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.
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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,
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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?
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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.)
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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
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