPH SEROTA, ESQ. PERSONAL TOUCH REPORTING, INC. (305) 944 9884 2 THEREUPON, THE FOLLOWING PROCEEDINGS WERE HAD: MAYOR BERLIN: Attorney -client session April 16th, 2002. Call to order. Roll call of members, please. MRS. HORTON: Mayor Berlin? MAYOR BERLIN: Present. MRS. HORTON: Assistant Mayor Tantleff. ASSISTANT MAYOR TANTLEFF: Present. MRS. HORTON: Councilman Gorson. COUNCILMAN GORSON: Here. MRS. HORTON: Councilman Roth. COUNCILMAN ROTH: Here. MAYOR BERLIN: We will skip the pledge because we'll do it a little bit later, if that's okay with everybody. All right. The open meeting has been concluded. The time is now 8:40 a.m. We are now going to have an attorney-client session in accordance with Florida Statute 286.011 in the case of Bal Harbour, Inc. and Ava Development versus Bal Harbour Village council, Eleventh Judicial Circuit, Miami Dade County, PERSONAL TOUCH REPORTING, INC. (305) 944-9884 3 Appellate Division, Case Number 98-026 AP. The session is estimated to last less than a half hour. The following people will be in attendance at the meeting. Myself and Village Council members Tantleff, Garson, and Sy. COUNCILMAN ROTH: That's me. MAYOR BERLIN: Village Attorney, Joe Serota; Village Manager, Alfred Treppeda. We don't include Jeanette in this? You're silent MRS. HORTON: I leave, and then you call me back at the end. MAYOR BERLIN: Okay. These proceedings will be reported by a certified court reporter and at the conclusion of all litigation discussed, the transcript will be made part of the public record. All those individuals who I have not named shall leave the room at this time. (Thereupon, Ms. Horton left the Council chambers.) MR. SEROTA: Good morning. We are PERSONAL TOUCH REPORTING, INC. (305) 944-9884 4 here, as the Mayor said, pursuant to Florida Statute 286.011. We are here to discuss matters relating to settlement and strategy concerning litigation expenditures as provided by Florida Statute. At this morning's session, this is somewhat of an update and status report about where we are. I do need a little bit of direction from you. I'll tell you what I recommend we do and then just see if any of you on the Council have concerns about it. By way of background, let me just give you a five minute overview and then let you know exactly where we are. This case involves the rezoning of the Bal Harbour Club property from a private club that is PC or R-1 Single Family Zoning to Oceanfront, which is OF High-Rise Development. The village council I'm going to give you a little history here. The Village Council denied the rezoning that I have just outlined. The Club appealed. PERSONAL TOUCH REPORTING, INC. (305) 944-9884 5 The Court said that the Council had no basis to deny it and sent the matter back for further proceedings. The Council then had a new hearing and issues relating to membership in the Club came up and there was a question as to whether the Master Plan was passed properly the first time and rezoning was denied again. Then there were some further appeals. At that time, the Appellate Court said that the decision to rezone in their opinion was clear and unambiguous and that the Council should allow the rezoning. At that time, the Court --in the Court's ruling the Court specifically reserved jurisdiction to grant attorney's fees and costs to the Club, and that's essentially where we have been since July of 2000. The Club filed a motion for fees and costs, and that was set for hearing. This was about a year ago. At that time, I came before you and we discussed it because the Club was not PERSONAL TOUCH REPORTING, INC. (305) 944-9884 6 They that anxious to move forward on it. didn't think it was in their best interests to be trying to get sanctions against the Council and we just agreed to delay it. There was really nothing for the Council to do. There was no reason why we had to push the issue, and we agreed to delay it. Since then, we have had a discussion with Joe Imbesi and his attorneys and he agreed that he didn't think it was in his best interests to pursue the motion, either, but at the same time he wasn't willing to simply dismiss the claim forever, and that's really where we have sat. In the last month or two, the Appellate Court has gotten a little bit impatient with everybody by saying, do something. We're not just going to allow you to leave this sitting out there forever. If you want to pursue it, pursue it. If you're going to dismiss it, dismiss it. So I have had discussions with the PERSONAL TOUCH REPORTING, INC. (305) 944-9884 7 attorney for the Club and the Club is proposing that they dismiss it, that they just dismiss their claim and their motion for fees, but it's called without prejudice. The term without prejudice means that although it's being dismissed and the case really will be dismissed, they're saying it's without prejudice meaning that at some point in the future --and they're proposing that they should have at least two years --they could bring it up again. The Village's exposures, just to get this in perspective, is probably somewhere between 50 and a hundred thousand dollars in legal fees. There is also conceivably other exposure relating to some kind of a civil rights claim if sanctions were entered against the Council. The problem is, I don't think that Mr. Imbesi really has any damages. At this point, he hasn't pursued it. He's got problems with the sellers that he's litigating with, and it would be very PERSONAL TOUCH REPORTING, INC. (305) 944-9884 8 difficult for him to claim that anything the Council has done has resulted in his delay or money damages. In any case, I'm recommending that you allow me authority to do the following, and that is: First of all, allow them to dismiss it. That's kind of a no brainer. You want to dismiss a claim against us, go ahead and dismiss it. They're proposing two years, that they would like to have the opportunity to bring it back in two years. I'd like to see if I can bring it under two years. I'm not sure I can, but it's worth trying. I think my own feeling is that this claim will go away at some point. It's hard to predict exactly the time frame when the matter will go away because there's other circumstances beyond our control that is delaying this project. It does appear from our discussion with Mr. Imbesi that his concept of what he wants to build here is consistent with at least some of the concerns over the years that this Council has expressed PERSONAL TOUCH REPORTING, INC. (305} 944-9884 9 about having development there. But the bottom line is, I understand that this Council will make its own decisions on the merits of any proposal that is made to you and whether or not there is this claim sitting out there or not sitting out there, I don't think is going to influence you one way or the other. If Mr. Imbesi at some point is unhappy with the way this Council treats a proposal when and if it comes, then of course he may claim that he still has his opportunity to pursue this claim. I will tell you that it's my feeling that the longer this goes on --that is, him not pursuing it and dismissing this case the less meritorious his claim will appear. In other words, let's say a year and a half from now, a proposal comes before you, you reject it or you approve it in some way that he's unhappy and then he d~cides he wants to pursue something against you, at that point it's been three PERSONAL TOUCH REPORTING, INC. (305) 944-9884 10 years down the line and I lhink that it will appear to whatever Court gets the matter that this was being used strategically and, therefore, perhaps since whoever it is that ultimately makes the decision will not necessarily feel that this is the kind of matter that they should grant. So at this point~ really all I'm recommending is that, again, we do nothing. We'll allow him to dismiss a claim against us and if he insists upon the two years, then we don't really have a lot of control. If I can get him under two years, then that's what I'll do. So that's really where we are. I just wanted to bring it before you to let you know that this claim will shortly be dismissed and that there is still some possibility --although I think it's rather small back again. that the matter could come Does anybody have any questions or any thoughts about it? No? Nothing? Because we still have PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 1 10 minutes here. COUNCILMAN GORSON: Can he bring it up within the two years? COUNCILMAN ROTH: Any time. MR. SEROTA: Yes. He could bring iL up any time, but the point is: He's going to dismiss it. So he's got to resurrect it. He's got to file a whole new claim and then what I would be hopeful is that if in fact that happens, It doesn't fall in front of the same Judge. It's going to be a different Judge who's going to look at this who is going to have to become familiar with the whole history of this thing. I think that it's kind of a win win for us. It's a good thing to get this thing dismissed and if this comes up again --and I really think it's unlikely, but certainly you need to be aware that it could come up --I think we're in better shape the next time it comes up than we are now. That's essentially it. I don't think you --you don't have anything before you PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 2 that Imbesi is bringing in front of you. So you don't really have any decision to make. MAYOR BERLIN: Do you need a motion? MR. SEROTA: I don't. I really don't need any formal action. I just want to make you aware of what I'm doing and unless anybody has any questions or objections to the way in which we're proceeding, then we don't need to do it nor do we need to take any public action at this point because to allow somebody to dismiss a claim against you is not the kind of thing that -- COUNCILMAN ROTH: It's a no brainer. MR. SEROTA: Right. ASSISTANT MAYOR TANTLEFF: we fight it? (Laughter.) So should MR. SEROTA: We insist that you sue us. We do not want you to dismiss it. Anyway, that's really where we are. Mr. Mayor? MAYOR BERLIN: Okay. Does anyone else have anything they wish to say? PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 3 MR. SE ROTA: We still have 10 minutes here if anybody wants to talk about --no. I'm just kidding. MAYOR BERLIN: We are now in an open meeting. The attorney-client session has now been terminated and members of the general public are invited back into the Council chambers MR. SEROTA: Stop right there. Let Jeanette come back in so we can go back on the record. (Thereupon, Ms. Horton returned to the Council chambers.) MAYOR BERLIN: 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 8:55 a.m. (Thereupon, the session was concluded at 8:55 o'clock a.m.) PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 4 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 session at the time and place hereinabove set forth; and that the foregoing pages numbered from 1 to 14, inclusive, constitute a true and correct transcription of my shorthand report of the hearing. WITNESS MY HAND AND SEAL in the City of Miami, Dade County, Florida, this 18th day of April, 2002. CAROLE BERNARD BECKER PERSONAL TOUCH REPORTING, INC. (305) 944-9884 1 5