HomeMy WebLinkAboutMinutes Executive Session 020995•
r
i
CITY OF PALM BEACH GARDENS
COMMUNITY CENTER
EXECUTIVE SESSION
THURSDAY, FEBRUARY 9, 1995
9:30 - 10:00 P.M.
PRESENT
DAVID CLARK
(Mayor)
LINDA MONROE
(Vice- Mayor)
LAUREN FURTADO
(Councilwoman)
JOE RUSSO
(Councilman)
ERIC JABLIN
(Councilman)
BOBBIE HERAKOVICH
(City Manager)
THOMAS BAIRD
(City Attorney)
CERTIFIED
COPY
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
2
•
1
BE IT REMEMBERED that the following proceedings
2
were had in the City of Palm Beach Gardens, in the County
3
Palm Beach, State of Florida, on the 9th day of February,
4
1995, to -wit:
5
MR. BAIRD: This session involves the Sun Terrace
6
at Lake Catherine Homeowners Association, Inc. And
7
Dottie Brown, who is the president of that
8
association's, lawsuit for injunctive relief against
9
the City of Palm Beach Gardens.
10
I see Lauren shaking her head and Mr. Brown
11
making -- pretending he's not president, but his
12
attorney has pled in the pleading of the lawsuit that
13
he is president of the homeowners association. So I
14
can only go by what I read.
15
The lawsuit seeks injunctive relief against
16
the city from lighting the fields. And also alleges,
17
although it's unclear whether they're seeking relief,
18
of damages.
19
It alleges that the property values would be
20
some damaged amount without specifying. And it also
21
alleges a violation, a nuisance violation of their
22
client's enjoyment.
23
It's filed as a class action. It was
24
dismissed earlier this week by the judge because it
25
failed to plead properly a class action.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
3
•
1
The judge gave them ten days to amend. They
2
have indicated they will amend.
3
After the motion to dismiss hearing, I spoke
4
with their attorney, Mr. Selz. Mr. Selz wanted to
5
know if now that they had filed a lawsuit, that he was
6
willing to negotiate a settlement of it.
7
I indicated that at this point I had not
8
received any direction from my client. I had to get
9
their feelings about a settlement. But that I would
10
be discussing it with you at some time and I will
11
return to him with whatever response the city had.
12
Let me briefly give you some background on
13
how the city came to get the suit on this action
14
because I think it will be important to your
15
deliberation of how to proceed from here.
16
In December, myself, Greg Dunham and Glenn
17
Lindahl met with Steve Selz, the attorney for the
18
homeowners association, and Donnie Brown.
19
In that meeting, which they had requested,
20
Mr. Lindahl and Mr. Dunham outlined for the
21
association what the city was prepared to do to
22
mitigate impact upon their property. And it was a
23
rather extensive discussion about the length that the
24
city was willing to go towards resolving their
25
concerns.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
2
3
4
5
6
7
8
9
10
11
12
• 13
14
15
16
17
18
19
20
21
22
23
24
—0 25
4
It involved design issues, it involved
landscaping issues, and it involved some orientation
of -- reorientation of fields. And it also involved
engineering issues related to how lights cast their
light on adjoining properties.
During that discussion staff indicated that
that was the direction that they had received from
counsel, they wanted us to mitigate as best as
possible an impasse, but that they did not have
specific plans to show the association at this time.
Mr. Lindahl requested some time to get with
his staff and come back and present the association
with the plans that we felt could be implemented and
mitigate their impasse.
It was suggested that he would expedite that
effort. And although we were approaching the holiday,
that he could come back sometime in the middle of
January with those plans.
The response by Lake Catherine's attorney
was that their concern was that we could -- the city
council could change whatever -- for example, hour
limits were implemented.
If we said we were going to do it, to not
only allow lighting from 9:00 o'clock, and let's say
you amended your comprehensive plan to prohibit -- go
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
5
•
1
beyond 9:00 o'clock, their concern was that future
2
councils could change that and increase it to 10:00
3
o'clock.
4
Therefore, we suggested that the most
5
appropriate way to address their concerns so that they
6
weren't having to fight this battle in the future, was
7
a friendly lawsuit against the city.
8
My response was twofold. First, it was that
9
I had not yet been involved in friendly litigation.
10
And, secondly, that I did not believe that even a
11
friendly lawsuit would be welcome by the city council.
12
I suggested that a lawsuit might hinder our
•
13
efforts to work together to resolve these issues. And
14
I suggested that it would be better for the city to
15
put its resources into landscaping and mitigation
16
efforts rather than attorney's fees. I suggested that
17
they consider that.
18
And at that point they seemed to agree that
19
the better approach was to wait for Mr. Lindahl's
20
plans to come back.
21
Of course, you know the results. They did
22
not wait for those plans to come back and instead
23
filed a lawsuit against the city.
24
I think for your deliberations, there's a
25
couple of issues that need to wrestle with. The first
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
6
. 1 is exactly what direction you'd like to give me of how
2 you would like to proceed with what's being termed as
3 a friendly lawsuit by the association's attorney.
4 Clearly, it was their intention from the
5 beginning to force the issue by filing a lawsuit.
6 And, clearly, it was their intention even at that
7 meeting to force the issues by -- to the extent of
8 possible bindings of future city councils.
9 The threshold, I guess, public policy issue
10 for you is, is it good public policy to cave in to the
11 demands made through litigation of this.
12 You sit here and deliberate it. And it was
• 13 a difficult decision. You weighed the issues. There
14 were many people pro and con on the issue. And you
15 made what you felt was the best decision.
16 The litigation, in effect, says that if the
17 city council renders a decision we don't like, we may
18 be able to change that decision or bind them in a way
19 they did not intend to be bound by litigating the
20 issue and forcing them to settle that litigation.
21 The second issue is one of resources. There
22 may or may not be limited resources here. And is it
23 better to put your resources into landscaping or other
24 improvements, to help improve that situation, or is it
• 25 better to put that money into attorney's fees to
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
II
1
hopefully prevail in that litigation.
2
The third approach that obviously can be
3
taken, a variation of it also is, you can continue to
4
litigate. You, in all likelihood, in my judgment,
5
will prevail in that litigation because I think it's
6
clear that these are the kinds of decisions that city
7
councils are elected to make.
8
And I don't think a judge will put himself
9
or herself in the position of taking away from you the
10
opportunity and the requirement that you make those
11
tough legislative decisions.
12
I think there truly is a separation of power
•
13
issue that will ultimately lead into the city
14
prevailing in this case.
15
The variation on this is if you decide that
16
you want to continue to proceed to defend the
17
litigation, you need to consider whether you want, for
18
negotiating purposes, if you decide to continue any
19
negotiations, to suggest that we only have a limited
20
pool of money, we're going to use that to improve your
21
neighborhood, or we're going to use that to pay
22
attorney's fees to defend the litigation.
23
The --
24
MR. CLARK: But not both?
25
MR. BAIRD: But not both, right.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
2
3
4
5
6
7
8
9
10
11
12
• 13
14
15
16
17
18
19
20
21
22
23
24
• 25
The alternative, of course, is to do both.
And the other alternative is to do some variation of
that.
My best estimate of what is likely to happen
should you decide to continue is that I think they
will have to bring an action for a temporary
injunction when you begin to erect the light towers
because I believe that it's at that point that they
would feel threatened or impacted. And that if
they're serious about their litigation, they have to
seek a temporary injunction.
Because of the standards of the temporary
injunction hearing, one of the standards is is there
a likelihood that the Petitioner would prevail on the
merits of the case if the case goes to trial.
And so typically if you win that preliminary
injunction hearing, you're going to win the whole
thing because they're not, going to continue to
litigate after the lights go up because of two
reasons.
Number one, the damage is done. And, number
two, a judge has already rendered an order saying, I'm
not likely to make a different decision later.
So in terms of the cost of the litigation,
the cost of the litigation is not likely to be the
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
0 1
2
3
4
5
6
7
8
9
10
11
12
• 13
14
15
16
17
18
19
20
21
22
23
24
• 25
9
kind of costs that you've experienced in some of your
other litigation. Nevertheless, there will be a cost.
To give you an idea of the cost of
litigation, in the DeLuca case, which we prevailed on
in summary judgment, which in my opinion was not a --
you did not expend a lot of attorney time in the case
even though we got a good result, the expense of that
case was about twenty -seven thousand dollars.
MR. CLARK: Well, that's cheap.
MR. BAIRD: That case went through summary
judgment. It also went through a temporary injunction
hearing.
DeLuca, unlike most litigants, decided to
continue with her action even after the city prevailed
in that temporary injunction hearing.
As best as we can determine from the
association's resources and willpower, there are, to
the best of our knowledge, there are rumors that the
association has a large pool of money from which they
are willing to fund litigation.
We don't know that for sure. We've only
heard that some -- the former president of the
association passed away and left the association
money.
And that's simply a rumor that we've heard.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
10
•
1
There's no way of confirming that.
2
But I think you're looking at, were this to
3
go through a temporary injunction hearing, I think a
4
figure of twenty -five thousand is a reasonable
5
estimate of what it might take to get to that point
6
because you will have some expert witness testimony
7
from Mr. Lindahl, and perhaps some other experts that
8
might be necessary to prove that the impact is not
9
what they say.
10
So, with that, I'll turn it over for any
11
questions or comments. I would appreciate some
12
direction.
•
13
MR. CLARK: Lauren, have you got a question?
14
MS. FURTADO: Is there any way that the
15
association can be given updates on the results of
16
what was ongoing?
17
You know, after we voted on the lights being
18
installed, when the staff was directed to do the
19
traffic analysis and all the things which they did,
20
and because of what happened, the association has not
21
been apprised of what the final findings were and what
22
we could do, what could be done to help alleviate some
23
of their concerns.
24
We can't --
•
25
MR. CLARK: Is your concern that the association
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
11
1
leadership hasn't informed the members of what the
2
city was willing to do?
3
MS. FURTADO: The former association leadership
4
did not, I believe, in my opinion.
5
Comment number two, as far as changing the
6
times, we have no control over that. We don't know --
7
I mean, it's like anything else. Anything you've done
8
can be changed given a different council, and so
9
forth.
10
MR. CLARK: Policy making evolves.
11
MS. FURTADO: I was just asking, can -- without
12
us going one way or another, saying yea or nay, can
•
13
the association be apprised of what the findings were?
14
MR. BAIRD: Certainly.
15
MS. FURTADO: And that won't affect anything one
16
way or the other. I mean --
17
MS. HERAKOVICH: However, the council has not yet
18
been informed of those findings.
19
MS. FURTADO: Well, I understand that. I
20
understand that.
21
I'm just saying that --
22
MR. CLARK: But we haven't sanctioned it.
23
MS. FURTADO: Exactly.
24
But I'm just saying, let's say at the next
25
meeting it was brought up and we sanctioned it. And,
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
12
•
1
you know, could that be done without interfering with
2
anything that's going on?
3
MR. CLARK: The downside risk is that you've
4
already put your offer on the table. And that will be
5
the starting point for any eventual resolution.
6
MS. FURTADO: To me, though, as liaison to that
7
committee, one thing that was said that night we voted
8
an the issue was just because the vote's been taken
9
does not mean that all the other areas that we
10
promised that we'd look into and try to resolve to
11
make the situation as painless as passible, would
12
continue to go forward.
•
13
MR. JABLIN: Yes, but they weren't listening,
14
otherwise they wouldn't be suing us.
15
MS. FURTADO: That's not -- I don't want to be in
16
a situation of saying, well, because you didn't play
17
the game all the way, we're just going to forget all
18
about it.
19
MR. JABLIN: I'm not suggesting that.
20
MR. RUSSO: I'd just like to say this is not the
21
same issue. This is an issue of a lawsuit and it's
22
not an issue --
23
MS. FURTADO: We're not talking Lake Catherine,
24
correct, we're talking Sun Terrace?
•
25
MR. RUSSO: This is an issue of a lawsuit, not
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
13
•
1
what we basically did. As far as I am concerned --
2
MS. FURTADO: No, I understand that.
3
MR. RUSSO: As far as I'm concerned, I think we
4
negotiated the night that we voted for this.
5
As you well know, we tried to look at the
6
whole project overall and tried to do what was best
7
for the residents. I agree with what our attorney
8
said earlier, that we would be sending out a bad sign
9
if we went back and further negotiated.
10
As far as I'm concerned, they have a
11
negotiated settlement. And I'm willing to sit down
12
without a lawsuit and work out and show them whatever
13
we'd be willing to do there.
14
But I can't -- I don't think that it's fair
15
to us and the rest of the residents for them to hold
16
the litigation hammer over our heads in order to sit
17
down and negotiate further.
18
MS. FURTADO: Well, I agree with you. I'm not
19
saying that.
20
MS. MONROE : Just one comment for the sake of the
21
person who's trying to take the record. You know, if
22
we all talk at one time, she's going to have trouble
23
identifying us.
24
Tom, I think I'm a little confused at one
•
25
point. I'm not sure how we have alternatives.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
0 1
2
3
4
5
6
7
8
9
10
11
12
• 13
14
15
16
17
18
19
20
21
22
23
24
25
14
If they are -- if there is a suit against
us, all we can do is respond. We can't substitute
trees and plants and a good engineering study.
I feel like I've missed something.
MR. CLARK: I think what Tom's saying is you can
go ahead and make improvements, for instance. Even
though they're suing us, that doesn't mean you're
stopped from going out and putting in the berms and
putting in the trees. You can do that.
But the problem with that is that I think
you've kind of played your hand to a certain extent.
And at that point you still have the litigation there
and you have nothing to give them.
So you can't make it ultimately go away.
There's nothing -- you've got to have something of
value to give back to the litigants at some point.
Now, I think the philosophy that we've
suggested here of we're not going to give you anything
until the lawsuit goes away, they can voluntarily
dismiss it at any time if they so wish, and then we
can sit down with them again and give them something
with the council's approval once the council has
reviewed it.
But if you -- do you see where we're coming
from? So you have alternatives, just some of them
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
15
don't make a lot of sense.
MS. MONROE: I think I now see it. Those of us
not in the law are sometimes a little slower than you.
I appreciate your comments.
In other words, if we were to go forward in
our -- say, look, we've had a plan and we're going to
continue to go down the road, I'm not talking about
playing our hand and negotiating, I'm just simply
saying we've made a commitment, we're going to go down
that road. The problem is then we end up with two
expenses.
MR. CLARK: That's right.
MS. MONROE: That's the main thing. I don't see
it as playing a hand. I just see it as, gee, we've
got the cost of the lights and the landscaping and the
berms and the engineering costs, and we have costs of
litigation.
So if we put that aside and tell them we've
got so much money, the further we go into that, the
less we've got to help you, you let us know when you
want to -- whether you want us to start landscaping.
MR. CLARK: Yeah, you basically give them the
decision. You tell them, you tell us how you want the
money spent.
MR. JABLIN: How you want the money spent, right.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
0 1
2
3
4
5
6
7
8
9
10
11
12
• 13
14
15
16
17
18
19
20
21
22
23
24
• 25
16
MS. MONROE: Okay. That's fine with me.
MR. CLARK: And if there is a way to get the
information to these people in a low key way about
what we've done, then that's helpful.
Maybe there are some back - channel ways of
doing that but we can't put any kind of formal
proposals on the table because the council's saying if
we do review it, then it has to be in a public
meeting, I think, doesn't it?
MS. FURTADO: Well, that's what they need to
know, that we can't give them something we haven't
seen.
MR. CLARK: Right.
MS. FURTADO: We're not trying to be sneaky about
this, we just simply have not had a proposal yet, so
we can't say this is what we're going to give you
right this minute.
MR. CLARK: Right.
And because of the fact that we've got
litigation pending, it doesn't make a lot of sense for
us to, -you know, put that in the --
MS. FURTADO: Right.
MR. CLARK: But I think they' re going against the
policy making role of the council. And that's the one
thing you can't give in on.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
17
•
1
I mean, you can give in on a lot of other
2
litigation, but you can't have them tell you what to
3
do, or tell the next council what to do. That's bad
4
policy.
5
MS. FURTADO: Is that all the consensus you need?
6
It sounds like you've got it.
7
MR. BAIRD: Yes.
8
I would make this suggestion to you in terms
9
of them getting the message. I think it's important
10
that there be some very brief limited discussion by
11
council at your next meeting under maybe the mayor's
12
comment or your comments or the city manager's report.
.
13
The association should be advised ahead of
14
time that there's going to be a brief report of the
15
status of Lake Catherine Lakes. And at the time the
16
message should be sent clearly that the council has
17
limited resources, they would like to go forward with
18
the plans but they have instructed their engineers and
19
planners to prepare some mitigating facts.
20
But the alternative is to spend that money
21
in litigation and allow them -- air that publicly so
22
that they understand that's the terms. And it's one
23
thing for their attorney to play tough guy with me,
24
it's another thing for the association who is impacted
•
25
and have to face up to those issues.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
18
.
1
And my guess is, unless they really do enjoy
2
friendly litigation, that they would rather have
3
improvements that you have been willing to make a
4
substantial commitment towards to improve their
5
community.
6
MR. CLARK: If we're going to do this at the next
7
meeting, I. won't be there. So it wouldn't be
8
something that I could talk about, but certainly
9
Bobbie, if you could do that?
10
If would be nice if we had it early rather
11
than late so people didn't have to sit around until
12
11:00 o'clock.
.
13
MS. FURTADO: Right.
14
MR. CLARK: Perhaps like under presentation.
15
Pardon me?
16
MS. MONROE: How about under presentation, let
17
the city manager make a presentation.
18
MR. CLARK: Can we do that? That's kind of an
19
odd place for a city manager to make a presentation.
20
MS. HERAKOVICH: Why don't I just rearrange the
21
agenda?
22
MR. CLARK: Okay. That'll work. Anything you
23
want to make it work.
24
MR. RUSSO: You can't rearrange the agenda.
•
25
MR. CLARK: Why not?
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
19
.
1
MS. MONROE: Why not?
2
MR. RUSSO: Because it's a listing that you
3
publish at the beginning of the year.
4
MS. HERAKOVICH: No, the city manager's report
5
was previously at number four or five. It's now ten
6
or eleven. We moved it.
7
MR. CLARK: We can reorder it.
8
MS. HERAKOVICH: We can reorder it.
9
MR. CLARK: Yeah, you can move to reorder it at
10
the beginning of the meeting, and then reorder it for
11
the purposes of the one meeting.
12
Why don't we do that?
•
13
MS. MONROE: This is actually a vote, we've got
14
to be that formal on it at the meeting rather than
15
ahead of time?
16
The reason I say that, you know, the public
17
looks at an agenda, and if they see something at the
18
bottom, they say, I can't show up for that.
19
MR. CLARK: That's a point too.
20
MR. BAIRD: Well, all they say under city
21
manager's report is city manager's report. Sometimes
22
items are listed, sometimes they're not.
23
MS. MONROE: The public needs to know. This
24
needs to be --
•
25
MS. FURTADO: Every Monday we have a meeting,
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
WE
1
so --
2
MR. CLARK: Well, let me make this suggestion.
3
I'm not aware of any legal impediment to the
4
city manager making a presentation on the status of
5
Lake Catherine Lakes. My suggestion would be that
6
this would be a presentation of the status of Lake
7
Catherine Lakes.
8
At in that report she can advise you that
9
the status is unclear because of this litigation.
10
All right.
11
MR. JABLIN: One comment.
12
We have one negotiator and I think we ought
•
13
to stay that way.
14
MR. CLARK: That's a good point.
15
MR. RUSSO: Excuse me, my point is we don't have
16
a negotiator.
17
MR. JABLIN: We have a lawyer.
18
MR. RUSSO: No, they have our negotiations. They
19
have our settlement. This is not a negotiation.
20
MR. CLARK: I think what Eric means is we have
21
one spokesman for the litigation. And right now it's
22
our attorney.
23
MR. JABLIN: We have one spokesperson.
24
MR. CLARK: Right.
•
25
Okay. I think we all concur with that.
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
21
•
1
Tom, do you need anything else?
2
MR. BAIRD: That's all I have.
3
MR. CLARK: So at .this point do we just close the
4
executive session?
5
MR. BAIRD: We close the attorney- client.
6
MR. CLARK: All right.
7
We'll close the attorney- client session and
8
reopen the public meeting.
9
(Whereupon, the proceedings were concluded.)
10
11
12
•
13
14
15
16
17
18
19
20
21
22
23
24
•
25
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400
22
THE STATE OF FLORIDA )
ss
COUNTY OF PALM BEACH )
I, Mary E. Lesson, Certified Reporter and Notary
Public duly and qualified in and for the State of Florida,
do hereby certify that the foregoing transcript is a true
and correct transcript of my original stenomask notes.
I further certify that I am neither attorney or
counsel for, nor related to or employed by any of the
parties to the action; and furthermore, that I am not a
relative or employee of any attorney or counsel employed by
the parties hereto or financially interested in the action.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my Notarial Seal this c4 1 day of March, 1995.
40
L J
Mary E. Lesson
NOTARY PUBLIC
LEY AND MARSAA COURT REPORTERS
(407) 686 -0400