2004.04.05_TC_Minutes_RegularEsquire Deposition Services (561) 659-4155
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APPEARANCES:
COMMISSIONER MIRIAM SWICK
COMMISSIONER RACHEL SCALA-PISTONE
COMMISSIONER ROBERT L. LOWE
MAYOR THOMAS J. REID
VICE MAYOR JOSEPH J. ASSELTA
THOMAS E. SLINEY, ESQUIRE
TOWN MANAGER BEN SAAG
LARRY CORMAN, ESQUIRE
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2 BE IT REMEMBERED, that the following
3 proceedings were taken on Monday, the 5th day of
4 April, 2004, beginning at 1:00 p.m., to wit:
5 MR. REID: Good afternoon, public and the
6 Town of Highland Beach Town Commission. It's
7 Monday at April 5th, 1:00 p.m.
8 We are assembled for this special meeting
9 to review the procedures for the
10 attorney/client private session.
11 Would you call the roll, please.
12 (Roll Call.)
13 (Pledge of Allegiance.)
14 MR. SLINEY: Mr. Mayor, the only two
15 other things we do in the open sessions are we
16 announce the people that will be attending the
17 closed session, which are the entire members
18 of the Town Commission, which are here, and
19 which Doris has taken the roll call on, plus
20 Town Manager Ben Saag, Larry Corman, and
21 myself.
22 We are also supposed to estimate the
23 length of time, because once the closed
24 session is over, we then open the session up
25 and say -- and then Doris will come back and
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1 conclude that we have concluded the private
2 session. I have no crystal ball; I would say
3 two hours or less, just for the purpose of
4
giving an
estimate.
just complying with the statute in that we
15
5
MR.
LOWE: Well,
what's
going to happen
6
with two
hours?
Commissioner Scala-Pistone, Vice Mayor Joseph
20
7
MR.
SLINEY: I'm
just
reading the
8
statute.
The statute
says
you're supposed to
9
do that;
you're supposed
to
give an estimate.
10
There's no
magic; if
it's 15
minutes or 20
11
minutes --
12
MR.
LOWE: Okay.
13
MR. SLINEY: -- that's okay, too. I'm
14
just complying with the statute in that we
15
have to give an estimate.
16
MR. LOWE: Okay.
17
MR. SLINEY: So I would give that. And
18
then to reiterate the -- Commissioner Zwick,
19
Commissioner Scala-Pistone, Vice Mayor Joseph
20
Asselta, Mayor Tom Reid and Commissioner Lowe
21
are the Commission members in attendance.
22
Doris, I think that concludes all we have
23
to do at the open meeting. So now we'll have
24
Doris -- we can adjourn that meeting and then
25
Doris will come back when we conclude the
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special meeting. We can just -- we say that
2
the pre -meeting is concluded and we will
3
recommence after the private session's over.
4
MR. REID: Whatever you say. All right.
5
The special meeting has now ended, and we will
6
go into the closed session.
7
MR. SLINEY: I've got a few remarks to
8
set the stage. The court reporter will --
9
MR. REID: Do I have to go through the
10
whole --
11
MR. SLINEY: No.
12
MR. REID: Okay.
13
MR. SLINEY: The court reporter will take
14
all the comments from now on. Just -- I know
15
some of you have been through private sessions
16
before. The entire session will be
17
transcribed by a court reporter, and the court
18
reporter is here from Esquire Deposition
19
Services.
20
The transcript is sealed until the
21
litigation is concluded, and then the
22
transcript will be public record, and the
23
press or anybody who might be interested in
24
seeing what happened here can look at it.
25
So I always tell people, remember that
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whatever you say here could
ultimately be
on
2
the public record.
16
Trust Company case. We're here talking about
3
The discussions we have
pursuant to
the
4
statute that allows us to do
this are confined
basically saying that they had certain rights
5
to settlement negotiations or
strategies
As a result of that -- and I'm skipping
6
related to litigation expenditures.
24
7
I'm going to give a --
I know all of
you
8
are familiar with the case,
as you heard
it at
9
the public hearing, both on
the residents
and
10
from Margaret Cooper. So I'm
just going
to
11
give just a very, very brief
overview of
the
12
case.
13
As you all know, originally, there was a
14
24 -acre RPUD. We had a 17.3 acres of that got
15
squared off and that was in the Resolution
16
Trust Company case. We're here talking about
17
the disposition of the remaining 7 acres.
18
In approximately 1999, there was --
19
Ms. Cooper and her clients came to the Town,
20
basically saying that they had certain rights
21
that they wished to have the Town recognize.
22
As a result of that -- and I'm skipping
23
through a lot of things -- there was a
24
Planning Board hearing, I believe on March
25
28th, 2000, where the Planning Board looked at
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this.
2
It became evident to us, as a result of
3
that meeting, that there was a conflict what
4
various rights that properties owners have.
5
Ms. Cooper -- actually, it was John Randolph;
6
Ms. Cooper was not there -- Mr. Randolph, the
7
attorney, made a presentation on behalf of
8
Ms. Hoffman.
9
The adjoining property owners' attorneys
10
got up and basically said that they disagreed
11
with that; that they did not agree that she
12
had any vested rights.
13
So looking at it from the Town's point of
14
view, the Town felt that the best thing to do
15
was to file a declaratory judgement action,
16
basically joining all the various parties, and
17
have the issues litigated, in order to try to
18
insulate the Town from any damages as there
19
had transpired in the RTC case.
20
So as a result of that, on May 1st, 2000,
21
the Town filed a declaratory judgement action.
22
Now, and we are here approximately four
23
years later and declared the public hearing.
24
Larry and I -- and Larry's going to give some
25
comments after I get through -- the main
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issues here that Larry and I see are basically
2
two issues that really relate to the substance
3
of the case.
4
Now there's a statute of limitations
5
issue, and the claim of vested rights by
6
Hoffman. Now, Larry will expound on that a
7
little more. We think that the statute of
8
limitations issue is going to be a hard issue
9
for them to get over, for various reasons,
10
which I think have been in the record, and
11
which we may have discussed before.
12
If she can get over the statute of
13
limitations argument, then she has a shot at
14
the vested rights argument, but we think she
15
has a problem there.
16
We think she has a problem in the vested
17
rights argument because -- I don't know that
18
the record will ever show -- that unlike the
19
17 acres where they actually turned shovels,
20
put, you know, money in the project and
21
planning, I'm not sure there's going to be any
22
evidence to show that on 7 acres, that they
23
actually invested money and that they actually
24
relied on the Town to their detriment.
25
Now, in today's session, we are going to
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have a discussion among the commissioners.
2
Larry and I will be here to answer questions.
3
We cannot vote today; I think that was
4
clear. We will have to vote on this at a
5
public session. Obviously, you could approve
6
it, you could disapprove it, you could table
7
it, you could counterpropose, you could
8
postpone it; there are various things you
9
could do on this.
10
I had written you a letter recently, I
11
think it was on April lst, saying that
12
although it's an agenda item tomorrow, I would
13
request that you not vote on it tomorrow, from
14
a procedural standpoint. Margaret Cooper has
15
told us that she is in trial and cannot come
16
tomorrow.
17
Now, our position is that the public
18
hearing is over, and we are not going to
19
reopen the public hearing for anybody. My
20
concern is that -- as I said in the letter --
21
I don't want her to be able to go to
22
Judge Brunson and say, "Well, they didn't even
23
have a meeting when I could be here when they
24
were voting on it."
25
I think it's somewhat of a spurious thing
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by her, because she has had her shot at the
2
public hearing, and as much as we can, I would
3
like to accommodate her, and so that she will
4
be here when you actually take the vote on it.
5
I have called her office and talked to
6
her and I have said that "We're going to try
7
to accommodate you, but we need to know your
8
availability, as the Town commissioners have
9
their own schedules, and obviously, the Town
10
would like to have a full commission here
11
whenever the Town votes on it."
12
Again, it was because what we have tried
13
to do in this case is to wear the white hat,
14
which is the judge, not to be labeled the bad
15
party, as I think we were labeled the bad
16
party in the RTC case. And so that's all part
17
of what I consider the overall strategy.
18
I'm going to ask Larry to chime in now
19
with the comments that he has.
20
MR. CORMAN: Okay. As Tom stated, our
21
basic purpose here today is to make sure that
22
the Commission is aware of where the case is
23
posed, make sure that the settlement proposal
24
is fully understood, discuss what the various
25
options regarding responding to the settlement
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proposal, and if we don't settle, proceeding
2
with the litigation.
3
One of the key things to remember about
4
litigation is that nobody has a crystal ball
5
in terms of what the outcome of any given case
6
will be.
7
One thing that's particularly important
8
to recognize in the context of zoning is that
9
the case law regarding zoning issue and
10
government takings of private property owner
11
rights has been evolving, as in many other
12
areas of the law, over the course of time.
13
And the standards that get applied by the
14
courts change as pronouncements come down from
15
either the State or the Federal Supreme Court
16
regarding what circumstances property owners
17
are or are not entitled to obtain compensation
18
from governmental entities when the government
19
makes decisions that impact on their right to
20
use and develop their property.
21
So you just need to recognize that
22
whatever the case law is today may not be what
23
the case law is in six months or a year. The
24
composition of both the Federal and the State
25
Supreme Court changes from time to time, and
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as different justices come onto the bench, the
2
analyses of different legal issues change, and
3
that could result in the playing field
4
changing.
5
Unfortunately, for people such as
6
yourselves who have to make decisions, the
7
bottom line is that you end up with a certain
8
degree of uncertainty regarding where the law
9
is going to end up at any particular given
10
point in time.
11
So just keep in mind that no lawyer can
12
guarantee any particular result in any
13
particular case, and there are lots of things
14
that can impact on how a lawsuit ultimately
15
gets resolved.
16
We can talk all we want about the fact
17
I18
that we don't have any information sitting
here today that either would or would not
19
support a claim of vested rights by Hoffman,
20
but the reality is until you pursue discovery
21
and you get all the financial information
22
reflecting investments that they may have made
23
or may claim that they made in connection with
24
this property, we don't really know what
25
expenditures, if any, have been made by them
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in connection with their development.
2
As to the statute of limitations issue,
3
basically the concept -- very briefly -- of
4
vested rights is that if the government has
5
zoned a piece of property in a particular way,
6
and the property owner, relying on that
7
zoning, makes significant investments to
8
develop the property consistent with that
9
zoning, and the government then changes the
10
zoning after the investment's been made by the
11
property owner, the property owner, in some
12
situations, can go to court and say, "The
13
government doesn't have the right to change
14
this zoning. I was engaging in construction
15
activities based on the prior zoning; and
16
having made these substantial financial
17
investments, the government should not be
18
allowed to change the playing field."
19
That's what confronted the Town in the
20
RTC case, and as Margaret Cooper accurately
21
pointed out at the public hearing, the Town
22
Commission changed, the zoning was changed,
23
and litigation ensued, and a very significant
24
judgement was returned by a federal district
25
court jury against the Town.
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1 Subsequently, facing a very substantial
2 judgement, which was initially affirmed by the
3 11th Circuit on appeal, the Town moved for a
4 rehearing, and requested that instead of a
5 three-judge panel, that the entire panel of
6 the 11th Circuit hear the case.
7 While that was pending, fortunately for
8 the Town, the RTC had taken over the savings
9 and loan association, and it essentially
10 inherited the developers rights and lawsuit.
11 The RTC negotiated a resolution for the
12 Town, and frankly, had it not been a
13 governmental entity negotiation with another
14
governmental entity,
we don't
know
that such a
15
favorable result --
if you can
call
owing $5
16 million a favorable result -- we don't know
17
that such
a favorable result
would have
been
18
attainable
had the property
not already
-- had
19
the property
not been
in government hands
as
20
compared to a
private
individual, who may
have
21 pressed harder on the advantages that they had
22 at that point in the legal proceedings.
23
So
what the
Town ended
up with,
instead
24
of the
original
development
that had
been
25 proposed for the property, was the expanded
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1 development, which
I think many
people would
2 say is denser than
the project
you otherwise
3 would have ended up
with, plus
a $5 million
4 liability.
5 So that's the risk, that's the downside
6
of not settling. If they're successful,
7
rather than getting the 90 -plus unit
8
development that they're seeking through this
9
settlement process, if they're successful,
10
they could get the 138 units that they
11
originally requested, and this risk that there
12
could be a money damage award on top of that.
13
So that's the downside. And we can talk
14
about how the likelihood of them being
15
successful is relatively remote; if that
16
remote possibility rears its ugly head and
17
comes to fruition, the Town could be
18 confronted with a construction and financial
19 obligation that will be significantly worse
20 than the situation that's been proposed by
21 Hoffman and through her representatives.
22
Of course, on
the
plus side, if we're
23
successful, there's
no
damage award to them;
24
obviously,
the
Town will invest money in legal
25
fees that
will
not be ultimately recoverable
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1 from them, and you'll end up with a much less
2 dense project than we would have if we accept
3 their settlement proposal.
4 So those are basically the pros and the
5 cons of settling or not settling, and the
6 risks that the Town would have.
7 Now, based on the claims that have been
8 presented at
this point
in
the case, we don't
9 have reason
to believe
that
they have a
10 significant vested rights argument, and we
11 think the statute of limitations is going to
12 be very significant for them, primarily
13 because when the zoning ordinance was
14 previously changed, they actually commenced
15 litigation against the Town, and they've had a
16 separate lawsuit that was going on in state
17 court, as compared to federal court.
18 When the RTC case was on its verge of
19
going to
trial,
they filed a motion
to
20
intervene
in a
federal action, and
a federal
21
judged ruled
-- and you know,
we're not inside
22
the federal
judge's head, so
we only know what
23
he ruled and
what reasons was
placed in his
24
order
denying the
motion
to
intervene;
but
25
they
were getting
closer
to
trial, he
may not
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have wanted to disrupt the trial and the
2
discovery schedule by allowing another party
3
in.
4
I'm certain that there were arguments
5
regarding that the proof as to the vesting
6
rights issue was going to be different for the
7
two separate parties. But the bottom line is
8
the Hoffman group was told that they couldn't
9
get involved in the RTC lawsuit.
10
Rather than continuing to pursue their
11
case in state court, they took a voluntarily
12
dismissal, and certainly the position of the
13
Town today would be, if we fight on the
14
limitations issue, was that they were on full
15
notice as to the change in the ordinance and
16
the impact that it was going to have on their
17
development rights, as reflected by the fact
18
that they actually filed a lawsuit over it.
19
Then they took a voluntarily dismissal,
20
choosing -- we will argue -- to abandon their
21
rights, rather than to continue to pursue them
22
in state court.
23
Then we will argue that having clearly
24
been on notice to the change in the ordinance
25
and the impact on their alleged rights, they
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1 should now be barred by the passage of time
2 from asserting that claim any further.
3 Sitting here today, I believe that's
4 probably a very viable defense for the Town to
5 assert, and there would be certainly good
6 reason to be very optimistic that that defense
7 would be successful.
8 So
maybe
you're
the
thinking,
well,
that
9 should
be the
end
of
the ball
game.
Lawyers,
10 by nature, tend to be creative and stubborn
11 creatures who don't easily give up,
12 particularly when their clients are at risk of
13 losing substantial sums of potential property.
14 You can probably do a calculation as to
15 the amount of money that the developer stands
16 to lose if he can only go with the 40 -plus
17 units as compared to 90 -plus units. There's a
18 lot of money at stake for the developer.
19 So our guess is that even if we're
20 successful on this limitations versus vested
21 rights issue, that it's probably unrealistic
22 to assume that the developer will then give up
23 and just go away.
24
So
one of
the
things
I've
been
doing for
25
the last
couple
of
weeks
is
trying
to think of
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other legal theories, and that, frankly, is
2
one of the reasons why I'm glad we're in a
3
private session, so the public and therefore
4
the developer's representatives don't get to
5
hear our thoughts.
6
But I do want you to be aware of some
7
legal theories that if I was representing the
8
developer, I would assert on the developer's
9
behalf.
10
Probably the most significant of those
11
potential claims -- and in informal
12
communication, Marge Cooper has let us know --
13
that if the limitations issue and the vested
14
right issues fail, she's not going to just
15
take her marbles and go home, but she's going
16
to try to come up with some other legal
17
theories to attack the Town.
18
The legal theory I would assert if I was
19
representing the developer is that there's
20
been so much high-rise development in the
21
Town, that to try to assert these limitations
22
at this point in time essentially constitutes
23
spot zoning.
24
Basically, there's a legal concept in
25
Florida law and other state zoning law that
...........................................
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says if you have a zoning scheme and
2
circumstances evolve such that the zoning
3
scheme no longer makes any logical sense, it
4
can become unequitable for a municipality or
5
other governmental entity to continue to try
6
to enforce the zoning scheme as to a private
7
property owner of the fair use of their
8
property.
9
Unfortunately, as in many areas of the
10
law, it's not like there's some bright line
11
where you are foretold by these cases of any
12
degree of certainty what is and what is not
13
spot zoning and when spot zoning is applicable
14
and when it's not.
15
The basic theory in which this type of
16
case often comes up are situations where a
17
place has been zoned residential and there's
18
been creeping commercial development along a
19
piece of property, and soon the only piece of
20
residential property that's left in a
21
particular street or block becomes a couple of
22
lots and everything else has become
23
commercial, often retail or office space.
24
Then the residential property owner,
25
wanting to maximize the value of his property,
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will come to the municipality and say, "Look,
2
everybody surrounding me is commercial. It's
3
not fair for you to continue to insist that I
4
should be residential, when you've allowed
5
this other development to occur, and you're
6
basically depriving me of the fair use of my
7
property."
8
There have been cases in which Florida
9
courts have found that the creeping
10
development of a commercial nature has
11
resulted in the continued enforcement of a
12
residential zoning scheme as being unequitable
13
and improper; and in those cases, some
14
governmental entities have been told they need
15
to allow the commercial development, because
16
it's more consistent with what's been going
17
on, than trying to stick to your historic
18
zoning scheme.
19
Now driving up here, I was kind of taking
20
a look at what the surrounding property looks
21
like, and frankly, we have some pluses in the
22
sense that most of the stuff on the ocean
23
side, and certainly south of Town Hall, is
24
single- family, and there's a fair amount of
25
single- family home type developments to the
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is
1
south, even on the east side.
2
I really didn't see a lot of high-rise
3
development. There's a high-rise at Regency,
4
but there's also low-level housing there as
5
well.
6
So I'm not saying that they're going to
7
assert this, and I'm not saying that if they
8
did assert it, they would be successful, but
9
what I want everyone to understand is even if
10
we're successful asserting no vested rights,
11
the statute of limitations is applicable, it
12
doesn't necessarily mean that the litigation
13
ball game is over, because my belief is that
14
they will come up with some additional legal
15
theories to try to continue to pursue this
16
claim.
17
That's really all I have, in terms of
18
where the case stands, what the issues are
19
today, what the issues may be down the road.
20
Certainly, we're happy to discuss anything
21
that the Commission would like to discuss
22
regarding settlement possibilities.
23
As Tom pointed out, during the public
24
hearing, the settlement proposal that had been
25
made is not Tom's or my settlement proposal,
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it's only the fruits of a mediation process
2
that involved the other adjacent property
3
owners.
4
Essentially, it's the most concessions
5
that we've been able to drag out of the
6
developer, at least at this point in time,
7
through the mediation process.
8
We're not here recommending settlement;
9
we're not here not recommending settlement.
10
We're here to present your options, let you
11
know what the pros and cons of settlement
12
might be, let you have some appreciation for
13
the risks and costs of litigation, and then
14
our job is to implement the will of the
15
Commission.
16
As Tom said, we're not going to find out
17
what that will is today, but we're here to
18
make sure that you have the information that
19
you need to make sure that you cast your vote
20
in an appropriate and fully informed context.
21
MR. SLINEY: I think Larry and I are done
22
and we're open to whatever you wish to ask.
23
MR. ASSELTA: Why wasn't the land and
24
related costs from running taxes and legal
25
actions previously taken when constituting
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this one?
2
MR. CORMAN: Well, I'm sure they're going
3
to assert that it does. But the case law
4
seems to suggest that you need to go beyond
5
that -- that you need to have plans drawn up,
6
frequently, ground will actually have been
7
broken, permits often will have issued --
8
there are usually significant steps that a
9
developer can show have been taken for the
10
vested rights to accrue.
11
Now having said that, we don't know with
12
any certainty sitting here today what the
13
Hoffman group is going to claim was expended,
14
quote, unquote, "relying on the prior zoning
15
that the Town had."
16
Obviously, those investments are all
17
going to be prior to the change in the zoning,
18
and so it's going to be going back quite a
19
ways. They certainly can't claim that what
20
they've been doing since the change in zoning
21
has been reliant on old zoning, because the
22
old zoning hasn't been in place and they've
23
been on notice about that.
24
And I believe we had, as part of our
25
abatement, an agreement with them that any
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expenditures that they made in connection with
2
trying to settle the case could not be relied
3
upon then as proof of additional investments
4
to try to bootstrap themselves into an
5
investment argument.
6
MR. SLINEY: Larry's correct on that.
7
One of the things I think is different between
8
this and the other cases, when we were in
9
Federal Court on the RTC case, we had a
10
problem of really not only a runaway jury but
11
kind of a runaway judge.
12
One of the conclusions that was reached
13
in the case, which is factually erroneous, is
14
that for a period of time the Town had no
15
zoning on the property. That is not true, and
16
I think that they will have a hard time
17
replicating that if we go to trial here.
18
We have always acknowledged that the
19
parties could come in tomorrow with a site
20
plan for 42 units and build the property.
21
There's been no allegations that they couldn't
22
do otherwise if they had a viable site plan.
23
That all relates to what I guess the
24
level of damage is, but I think they would
25
have a hard time, I think, hopefully getting a
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judge and jury to be different than the
2
runaway jury that we encountered in Dade
3
County.
4
MR. REID: Commissioner Zwick?
5
MS. ZWICK: I have one question, but it
6
might be repetitious. Looking at it from the
7
point of view of the Hoffman property owners,
8
if they were to avail -- if we went and
9
refused this settlement and just said no to
10
the settlement without any further attempts at
11
mitigating the circumstances or changing the
12
settlement in some degree, but just working
13
with it as it stands and what was presented to
14
us, the end result of their winning the case,
15
of their approval by a judge, a jury, would it
16
then entail that they could be allowed to go
17
back to the 138 units under the RPUD?
18
MR. SLINEY: Well, I'm sure that is what
19
they would ask for. That's the issues of kind
20
of like the runaway issue in Dade County.
21
Certainly, if this litigation -- they can
22
do two things. Let's say that,
23
hypothetically, the Town says, "We reject your
24
proposal." We have existing litigation there;
25
they're got an existing counterclaim. And we
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have an existing dec action, which basically
2
asks the court to determine the zoning of the
3
property, and it takes the Town position from
4
the very get -go that it was 6 units an acre,
5
or 42 units, 35 feet, and no ACLF.
6
Okay. They can either litigate those
7
issues or fold their tent. Now, remember one
8
of the things in zoning cases is circumstances
9
change as time goes on. Mr. Siemens was not
10
here the other night. Ms. Cooper represented
11
to me that he is still ill and did not feel he
12
could stand the stress of the meeting.
13
Ms. Hoffman, who I know personally
14
through many, many years, is going on and
15
getting on in years; I would imagine she is in
16
her eighties, maybe 85.
17
Sometimes the cases resolve themselves in
18
manners that you don't expect. For example,
19
one that you've probably very familiar with is
20
the Boca High RPUD. Originally, there was
21
going to be two more high-rises there on the
22
DUT sites.
23
Fortunately, the matter got dragged out
24
so long, the circumstances changed; the
25
developer decided to not fight anymore. As a
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result of that, we have an entirely different
2
development down there than you would have had
3
with the two high-rises.
4
So she would have to make an economic
5
decision, if the Town turns her down, as to
6
whether she wants to at this point in time go
7
full -bore, which she may well, or there's a
8
possibility the property could get sold, or
9
she could find another joint venturer.
10
I don't know whether Mr. Siemens is going
11
to be available to be her joint venturer,
12
which I understand he was more or less
13
historically her joint venture partner. It's
14
my understanding that they joint -ventured
15
Harbor's Edge up in Delray, for example.
16
Time often changes things; but if the
17
Town says no to the project, and unless she
18
decides to fold her tent, we would go ahead
19
with the existing litigation, or I guess she
20
could try to file some other action, I don't
21
know.
22 MS. ZWICK: Just one further question:
23 Again, looking at the all the possibilities
24 that might occur, if she is to prevail, if
25 Mr. Corman's presentation goes down with a
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judge like we had before with the RTC, would
2
they also sue for damages besides --
3
MR. SLINEY: Well, is in the existing dec
4
action, there is an existing counterclaim,
5
which the counterclaim, as Larry basically
6
stated, we have put all the litigation in
7
advance so that nobody's legal fees are run up
8
inordinately until there's been a decision on
9
this.
10
Once a decision is made -- and then this
11
is hypothetically assuming that the
12
proposition is rejected -- then one of the
13
parties would give notice to the court that
14
the sort of mediation or settlement period is
15
over, and that the other parties to the
16
litigation would have, I believe, 20 days to
17
make responses. So that's how that would go.
18
MS. ZWICK: Thank you.
19
MR. REID: Commissioner Scala-Pistone?
20
MS. SCALA-PISTONE: Well, I'd like to
21
have the dates that she's been here,
22
Ms. Cooper.
23
MR. SLINEY: I don't have them yet. I
24
called her today and said, "Please give me
25
some dates," and I asked her to just fax me,
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1 and I haven't gotten those
yet.
2 MS.
SCALA-PISTONE: You know, I, for one,
3 am very
disappointed about
that; that she
4 doesn't
have any dates and
that --
5 MR.
SLINEY: She's in
trial. I recognize
6 that.
14
afternoon, and I said, "Please give me your
7
MS. SCALA-PISTONE: It's known that we
8
were planning to make those decisions, but --
9
MR. SLINEY: And I -- obviously the -- I
10
didn't see the -- my reasoning in my letter is
11
to try to give her the benefit of the doubt,
12
but I realize you -all have your schedules too.
13
I've told her we have a meeting tomorrow
14
afternoon, and I said, "Please give me your
15
schedule by tomorrow morning, so I will know
16
before I go to tomorrow's Commission meeting."
17
I had talked to her about quarter to twelve
18
today.
19
MS. SCALA-PISTONE: Now, again, I feel
20
very disenchanted by her reluctance to get a
21
firm date. As you said, we do have our own
22
schedules.
23 MR. SLINEY: Right. Everybody has -- we
24 run a full Commission, obviously.
25 MS. SCALA-PISTONE: I have a very
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1 important schedule this month and the
2 following months, because my two children are
3 expecting -- momentarily. I mean, I could
4 be --
5 MR. SLINEY: No, I explained that to her.
6 I said, you know, the commissioners have their
7 own issues, so --
8 MS. SCALA-PISTONE: Um-hmm. In lieu of
9 -- I mean, in deference to the fact that our
10 residents have spent almost two -and -a -half
11 years on this, trying to get schedules of open
12 meetings, public meetings and cancellations,
13 and the fact that they all took the time to
14 come last week to speak at this meeting, and
15 have signed petitions about their opinion
16 on --
17 MR. SLINEY: I'm in agreement with you.
18 I agree with you.
19 MS. SCALA-PISTONE: I mean, who are we
20 representing here? Aren't --
121 MR. SLINEY: No, it's not a matter --
22 it's just --
23 MS. SCALA-PISTONE: Are you representing
24 us?
I25 MR. SLINEY: We're not a matter of -- no,
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it's a matter of strategy, and my strategy --
2
MS. SCALA-PISTONE: But that's --
3
MR. SLINEY: My strategy with the court
4
is to try to win the fight. You can vote at
5
any time; whether you vote today or two weeks
6
from now, I doubt that you vote would be any
7
different.
8
MS. SCALA-PISTONE: No, but Tom -- and
9
not to interrupt you here but --
10
MR. SLINEY: Sure.
11
MS. SCALA-PISTONE: -- we do have a
12
responsibility to the people of this Town.
13
I'm sure that they want to know our answer as
14
soon as possible. I mean, they did seek --
15
they did sign petitions, they did give us all
16
sorts of clues and some signs as to what their
17
position is and how strongly they feel.
18
MR. SLINEY: I don't disagree with you.
19
I'm basically saying, as your counsel, and
20
just trying to look out for the Town's best
21
interest, that if we could accommodate that, I
22
would prefer to do it, so that she can't go to
23
the court and say, "Well, they wouldn't even
24
let me be -- they scheduled something when I
25
couldn't come." I just --
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MS. SCALA-PISTONE: But we did
2
originally --
3
MR. SLINEY: But we can't just --
4
MS. SCALA-PISTONE: -- schedule it for
5
Tuesday -- tomorrow -- so she can't make that
6
claim; can she?
7
MR. SLINEY: Well --
8
MS. SCALA-PISTONE: She did know.
9
MR. CORMAN: -- see, the thing is, people
10
can make any claim in court --
11
MS. SCALA-PISTONE: Yes.
12
MR. CORMAN: -- and there's concept
13
called procedural due process.
14
MS. SCALA-PISTONE: Um-hmm.
15
MR. CORMAN: That means the developer
16
will claim that we deprived him of a fair
17
hearing to have his petition heard.
18
Our recommendation is: Don't create an
19
issue for the developer; allow them whatever
20
opportunities they want to speak. We've heard
21
the public, we know how they feel; the
22
commissioners will have their opportunity to
23
vote. Then she has nothing to go to court
24
with regarding the procedural due process.
25
Or we can schedule a vote when she's not
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available, and hand her an issue. And whether
2
it's successful or not, the lawyers are going
3
to have to spend time and the Town to spend
4
money rebutting whether or not she got
5
procedural due process.
6
So our attitude and our recommendation is
7
don't go giving the developer issues
8
unnecessarily. It doesn't really matter if we
9
vote to reject this or approve it next week or
10
in a month, as long as it's in abeyance,
11
nothing is being developed by the property.
12
In fact, the property's been in a natural
13
state for four years, and we suggest that
14
that's more advantageous to the residents than
15
whatever is ultimately going to be constructed
16
on that site.
17
The longer it's green space, all the
18
traffic concerns, all the density concerns are
19
on hold. Nothing's happening; there's no one
20
moving there. What better circumstances could
21
possibly exist?
22
Plus they can't claim damages during this
23
time period, because they've agreed to the
24
events. So every day that goes by, from my
25
perspective, is a plus to the residents,
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because not only don't we have 90 units, we've
2
got zero units. So it's a plus. Just think,
3
four years, everybody's had the benefit of
4
green space there.
5
MS. SCALA-PISTONE: No. That isn't the
6
point, Larry. I think the point is which they
7
do own the property and we are permitting them
8
to build, and they can build on our terms --
9
MR. CORMAN: Well, they --
10
MS. SCALA-PISTONE: -- with our density
11
and our height.
12
MR. CORMAN: Well, they --
13
MS. SCALA-PISTONE: And the people of the
14
Town of Highland Beach who came clearly stated
15
that, that they're -- you know, go to court,
16
take these people to court if they don't want
17
us -- to adhere to our zoning laws and
18
comprehensive planning, et cetera.
19
MR. CORMAN: Well, we were here when the
20
public wanted -- they quoted RTC, also --
21
MS. SCALA-PISTONE: Well, I don't
22
understand why it's also --
23
MR. CORMAN: With all due respect,
24
Commissioner, the public wanted to go to court
25
with RTC, and that ultimately didn't work out
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for the Town, and now we have a project that,
2
frankly, is less desirable than what could
3
have happened.
4
So our recommendation is: Proceed
5
cautiously and wisely, and don't give the
6
developer issues without legitimate reasons,
7
from a legal perspective, for doing that.
8
The developer's attorney has told us she
9
can't be at the hearing; she wants to be at
10
the hearing. Whether or not she has a right
11
to be at the hearing I'd rather not have a
12
judge decide.
13
The easiest thing to do -- and of course
14
it's no time to the Town residents; in fact,
15
they get the continued benefit of open green
16
space -- is to schedule it when the
17
developer's attorney is available, have the
18
meeting, vote accordingly to your conscience
19
and the recommendations of your counsel, and
20
the desires of the public, whatever you deem
21
should be the key motivating factors, and then
22
we'll be able to move on and not give them a
23
procedural due process issue.
24
Now, I have clients that don't listen to
25
my advice all the time; sometimes it works out
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for them and sometimes it doesn't.
2
The Commission is free if -- it's on
3
their agenda tomorrow - if the Commission
4
wants to vote tomorrow when Marge Cooper won't
5
be present, the Commission can do that. Your
6
legal counsel is saying don't give her an
7
issue that there's no need to give her.
8
MS. SCALA-PISTONE: If we feel it
9
necessary to do this -- I mean, if our counsel
10
decides that we will vote tomorrow --
11
MR. CORMAN: Any commissioner can make a
12
motion, and if the other commissioners can
13
second it, you can have a vote.
14
MS. SCALA-PISTONE: Um-hmm. Okay.
15
Because I tend to just, you know, and that's
16
my opinion. I mean, I've been involved with
17
this for almost three years -- well, three
18
years -- it's come to three years already --
19
and that's not a lot of time, because I'm sure
20
that Tom and our Mayor, and Bob Lowe have been
21
involved -- each of them has been involved for
22
many more years; I don't know how many, but --
23
MR. CORMAN: Well, can I just say --
24
MS. SCALA-PISTONE: I just want, you know
25
-- all of our soldiers are setup -- or
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whatever mantra, however, you want to explain
2
it -- and I just feel this is the time.
3
We've heard the presentation and, you
4
know, we've had four delays and reschedulings,
5
and one was at our own rescheduling here at
6
Town Hall because we didn't have some sort of
7
a video coverage.
8
But you know, it's been a long time and
9
we have come to a conclusion here, especially
10
seeing this response; that so many people --
11
people that appeared the other day. You were
12
there and saw that they did have an interest,
13
and we are saying, as policy, that they're
14
really interested and they do show up.
15
MR. CORMAN: Well, I have no doubt that
16
the public is very interested in what happens
17
to this property. I guess my point is that
18
the public has been well served --
19
MS. SCALA -PISTONS: The public has
20
concerned me, because we represent the public,
21
the people, the citizens.
22
MR. CORMAN: We're representing the
23
entire town when we're in court, and our goal
24
is to make sure that the Town doesn't have to
25
pay a third party any money, and that the Town
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doesn't have a development that the Town
2
doesn't want. That's our only goal is to make
3
sure that's the result.
4
For the last four years, the Town has had
5
open green space instead of the development.
6
I think that's good for the Town and the
7
residents' advantage. If their concern is not
8
to have density, there's nothing less dense
9
than open green space.
10
The way which results in continuing open
11
green space for an additional duration of time
12
is to the benefit, in my opinion, of the Town.
13
Having said that, the Commission's free
14
to do whatever the Commission wants on this
15
issue at this time.
16
MS. SCALA-PISTONE: I'd like to talk
17
later, but I also do want to say one more
18
thing. Are you all aware of Judi Asselta's
19
presentation? How many of you --
20
MR. ASSELTA: It's a brief.
21
MS. SCALA-PISTONE: Oh, it's a brief,
22
Yes. Judi Asselta's brief.
23
I'd like to ask our attorneys what they
24
think about that. I haven't had the
25
opportunity to hear your responses about the
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brief that was submitted to you on the --
2
MR. CORMAN: Well, it was submitted to
3
the Commission and I did take a glance at it.
4
It accurately recites many of the facts that
5
are pertinent to the development.
6
However, as I joked with Mr. Rabideau
7
(phonetic) after the meeting, none of us get
8
to be the judge; there's a third party that
9
gets to be the judge, and the judge ultimately
10
is the -- and after the judge in the appellate
11
court -- would be the decider as to which
12
analysis is correct and which analysis is
13
incorrect.
14
I never take it upon myself to predict
15
what the outcome shall be of any given case,
16
because judges and juries vary; every judge
17
and every jury is different, and every fact
18
setting is different.
19
I know very few lawyers that will
20
accurately or competently predict results,
21
because anybody who's been to court knows
22
that, that you can't predict what the outcome
23
of a case is going to be, because you don't
24
know how witnesses are going to behave on the
25
stand. You don't know what evidence is
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necessarily going to come in, or what evidence
2
the court deems might or should come in.
3
At this point, we don't even know what
4
other legal theories the developer might
5
assert. So I'm just not conceited enough to
6
claim that I have a crystal ball and I can
7
guarantee an outcome for the Town.
8
I can tell you that the Town has some
9
very viable defenses for the legal theories
10
that have been asserted by the developer, but
11
I am not going to guarantee that the Town is
12
going to prevail.
13
MS. SCALA-PISTONE: I didn't ask for a
14
guarantee of anything. I just feel that, as
15
our attorney, you have to weigh all this
16
information -- get all these accurate --
17
MR. CORMAN: Right. And I --
18
MS. SCALA-PISTONE: -- and get cases that
19
can substantiate your --
20
MR. CORMAN: There are no cases in
21
Florida on statutes of limitations and zoning
22
situations like the one we're confronted with.
23
So don't --
24
MS. SCALA-PISTONE: No. I'm talking
25
about the particular brief that was given to
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1 all of us
from Judi Asselta --
7
2 MR.
CORMAN: Well, I don't remember --
3 MS.
SCALA-PISTONE: -- on the
law.
4 MR.
CORMAN: I don't remember
reading --
5 MS.
SCALA-PISTONE: -- of the
objection
6
from Toscana to --
7
MR. CORMAN: Excuse me?
8
MS. SCALA-PISTONE: Do you know of the
9
objection from Toscana?
10
MR. CORMAN: Yes.
11
MS. SCALA-PISTONE: Um-hmm.
12
MR. CORMAN: Well, Toscana's a party in
13
the lawsuit. They've asserted that they don't
14
want this development to the south of them.
15
My guess is the developer's going to
16
point to the Toscana development as a reason
17
why the zoning is being unfairly applied to
18
their plot of land, because the zoning is so
19
much more dense than what the town's willing
20
to let them do.
21
So Toscana, to me, is not a favorable
22
fact that they raised the spot zoning issue,
23
because the zoning is so much more intense.
24
MS. SCALA-PISTONE: But Hoffman, at the
25
RTC case, had -- Hoffman had no rights on
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that, that she can assert.
2
MR. CORMAN: That's -- just definition;
3
that's the rights.
4
MS. SCALA-PISTONE: Right. But I'm
5
talking about why -- why are you talking about
6
Toscana's not, you know, being --
7
MR. CORMAN: Toscana's a party in the
8
case because they're an adjacent property
9
owner. They objected to the application by
10
Hoffman. Their goal, frankly, was they want
11
unobstructed views for their unit overlooking
12
the Intracoastal.
13
MS. SCALA-PISTONE: Yes, um-hmm. I agree
14
with that.
15
MR. CORMAN: Right. That's what their
16
goal is. Their goal is to make sure that
17
their unit sales don't get adversely affected
18
by a large development going up immediately to
19
the south that will block the views partially
20
or in whole of being people that are buying
21
units in
Toscana.
22
If
I'm Hoffman,
I point to the Toscana
23
unit and
development
as proof that it's unfair
24
to hold
me to this more restrictive zoning
25
because
it's so much
more intense than what
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the Town will let me do.
2
I don't look at Toscana as being
3
particularly helpful to the Town in terms of
4
an overall case strategy. Their reasons for
5
opposing the development are not altruistic;
6
they're for financial gain -- which is fine;
7
we're in a capitalist system, there's nothing
8
wrong if people want to maximize their
9
property value.
10
But a judge and jury is not going to be
11
impressed that Toscana, having gotten to
12
develop all these units, doesn't want an
13
adjacent property owner to have equivalent
14
rights.
15
At the same time, Hoffman's lawyers are
16
likely to point to Toscana as an element of
17
proof as to why it's unfair for the Town to
18
try to stick the adjacent property owner with
19
much lower density, when this much more
20
intense project has gone up.
21
I'm not saying that's the main argument.
22
MR. ASSELTA: Excuse me. Are we
23
discussing the settlement and negotiation
24
strategy now, or are we trying to run the
25
case?
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1 MR. CORMAN: Well, we're discussing
2 likely issues to come up, which either suggest
3 settlement is or isn't appropriate.
4 MR. ASSELTA: Okay.
5
MR. CORMAN: No. I think we're safely
6
within the zone of what we're allowed to
7
discuss.
8
MR. ASSELTA: Okay.
9
MR. CORMAN: But my point is that the
10
developer will be able to point to certain
11
facts --
12
MS. SCALA-PISTONE: Wait a minute. Could
13
I just interject before I forget?
14
MR. CORMAN: Sure.
15
MS. SCALA-PISTONE: You'll remember
16
everything that I might not. Why I mentioned
17
the Toscana property and the judgement -- you
18
know, the actual settlement -- was to
19
differentiate, and by the law, which they do
20
themselves, that Hoffman had no rights under
21
this agreement.
22
MR. CORMAN: That's true.
23
MS. SCALA-PISTONE: And not only that,
24
but they clearly were excluded from --
25
MR. CORMAN: Yes. When we negotiated
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that, we
made sure it was in there.
2
MS.
SCALA-PISTONE:
So that's a given,
3
that's a
given. Toscana
is --
4
MR.
CORMAN: You're
not talking about the
5
agreement
is a given?
6
MS.
SCALA-PISTONE:
Huh-uh. And Toscana
7
went on and
built their
three buildings --
8
MR.
CORMAN: Yes, they
did.
9
MS.
SCALA-PISTONE:
-- because the judge
10
agreed with
there -- you
know, a judge agreed
11
they could
do it.
12
MR.
CORMAN: Well,
no --
13
MS.
SCALA-PISTONE:
And --
14
MR.
CORMAN: Well,
that's not quite
15
accurate.
The judge approved
the settlement
16
agreement
--
17
MS.
SCALA-PISTONE:
Yes.
18
MR.
CORMAN: -- between
the parties.
19
MS.
SCALA -PISTONS:
The judge approved
20 the settlement agreement.
21 MR. CORMAN: Judges will approve --
22 MS. SCALA-PISTONE: I'm not using the
23 right words, Larry.
24 MR. CORMAN: Unless it's a class action
25 lawsuit, judges will approve just about any
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1 settlement agreement that's presented to them
2 so they're done with it.
3 So you know, I don't think that they --
4 look, Hoffman cannot point to the settlement
5 agreement for anything. They're excluded from
6 the settlement agreement.
7 MS. SCALA-PISTONE: Exactly.
8 MR. CORMAN: It gives them no legal
9
document.
10
MS.
SCALA-PISTONE:
And it was not
11
enforced
and they did not
appeal the decision.
12
MR.
CORMAN: They
couldn't appeal the
13
decision.
14
MS.
SCALA-PISTONE:
They did not go to
15
court.
16
MR.
CORMAN: They
didn't go to court.
17
MS.
SCALA-PISTONE:
They did not go to
18
court; right?
Am I correct?
19
MR.
CORMAN: They
dismissed their rights.
20
MS.
SCALA-PISTONE:
Exactly. That is
21
where, you know, we would have had trouble if
22
they had
gone to court.
23
MR.
CORMAN: Well,
maybe yes and maybe
24
no; depending on what the
--
25
MS.
SCALA-PISTONE:
-- to respond to
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that. But it just seems to me that Hoffman,
2
if we can inject a declaratory judgement, so
3
that we were able to give them an alternate
4
door, which they didn't have in the court, and
5
they at this particular period of time are
6
using that ability, because we opened a door.
7
I'd like you to talk about that, because
8
I feel very strongly about us having to -- the
9
Town -- giving them this opportunity to bring
10
their case to court.
11
MR. CORMAN: Well, we didn't give them
12
any opportunity that didn't already exist.
13
They had the ability to file a lawsuit if they
14
were so inclined.
15
What we did do --
I16
MS. SCALA-PISTONE: But what I'm saying
17
is are we litigable, or colorable in this
18
case?
19
MR. CORMAN: They've got the same case --
20
MS. SCALA-PISTONE: -- counterclaim.
21
MR. CORMAN: -- whether it's a
22
counterclaim or an original lawsuit, they have
23
the same case. The case is the same --
24
MS. SCALA-PISTONE: Right.
25
MR. CORMAN: -- regardless of whether
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it's a counterclaim or an affirmative lawsuit.
2
What we did was we tried to preempt the damage
3
claim against the Town by asserting to the
4
court that because there was a conflicting
5
position being asserted by different property
6
owners, the Town is uncertain as to the
7
developer's right, and asked the court to
8
decide whether or not the developer had any
9
vested rights.
10
That avoided a damage claim so that if
11
the Town had just rejected the application and
12
asserted the benefit of the judicial input,
13
that they had no rights and that the Town was
14
wrong, then the Town can be exposed to
15
damages. Instead, we created a scenario where
16
the Town isn't exposed to damages -- and these
17
things you'll hear a lot about today --
18
because all we've asked the judge to do is
19
tell us which zoning is applicable.
20
MS. SCALA-PISTONE: You know, Larry, to
21
me -- I'm sorry that I feel this -- I mean,
22
that you feel this way, because to me -- it
23
seems to me like you're always protecting the
24
Town from -- I mean, we're creating a reason
25
to protect the Town instead of making a
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decision as to whether we have followed the
2
correct path -- legal path -- and then
3
standing with our petition. It seems to me
4
like you're in telling us, in essence, that
5
anybody can go, you know, anybody can go to
6
court. But --
7
MR. CORMAN: That's right.
8
MS. SCALA-PISTONE: -- it has to be a
9
colorable, litigable case; doesn't it?
10
MR. CORMAN: No.
11
MS. SCALA-PISTONE: It has to be -- I
12
mean, in order for the judge to deny it.
13
MR. CORMAN: If you're asking me if the
14
people are allowed to win frivolous lawsuits,
15
the answer's yes. People stage slip -and -falls
16
at McDonald's and get hundreds of thousands of
17
dollars for illegitimate claims.
18
So your premise that only colorable
19
claims get filed, in my opinion, is faulty.
20
People file lawsuits all the time; sometimes
21
they're meritorious, sometimes they're not.
22
If you're asking me can this developer assert
23
any potential claim against the Town that will
24
withstand a motion to dismiss, my answer to
25
you is yes.
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1 MS. SCALA-PISTONE: You're answer's yes?
2 MR. CORMAN: Yeah. I think they could
3 come with a -- first of all, they can assert
4 this claim on vested rights, and the only way
5 we're going to defeat it is by going through
6 the discovery process and filing a motion for
7 summary judgement, asserting either that they
8 lack vested rights or the limitation's period
9 is wrong.
10 We're going to have to have discovery
11 that favors very factually that
12 representations were made by representatives
13 of the Town upon which they were laws. Tom
14 and I don't believe that's a meritorious
15 claim, but it's in their lawsuit, and we can't
16
just
get rid
of it
just
by going to the court
17
and
saying, "Judge,
consuming and it's
this
isn't so."
18 We're going to have to prove the defense.
19 So we're going to have to engage in
20 interrogatories and depositions to flush out
21 the factual basis for their case, and assuming
22 they can't substantiate the allegations in
23
their complaint, we
can file a motion
for
24
summary judgement.
That's going to be
time -
25
consuming and it's
going to have some
expense
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1
appended to it.
2
In addition, if I was representing the
3
developer, I would assert the spot zoning
4
claim, and that's something we won't be able
5
to dispose of, in all likelihood, unless we
6
have an actual fraud.
7
We'll have our expert witnesses and
8
they'll have their expert witnesses as to the
9
conditions that exist in the Town, and a jury,
10
who probably knows nothing about zoning, or
11
the judge, depending on whether or not a jury
12
demand is made, will decide whether or not the
13
conditions in the Town are such that the Town
14
should be entitled to enforce its zoning code
15
against this property owner, or whether the
16
conditions have changed such that some other
17
result is appropriate.
18
Now, they haven't even asserted a
19
spot -zoning claim yet; I don't know that it's
20
going to be asserted. I'm assuming
21
Marge Cooper --
22
MS. SCALA-PISTONE: I believe within
23
Toscana's case it's spot -zoning, but --
24
MR. CORMAN: I don't believe so, but --
25
MS. SCALA-PISTONE: No?
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MR. CORMAN: -- it is purely a vested
2
rights issue. But my guess is, having heard
3
Marge Cooper promise us that even if we're
4
successful on the vested rights and the
5
statute of limitations issues that they're not
6
going to just go away, my guess is we're going
7
to see spot -zoning, or something similar to
8
spot -zoning, as a legal theory asserted by the
9
developer.
10
I'm not sitting here telling you that
11
we're going to lose that claim. I'm sure we
12
have a lot of viable defenses, and there's
13
lots of things that we and our experts will be
14
able to assert, including the observations I
15
made by driving here; that there's plenty of
16
low-level property which is going to make a
17
spot -zoning claim hard for them to win.
18
But if you're asking me if it's going to
19
be done in a few months, because what they're
20
saying isn't colorable, that's not the way the
21
legal system works, and it's going to be a lot
22
more than a few months before this thing is
23
resolved.
24
MS. SCALA-PISTONE: Um-hmm. Well, I, for
25
one, would take my chances in the court.
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1 MR. CORMAN: Well, and that --
2 MS. SCALA-PISTONE: That's how I feel.
3 MR. CORMAN: And that's the beauty of
4 this system is you will get to cast your own
5 vote.
6
MS. SCALA-PISTONE: I have to move to
7
something else. It seems strange to me, but
8
on our, privileged and confidential document,
9
May 3rd, 2002, I'd like to know why, Tom -- I
10
guess I'm speaking to you at this point -- why
11
-- this is your opinion letter, and gives an
12
opinion as to -- or a recommendation of how
13
the Town should go forward.
14
I'm very confused and very disappointed
15
that you took this position, and I --
16
MR. ASSELTA: I'm not aware of this. Can
17
I see what this says?
18
MS. SCALA-PISTONE: Oh, yes. I thought
19
that all of my colleagues would have it all --
20
they --
21
MR. SAAG: Well, of course, anything that
22
was confidential prior to the two people
23
coming on to the Commission --
24
MS. SCALA-PISTONE: But you've been on
25
the Commission for a while.
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MR. SAAG: They just got on --
2
MS. SCALA-PISTONE: Yes.
3
MS. ZWICK: We haven't seen that.
4
MR. SAAG: I don't --
5
MR. SLINEY: Well, let me -- while the
6
Vice Mayor and Commissioner Zwick will be
7
reading that -- that letter was a risk
8
management letter, and basically went through
9
and gave you what the background was, what the
10
issues were.
11
It basically said that if you want to
12
dispose of all of this, then you should take
13
the settlement offer that resolves the damage
14
issue, that resolves the zoning issue, etc.
15
That's a risk management letter.
16
You'll notice at the end of the letter, I
17
basically say that, as a caveat, this relates,
18
as a risk management, to prevent what happened
19
in the RTC case where you basically had a
20
runaway jury and a runaway judge.
21
So it's my obligation to basically give
22
you a risk management letter. Now obviously,
23
you've heard Larry and I say here today that
24
we've taken the issues that we think are the
25
most likely to cause trouble for the town --
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the vested rights issue,
statute
of
2
limitations and spot -zoning --
and tell you
3
that we feel that the Town has
a
viable
4
position in all of those
issues.
MS.
SCALA-PISTONE: Um-hmm.
5
MS. SCALA-PISTONE:
Okay.
But Tom, you
6
specifically recommended
that
we,
as a
7
Commission --
SLINEY: I agree with you. Okay?
22
MS.
8
MR. SLINEY: If you
want
--
24
9
MS. SCALA-PISTONE:
-- as
a
Commission,
10
agree --
11
MR. SLINEY: If you
want
to
do it as a
12
risk management --
13
MS.
SCALA-PISTONE: -- agree --
14
MR.
SLINEY: -- as a risk management
15
letter.
A risk management letter -- I did
16
state that; the letter speaks for itself.
17
MS.
SCALA-PISTONE: Um-hmm.
18
MR.
SLINEY: I agree with you.
19
MS.
SCALA-PISTONE: Oh, I just wanted you
20
to say.
21
MR.
SLINEY: I agree with you. Okay?
22
MS.
SCALA-PISTONE: Yes.
23
MR.
SLINEY: What I'm telling you is, if
24
you -- when I wrote that letter --
25
MS.
SCALA-PISTONE: Tom, you represent
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us.
You
know, we need legal
advice from you.
2
16
MR.
SLINEY: And we
can't
just --
3
19
MS.
SCALA-PISTONE:
You
are our counsel.
4
22
MR.
SLINEY: And we
can't
--
5
25
MS.
SCALA-PISTONE:
So
--
6
MR.
SLINEY: We have
to
give you not only
7
the
rosy
side of things;
we
have to give you
8
the
unrosy side.
9
MS.
SCALA-PISTONE:
But
why would any of
10
us
go beyond that, if you
say,
you know --
11
MR.
SLINEY: Because
--
actually, because
12 legal --
13
MS. SCALA-PISTONE: "I recommend that you
14
approve it."
15
MR. SLINEY: Because we don't -get a vote.
16
MS. SCALA-PISTONE: You know, we don't
17
want you to --
18
MR. SLINEY: You do this --
19
MS. SCALA-PISTONE: -- or we just have to
20
get additional information elsewhere, from
21
outside --
22
MR. SLINEY: No. You use your own
23
judgement. This is -- we're giving you --
24
that letter was from a legal perspective,
25
reviewing the legal perspective at the time,
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1 which was about two years ago.
2 MS. SCALA-PISTONE: Now, I'm totally
3 shocked by, you know, this, and I'm also
4 disappointed that you would even make a
5 statement like this, because there are many
6 avenues in which to go, and not just
7 immediately to -- and this was prior to our
8
meeting, to our --
9
MR. SLINEY: It was written almost two
10
years ago.
11
MS. SCALA-PISTONE: -- May 2002 meeting.
12
It was scheduled; we never seemed to have it.
13
MR. SLINEY: That was correct.
14
MS. SCALA-PISTONE: But you know, that
15
could have been 1, 2, 3 on it and we're ...
16
It's over; you know, we're accepting it and
17
whatever they say goes.
18
I mean, within the petition for
19
settlement, it was written -- it was -- these
20
terms that were put in with that -- the
21
statements that were put in with that
22
particular petition, or you know, approval for
23
petition of settlement, that we, you know, did
24
this -- or we should make decisions for the
25
best interest of the Town or the people.
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I didn't agree that this was -- would be
2
in the best interest of the Town and people.
3
The reason I -- that red flags were flying, in
4
my estimation, was this is a barrier island,
5
and this is a coastal area. This is an
6
important, very sacred, serious area that we
7
live in. We have two egress areas -- two
8
egress bridges that we share with two other
9
towns.
10
Why would anyone want to accept -- and
11
this was done, by the way, with Siemens giving
12
us a proposal for an assisted living facility;
13
this was at that time --
14
MR. SLINEY: I responded to your
15
question, and I also responded about a year
16
later and gave you -- you had to know not only
17
the rosy, because I understand your point of
18
view on the thing. There was a case in Monroe
19
County -- which I brought to the Town
20
Commission's attention about a year ago -- in
21
which Monroe County lost $6 million in a
22
similar thing.
23
Okay. It's a risk management situation.
24
If you wanted to dispose of all --
25
MS. SCALA-PISTONE: Risk management? I'm
Esquire Deposition Services (561) 659-4155
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1 talking about people's lives here.
2 MR. SLINEY: Now, at one time when I
3 wrote the letter --
4 MS. SCALA-PISTONE: People's lives are at
5
risk --
6
MR. SLINEY: I understand.
7
MS. SCALA-PISTONE: -- are at risk for
8
maybe an evacuation or a storm. Don't you
9
think?
10
MR. SLINEY: It's my obligation to give
11
you a risk management letter, and that's what
12
I did. As I said before, if you wanted to
13
dispose of all the issues, considering that
14
what happened with the other 17 acres would be
15
a possibility -- and as Larry said, we can't
16
guarantee the result -- that would have taken
17
care of it. Okay.
18
I specifically gave you -- when this
19
issue came up about a year ago, I presented to
20
you a copy of the Monroe County decision of $6
21
million where they lost that because of they
22
were denied the use of the property.
23
So, I can't always necessarily tell
24
clients what they want to hear. I give them
25
information that you as a governing body
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1
digest and make your own decisions, because
2
neither Larry nor I have a vote.
3
MS. SCALA-PISTONE: All right. Well, I'm
4
going to stop speaking for a few moments, and
5
let whoever -- Bob continue, with the --
6
MR. LOWE: I would vote for the --
7
MS. SCALA-PISTONE: -- the ability to
8
come back later.
9
MR. LOWE: I would vote for lunch, and
10
we'll take care of it. We've been sitting
11
here for an hour already, and I believe you've
12
used 25 minutes of that hour. Commissioner?
13
MS. SCALA-PISTONE: I thought we could
14
talk for as long as we wanted. That was the
15
statement --
16
MR. ASSELTA: We can talk all day long.
17
MS. SCALA-PISTONE: -- didn't he -- when
18
we first convened, without any risk?
19
MR. LOWE: Again, I think we've heard
20
from Ms. Cooper that no matter what, if we
21
vote it down, she's going to take a loss. So
22
that -- we already know that this is it. So I
23
mean, let's just forget about the RTC as to
24
what happened. I'd like to go back to the
25
RTC. The RTC, they had applied for a permit,
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1
and they changed that zoning after they had
2
applied for the permit. That was one of the
3
cases -- that's really one of the things that
4
gave the RTC the advantage.
5
Here there has not been any permits
6
applied for to build. So I mean, we have a
7
risk here. We have a risk we know of. We
8
don't know what they're going to show us or
9
what they're going to state, spot -zoning or
10
whatever.
11
You've given us your information as to,
12
yes, it's a possible reason we're going to go
13
to court, and I'm 99 percent sure we're going
14
to go to court.
15
The main thing is we wanted to talk about
16
what is our strategy and what -- and my
17
understanding is, do we announce -- do we vote
18
on it tomorrow, do we propose to postpone the
19
vote until some other future date.
20
Other than that, I know it's going to go
21
to court and I know -- that's my feelings --
22
so they can hear all the risk management and
23
so on and so forth. It's up to us to make our
24
decision whether we want to -- that when do we
25
want to go for it -- vote for or against.
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MR. REID: Wait a minute. I happen to be
2
the Chairman. Are you finished?
3
MR. LOWE: No, I didn't know that we were
4
going through the Chairman. I mean, I thought
5
we had an opportunity to speak all we want to
6
in an executive session.
7
MR. ASSELTA: As a matter of fact, I
8
agree with what you said. I was going to say,
9
whatever's happened in the past is done with.
10
You know and I know that we've agreed to
11
disagree, so let's put that behind the
12
procedures that existed before today.
13
What we do have, as Bob said, is a
14
settlement proposal and a strategy that we're
15
going to work off of.
16
Part of that strategy and part of the
17
response to the resolution -- and I have to
18
say this -- that I'm extremely disappointed in
19
you to say that you just glanced at that brief
20
that was prepared --
21
MR. CORMAN: Well, because then --
22
MR. ASSELTA: I'll tell you, there was
23
over 2,000 lawsuits of experience put into
24
that and I doubt you have that. So let's get
25
beyond that.
Esquire Deposition Services (561) 659-4155
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1
Strategy -wise --
2
MR. CORMAN: Well, I'm here now, and I've
3
been scheduled to do other things the last
4
couple of days.
5
MR. ASSELTA: All right.
6
MR. CORMAN: I'll look at it more
7
carefully.
8
MR. ASSELTA: One of the things that I do
9
know -- you know, I know you can't predict,
10
but one thing you can predict -- in a lawsuit
11
-- but one thing you can predict, and I --
12
that Highland Beach is easy; threaten a
13
lawsuit and they'll settle. And I'm telling
14
you that if we just keep settling, settling,
15
settling, you're going to keep getting
16
lawsuits and lawsuits and lawsuits.
17
The only way that'll be stopped -- but
18
I've already heard that there are people --
19
there are pieces of property, that there are
20
offers have been made to buy out condos, and
21
the whole purpose is, we'll just sue the Town;
22
we don't care what the zoning is.
23
That's the one reason that we've got to
24
take a stand, and I'm saying this to all my
25
co -Commission members here.
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MS. SCALA-PISTONE: I agree.
2
MR. ASSELTA: Now, as to the strategy, I
3
think that one of the things that you do, a
4
trial lawyer does, when he evaluates a case,
5
he puts percentages of possibility and
6
probabilities on it. We all know that the
7
fate -- we don't know how the case is going to
8
come out. But we do know that there's a 50
9
percent chance of winning, there's an 80
10
percent chance of winning, there's a 90
11
percent chance of winning, and those are what
12
I expected to hear, not that there's a chance
13
and we don't know what it is.
14
MR. CORMAN: Well, I think we have a very
15
strong case in the statute of limitations and
16
the vested rights issue.
17
MR. ASSELTA: Actually, you have a very
18
strong case on every issue.
19
MR. CORMAN: I don't know about
20
spot -zoning to tell you that's not a case as I
21
haven't seen an actual analysis on it.
22
MR. ASSELTA: Now, one of the things
23
about, that I -- you know, Tom and -- I
24
discussed this postponement, or adjournment,
25
with Tom, and I did say I wanted -- that
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before I'd agree to anything -- I wanted a
2
date certain, the date had to be in April, and
3
the date had to be one that every Commission
4
member could be present.
5
Now, she has her chance to give you that,
6
and I'm telling you, come tomorrow, if that is
7
not an acceptable position, that we all agreed
8
on a date -- and all of us have to agree --
9
I'm making a motion, and you can tell her
10
that.
11
MR. SLINEY: No, we -- you're right; we
12
discuss it lawyer -to -lawyer.
13
MR. ASSELTA: Right. But the point
14
being, "Okay. I understand your position. I
15
didn't want to put you in a bad position with
16
the judge." And I've got to agree with you.
17
I mean, I really don't agree, but I would
18
prefer to let you have that position.
19
But I -- she does not have any standing
20
at a meeting to vote. She had her standing,
21
and it was the other night, and the worst part
22
-- and the reason I'm so upset about it, she
23
was not truthful.
24
I was
just
going
through
my notes,
and
25
the point
that
she was
making,
she was
either
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1 faking the facts, misstating them, or
2 deliberately avoiding them. That, to me -- an
3 attorney that's like that -- somebody might
4 have made the comment, well, you're -- an
5 advocate puts his best position forward -- but
6 where I come from, a lawyer's position has to
7 be truthful.
8
You cannot make an argument -- like on
9
any subject; you can't make a closing
10
argument, you can't make an opening argument,
11
you can't make a presentation -- without it
12
being truthful. And if it's not truthful,
13
there are consequences.
14
Maybe they do it different here in the
15
State of Florida, but she was not truthful in
16
her presentation, and I'm very disappointed in
17
that. And that, I wanted to let the people
18
know, and we had -- well, fortunately, we did
19
have two people come up that did make a note
20
that first of all, her history of the
21
litigation is wrong, and good thing Rabideau
22
was there to correct that.
23
And if you read the brief that was
24
presented, we outlined every point that she
25
made in her counterclaim, and every point that
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she's made in the resolution for settlement
2
has been countered.
3
This is not something that -- all I can
4
say is it's not that close. I understand
5
risks, but these risks we're talking about are
6
a very small percent risk considering what we
7
have exposed to us. Exposed to us is many
8
more litigations like this if we cave in.
9
That's my position, and I'm really
10
disappointed that I don't have a date that we
11
can agree with, but if she doesn't have a
12
date, we're going to resolve this tomorrow.
13
Okay?
14
MR. SLINEY: Let me respond to a couple
15
of things, if I could.
16
One, the litigations in the history of
17
the Town have primarily been for down -zonings.
18
The history of the Town was basically the Town
19
filed to zone the property at 40 to 50 units.
20
Through the years, starting in the 1970s, the
21
Town down -zoned properties, which got the Town
22
and the property owners in a series of vested
23
rights arguments.
24
That's why you have all the zoning
25
litigation. If the Town had originally been
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zoned like Gulfstream or Ocean Ridge or one of
2
those towns, at low density, you wouldn't have
3
had that. That's number one.
4
Number two, the Town has been very
5
successful in a number of litigations that we
6
have done in the past. I just gave one to
7
Commissioner Zwick, who knows well about the
8
B&C sites; we completely won that one. They
9
tried to bust the zoning at Verda Beach and
10
put condominiums up in Verda Beach; we won
11
that one. They tried to put a high-rise up
12
where Ocean Place Estates is; we won that one.
13
So there's been a lot of successes, so I
14
didn't want to give you the idea that we
15
haven't been successful in certain.cases. But
16
it's been a conflict between the down -zoning
17
and what people felt were vested property
18
rights to spawn all the litigation.
19
I've heard the same rumors you have, that
20
so-and-so wants to buy a condominium on the
21
ocean and build 19 stories. Well, they don't
22
have any vested rights; it's not a vested
23
rights deal.
24
MR. ASSELTA: I aware.
25
MR. SLINEY: We're not down -zoning them.
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MR. ASSELTA: Wait. But I'm just saying
2
the soft atmosphere, the soft arena is choicy
3
to these buildings. Developers come in and
4
say, "Hey, look" --
5
MS. SCALA-PISTONE: A precedent.
6
MR. ASSELTA: I mean, look, they'll
7
settle, and we answer twice as much --
8
MR. SLINEY: But I would respectfully say
9
it's a different situation. But it's not a
10
matter of somebody coming in and buying it and
11
then we down -zone it on them. That was the
12
vested rights claim. If Mr. Jones goes ahead
13
and buys ABC Condominium, he's buying it and
14
it's not being down -zoned, he has no rights to
15
come in and ask for something past the zoning.
16
Okay?
17
MR. LOWE: I'd like to -- one thing. As
18
Joe said, I've heard the same thing. The
19
residents are saying, "We have to stand firm
20
on this -- on" --
21
MR. SLINEY: I'm not arguing that. I
22
just want to get it --
23
MR. LOWE: -- "that we had to make sure
24
that we're -- that residents and builders,
25
contractors and everything else, understand
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that there is our
zoning and this is what
2
we're going to live
to, and that's it." If --
3
court cases, well,
we'll have to go to court
4
and fight that.
5
MR. SLINEY:
And all I want to do is --
6
MR. LOWE: I
know that we have to make
7
the stand, go up
to someplace and say, "This
8
is it, and that's
that."
9
MS. SCALA-PISTONE:
Hallelujah, Bob.
10
MR. SLINEY:
But I wanted to give a
11
little history on
it, and I also wanted to say
12
that in addition
to Mr. Rabideau, I was one of
13
the speakers who
gave corrections to her
14
presentation, so
--
15
MR. REID: I
heard you.
16
MR. ASSELTA:
I mean, I know that, you
17
know that, and but...
My phone has been
18
ringing off the hook all morning. Now I don't
19
how this note of
yours to Ben got around, but
20
it certainly got
all over town.
21
MR. SLINEY:
Well, it shouldn't have.
22
MR. ASSELTA:
But it did.
23
MR. SLINEY:
That's what I had --
24
MR. ASSELTA:
I had at least 20 calls,
25
all of them saying, "What is this idea? What
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2
3
4
5
6
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is this idea? You're going to postpone the
vote?"
MR. SLINEY: Well, that's very disturbing
to me, because one of the things that I
hear --
MR. ASSELTA: I mean, of all people, our
--- who are Commission members --
MR. SLINEY: I have every right to do --
and I think it's important to communicate with
the Town, and basically say this is not to be
disclosed. So if somebody is passing this
around --
MR. ASSELTA: I'm just saying it came
back to -- and that's why I got all those
calls this morning.
MR. SLINEY: Well, that's disturbing to
me.
MR. ASSELTA:
MR. SLINEY:
communicate --
MR. ASSELTA:
It has to be.
I mean, how can I then
I don't know. No, I didn't
blame you.
MR. SLINEY: No, no. I'm saying --
MR. ASSELTA: No, I'm not blaming you.
I'm just --
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MR. SLINEY:
I appreciate --
I'm just
2
MR. ASSELTA:
What my point is --
3
MR. SLINEY:
I appreciate you letting
me
4
know that.
already
19
5
MR. ASSELTA:
-- that the people
that --
6
and I got calls,
and you can believe --
and
7
what they said weren't very kind, that
they --
8
MR. SLINEY:
But they just -- but
they
9
don't understand
the legal issue, and
you
10
understand the legal issue.
the Town, and I -- you
11
MR. ASSELTA:
I tried to explain
as best
12
I could. Okay?
13
MS. SCALA-PISTONE:
But they don't
have
14
to.
15
MR.
REID: Well, I mean, but --
I'm just
16
saying --
17
MS.
SCALA-PISTONE: They don't
want to
18
understand the legal issues. They've
already
19
directed
us in the legal vein.
20
MR.
REID: We're trying to --
21
MS.
SCALA-PISTONE: They said
they want
22
to go to
court.
23
MR.
SLINEY: Commissioner, we're
trying
24
to represent
the Town, and I -- you
know,
25
whether
you vote today or a week from
now
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isn't the issue. We are trying to put the
2
best foot forward vis-a-vis the Town and
3
Judge Brunson.
4
Now, I've been through umpteen zoning
5
hearings; I have some idea of how people come
6
to zoning hearings and what they want. People
7
are uniformly against this project. That's
8
fine.
9
One of the problems in the Town is, is
10
that, you know, people who live in existing
11
condominiums sometimes forget that other
12
people may have property rights. Those
13
property need to be adjudicated in the court,
14
not necessarily adjudicated by having a public
15
hearing. That's all we're trying to tell you.
16
MR. LOWE: I've thought of one other
17
thing. One of the things that -- and I'm
18
talking about strategy; this is what I feel is
19
very important is the wording of the motion
20
that's going to be made, whenever it's made,
21
on the vote, and I think we all know how it's
22
going to go -- the resolution that's going to
23
happen -- the wording is very important, so
24
that the judge will understand. I mentioned
25
to you earlier that I have a very good idea
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how the outline should be and I suggested that
2
you review with your -- the appellate section
3
of your firm -- because we want to make sure
4
we cover those factors that will stand out as
5
to why we're rejecting the settlement
6
proposal.
7
I think that would -- because that
8
becomes part of the record. If we go on --
9
that if -- we're talking about a judicial
10
process, and I think one of the things that
11
we'll do is we'll anticipate in the
12
resolution, or the motion.
13
What we were talking about -- I haven't
14
heard -- you know, I've gone through the
15
history and briefly given our reasons why we
16
should vote against it.
17
MR. SLINEY: Well, as you and I
18
discussed, I agree with you; I think that's
19
good advice. No question about that. And as
20
we discussed also, lawyer -to -lawyer,
21
procedural due process in the court --
22
MR. LOWE: Oh, yeah, I know.
23
MR. SLINEY: -- again, and so I agree
24
with that. That's something that --
25
MR. ASSELTA: But like I said, if she
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doesn't
have a date, she's blown her
2
position;
her right to procedural due process.
3
MR.
SLINEY: All right. Okay.
4
MR.
ASSELTA: Because you came and you
5
made the
offer; you may have said, "Give me a
6
date."
She knew we were going to have a
7
meeting
and you know she knows she'll never
8
get the
approval of the people. And I don't
9
know how
to vote. I have no idea. Maybe I'm
10
the only
one who will go along with you two
11
postponing.
Maybe the other four people want
12
to vote.
If there's a vote tomorrow, there's
13 a vote tomorrow.
14
MR. SLINEY: I hear you.
15
MS. ZWICK: One question please.
May I?
16
MR. REID: Yes.
17
MS. ZWICK: Did I understand you
18
correctly that she can't come back to
you like
19
12:00 tomorrow with a date?
20
MR. SLINEY: I told her I wanted
the
21
answer tomorrow morning because I had
the
22
Commission meeting tomorrow afternoon
--
23
MS. ZWICK: Okay.
24
MR. SLINEY: -- and I needed to
let
25
you -all know, because you -all have your
own
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schedules.
13
So that means that you'd have to call a
2
MS. ZWICK:
Yeah.
Okay.
3
MR. SLINEY:
So,
I mean, I want to be
4
fair; I can only
be so
fair, you know, with
5
her.
21
is small. And then we wanted it in April;
6
MS. ZWICK:
Yeah.
MR. REID: I was under the impression at
7
MR. LOWE:
I don't
know how the rest of
8
you people feel,
but I
-- with regards to this
9
-- the delaying
it, I
don't mind delaying it,
10
but I would rather
say
that it must be done
11
within the next
two weeks
if you're going to
12
postpone the vote.
13
So that means that you'd have to call a
14
special meeting and vote on it. I don't know
15
how the rest are, but I have no problem with
16
extending the time.
17
MR. ASSELTA: Now, as I had mentioned,
18
I'm out of town for seven days commencing
19
tomorrow night. You know, seven days. But
20
then, like I said -- and that's why the window
21
is small. And then we wanted it in April;
22
it's got to be in April, let's do it in April.
23
MR. REID: I was under the impression at
24
the next regular meeting is when the vote can
25
be taken, or that that was the date that was
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being offered to her to accept or reject. If
2
she rejects it, she's had it.
3
MR. LOWE: Which day is that?
4
MR. ASSELTA: That's tomorrow.
5
MS. SCALA-PISTONE: Tomorrow.
6
MR. REID: Next -- no. In May.
7
MS. SCALA-PISTONE: May. No, no. We
8
want to go that far.
9
MR. ASSELTA: It's got to be in April.
10
MR. SLINEY: We will -- First -- I
11
understand, because -- let me clarify what the
12
Mayor is saying because --
13
MS. SCALA-PISTONE: No.
14
MR. SLINEY: -- I'm not sure all of you
15
heard this at the end of the public hearing.
16
She came up to where we were sitting and
17
said she was in trial tomorrow and she was
18
suggesting that it be held over to the May
19
meeting. Okay. That's not what I'm
20
suggesting; that was her suggestion.
21
MR. REID: That's good.
22
MR. SLINEY: That's where the Mayor got
23
that from.
24
MR. REID: That's good. That's fine.
25
MS. SCALA-PISTONE: Yeah, the Mayor came
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1 to me and I said
no, I couldn't
do it then.
2 MR. SLINEY:
I understand,
but I'm saying
3 that that was her
response, and
I'm saying --
4 and I agree with
the rest of you
-- it needs
5 to be much sooner.
I agree.
16
6 MR. REID: But
I also said
every
7 condition has to
be first met.
19
8 MR. SLINEY:
That's true.
I agree with
9
it.
10
MR. LOWE: If you can't get a date,
11
then...
12
MR. SLINEY: All right.
13
MR. LOWE: But I feel that it definitely
14
should be done I April, and I think that the
15
sooner we can get it accomplished -- because
16
you said you were going out of town for like a
17
week?
18
MR. ASSELTA: Seven days, yeah.
19
MR. REID: You're going out, what?
20
MR. LOWE: So that means that we have
21
Another window of time. Another window there
22
of a week, sometime the following week, we
23
should have this --
24
MR. ASSELTA: Next week, it's Thursday
25
and Friday.
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MR. LOWE: I haven't got my calendar with
2
me, but I'm saying I think we have to get it
3
accomplished, and at least tomorrow at our
4
regular meeting, we should have -- everyone
5
should have their calendar and ask what's a
6
good date in April.
7
MS. SCALA-PISTONE: My daughter is
8
expecting a baby, my grandbaby.
9
MR. LOWE: There's only one guy who --
10
MS. SCALA-PISTONE: She's been trying for
11
eight years.
12
MR. LOWE: There's only one --
13
MS. SCALA-PISTONE: I want to be there
14
for her.
15
MR. LOWE: There's only one person who
16
can say about that.
17
MS. SCALA-PISTONE: And though that's
18
just the point. I mean, you know, I have
19
free time, and I abide by the laws and the
20
rules that we set down and all of a sudden, in
21
the blink of an eye, we change the rules. I
22
don't think that's right.
23
MR. REID: Somehow or another along the
24
line, I have to make a discernment between our
25
own attempts at adjudicating the matter at
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hand -- these fellows are our attorneys, and I
2
would be much more comfortable if in
3
exchanging views and ideas, one was not so
4
disappointed as to mention it, but rather to
5
speak and say, "This is what I believe, rather
6
than what you're saying."
7
My concern is that we drift away from the
8
fact that we have one legal counsel, and they
9
represent the Town at the behest of ourselves,
10
and that we will -- or have -- given them our
11
thoughts, and should it occur to us something
12
different later on, maybe a letter to'the
13
counsel would be helpful.
14
But I don't think we are going to succeed
15
if in fact we wind up with two legal
16
departments. We can't afford that; that, I
17
don't think is correct.
18
I always start from the point of view of
19
ownership. That seems to have been a problem
20
on occasion of understanding why certain
21
things happen. There is ownership here, no
22
different than I own my condominium or any of
23
us own our condominiums. And if I were to
24
come before the Board and ask for a certain
25
allowance or the humble begging of an
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extension, that if it's reasonable, I should
2
find no reason to reject it.
3
I don't think a month makes a difference,
4
but if it's two weeks, that's fine, too. I
5
constantly have the feeling that there's a
6
presumed way the vote is going to go, and I
7
think I agree with such -and -such, and that you
8
did not know who else was going to vote which
9
way.
10
But I have the intense feeling that
11
repeatedly it has been assumed that this would
12
be a negative vote. It may well be, but that,
13
I don't think, is an appropriate thing for us
14
to guess at right now.
15
The briefs that are submitted I think
16
should be submitted to the attorneys. Let
17
them make their abstracts of them, and what
18
they feel is useful is useful; what they feel
19
is not useful can be disregarded.
20
As to the correct path, I have no idea
21
what a correct path would be than if someone
22
walks into my office and says to me, "Do my
23
tax return," I don't even know what the man's
24
doing. I don't know if it's a proprietor,
25
corporate, partnership, I don't know if he's
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2 So then to
sit down beforehand
and say
3 what the path of
success is, is kind
of a bit
4 much. But what
I do -- and I think
is being
5 done -- is to view
all prospects of
it, all
6 the ideas. And
if someone puts something
7 before me that says,
"Well, this is
an idea of
8 risk management,
that if we do A, B
and C, you
9 can avoid D, E and F," I think that's a
10 perfectly legitimate piece of legal advice; I
11 have no trouble with it and I appreciate it,
12 that someone is willing to take the time and
13 sit down and say to me that "You're doing A
14 and B; maybe you ought to be doing C and D."
15 But to be disappointed -- to repeat that
16 thought -- I don't think that's something we
17 ought to get involved in. If I don't think
18 something's right, I'll either keep my mouth
19 shut, or I'll inquire why.
20 I was sitting here in the forum and the
21
two
attorneys were talking
to each other
and
22
for
about three minutes, I
didn't have a
clue
23 what was being said to each other.
24 But I assume that by virtue of the way
25 they ended the conversation, that between the
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two of them, they understood what was being
2
said legally. Since I'm not a lawyer, that's
3
my business. I don't want to go into the law
4
business; talk to me about taxes and I'll talk
5
to you.
6
Other than that, I think of the fact that
7
they are vested. I'd like to understand how
8
they can get past -- or not have some sort of
9
investment in this thing.
10
Spot -zoning sounds to me to be a real
11
serious problem; that they can get in on that
12
one. Probably with an attorney, and I think I
13
know the incentives rather well; I could argue
14
that one rather nicely.
15
We are involved. There's no way in the
16
world we can avoid involvement, and Miss -- I
17
think Mrs. Cooper is extremely sharp. She's a
18
very aggressive attorney; she's demonstrated
19
it before, and I'm certain she will
20
demonstrate it again. She may say and do
21
things that we don't care for as a Commission,
22
but I don't think that we should think of her
23
as being half-witted or stupid.
24
I think, in my opinion, that, having
25
discussed all the ideas that we have from a
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legal point of view, with the attorney here,
2
and obviously Commissioner Scala-Pistone has
3
had some legal assistance in the stuff that
4
she presents. But I would prefer for you
5
fellows to come up with the way, the approach
6
and the light of how we're going to present
7
ourselves.
8
Now, out of this, have I discerned -- or
9
do I discern -- a procedure that we're going
10
to follow in doing this, in going to court to
11
try to resolve this and come out with the best
12
deal we could have going to court?
13
MR. CORMAN: Well, the way things are
14
structured is, we either come -- well,
115
tomorrow, they're deciding the agenda, and the
16
Commission will vote either to delay the vote
17
or to have the vote tomorrow, as the
18
Commission deems fit.
19
If the settlement is rejected, my
20
speculative guess is that either the developer
21
will come up with another settlement proposal
122
-- which my guess is unlikely -- or they will
23
go to court and announce to the court that the
24
attempt at mediation has failed, and the
25
litigation will become reactivated.
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I want to point out that, as your
2
counsel, we'll have a lot more work to do, and
3
there'll be more expense for the Town and more
4
revenue for the firm if we litigate than if we
5
settle.
6
So it's certainly in my firm's interest
7
for you guys to want to fight. And if you
8
want to fight, I do promise you that we will
9
fight vigorously. As Tom has pointed out,
10
we've had a lot of success litigating for the
11
Town in the past. I think we have a very
12
strong position on the vested rights and
13
statute of limitation issues, based on what we
14
know sitting here today.
15
Case law on the statute of limitations is
16
nonexistent in our state regarding this vested
17
rights and zoning issue. I did take a quick
18
look at the brief that was presented to the
19
Commission and there aren't any case citations
20
in there to support the facts that are
21
asserted regarding the sequence of events that
22
transpired. There's not a section saying
23
given these facts, here's Florida Case Law
24
that says the Town wins hands down, slam dunk,
25
no need to worry.
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1 My
guess is that --
particularly if we
2 develop
in discovery that
the limitations
3 defense
will be viable --
and we'll have to
4 decide whether we want to proceed by asking
5 what lawyers call a request for admissions, or
6 if we want to issue interrogatories to take a
7 deposition or even ask the court to take a
8 position on a prior lawsuit, and then move for
9
summary
judgement on the limitations
issue.
10
At
that point, my guess is, if
the
11 developer's counsel believes that we're going
12 to be successful, they're going to have to
13 look at amending their counterclaim to assert
14 some other legal theory to enable them to stay
15 in court.
16 It's not impossible that if we reject the
17 settlement and we start pursuing the
18 limitations defense that they'll go away and
19 give up and agree to develop based on the
20 existing zoning.
21 My guess is that the developer is not
22 going to voluntarily walk away from earning
23 twice what they can on the project and twice
24 the density, and that they'll come up some
25 legal theory that's going to keep us in court.
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1 So, you know, my guess is that if the
2 proposal's rejected, litigation will become
3 activated for the first time, really, in a
4 serious way, and we will vigorously pursue
5 discovery on the Town's behalf, and get the
6 case properly framed so we can move for
7 summary judgement, and try to dispose of the
8 lawsuit, as is presently planned.
9 MR. REID: I think in specifics, numeric
10 specifics.
11
Now, if I was to say to you, "What is the
12
strategy in my business?" I would simply say,
13
"Well, how will I handle this item? Schedule
14
A, Schedule C." It's a factual answer.
15
You're saying to us that the strategy is to
16
walk through the meeting, yes or no; the
17
probability is it's going to be turned down.
18
MR. CORMAN: No, I'm not going to make
19
predictions on what the Commission's going to
20
do on that.
21
MR. REID: No -- no, no, no, no. I'm --
22
that's -- that was the type of words that you
23
used in legal terms, "possibility and suppose"
24
and the like --
25
MR. CORMAN: Sure.
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MR. REID: -- if it's turned down --
2
suppose it is. Then the next step is, in the
3
strategy sense, of almost waiting for them to
4
make a move.
5
MR. CORMAN: Not necessarily. We can
6
decide at that point that we're going to have
7
to litigate, and we can just, you know, notify
8
the court that the mediation is terminated,
9
because the way we structured this, any of the
10
parties in the case has the right to terminate
11
mediation by giving written notice to the
12
other parties.
13
So we would issue our written notice that
14
the settlement sessions are over. We would
15
then prepare discovery materials and get them
16
to admit that they previously filed another
17
lawsuit against the Town; get them to admit
18
that it was voluntarily dismissed without
19
prejudice; and then file a motion with the
20
court asserting that based on these dates,
21
their time to challenge the legal
22
effectiveness of the revised ordinance is
23
wrong. Keeping in mind that I don't have any
24
cases to cite to the court; we'll just be
25
relying on the plain language of the statute.
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1 Then the judge will decide either that based
2 on the plain language of the statute. It
3 won't be contested. I mean, they can't
4 contest that there was a prior lawsuit and
5 that they took a dismissal. So she'll decide
6 whether or not that by itself results in their
7 not having the ability to be in court on that.
8 MR. REID: So if there is a separate
9 fluidity in the legal --
10 MR. CORMAN: Yeah, I mean --
11
MR. REID: -- strategies --
12
MR. CORMAN: I have ideas in mind in
13
terms of how I would attempt to quickly
14
dispose of the case.
15
MR. REID: Thank you.
16
MS. SCALA-PISTONE: Okay.
17
MR. LOWE: I understand tomorrow we have
18
two options. We're either going to table the
19
vote to some other date, or we're going to
20
vote tomorrow.
21
MR. CORMAN: That's correct.
22
MR. REID: Can you have ready, as --
23
because Joe had mentioned before -- to have
24
the correct statement made and prepared, so
25
that when we do vote, if it's a vote negative,
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that we put the right words in place and have
2
that accomplished by before maybe tomorrow?
3
MR. CORMAN: Well, any commissioner that
4
wants assistance of counsel in framing the
5
proper motion can certainly contact us, and we
6
will be happy to assist them in framing an
7
appropriate motion consistent with whatever
8
motion they might want to bring before the
9
Commission.
10
I will, however, point out that today is
11
Passover, and I am having a Seder at my house
12
and I have to go pick up my 88 -year-old dad
13
and my son and I'm not going to be returning
14
to the office today.
15
Tom, I believe, will be available to work
16
with the Commission -- or commissioner, any
17
particular commissioner that might want to
18
call and request guidance on framing the
19
proper motion.
20
I am also not going to be available
21
tomorrow morning because I have meetings at
22
8:30 and 1:00, so basically you'll be relying
23
on Tom.
24
Tom, what's your schedule like? I mean,
25
can you accommodate any Commissioner or at
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least be able to get him some help?
2
MR. SLINEY: Of course.
3
MR. REID: This -- is this so complicated
4
that it couldn't be almost decided?
5
MR. SLINEY: No. It's good to -- it's
6
actually -- it can be decided. It's using
7
the --
8
MR. CORMAN: The strength -- the issue --
9
you take and you -- you take a proposal, and
10
you then say, "The reasons we're not settling
11
it is that" -- they made a statement that they
12
had invested a lot, but it was that -- well --
13
the position is not well taken. And you know,
14
she makes those statements in her settlement
15
proposal that there is liability on the part
16
of the Town; you reject those.
17
It's there, it's just a matter of your
18
putting it in order and --
19
MR. SLINEY: I'm available to discuss it
20
with anybody.
21
MS. SCALA-PISTONE: Speak there "whereas
22
ifs" that you talk.
23
MR. SLINEY: I'm good at the "whereas
24
ifs."
25
MS. SCALA-PISTONE: The "whereas ifs."
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You know, I mean, the --
2
MR. REID: Why is this law, then, a
3
simple vote, because you want to put on the
4
record our objections?
5
MR. SLINEY: Well, I think the Vice Mayor
6
has a good point. I think that, for the
7
record -- and everything in your zoning cases
8
is for the record -- if you want to have some
9
documentation in the sense of the reasoning --
10
and a part of this goes to -- Judge Brunson
11
really doesn't know anything about this case,
12
other than it's been on her docket, and this
13
is part of the education of a judge.
14
MR. ASSELTA: This sounds like a defense.
15
MR. SLINEY: No. No, the Vice Mayor's
16
correct. I mean, it's about three --
17
MR. REID: If I heard the conversation,
18
you're the one most capable to do it, one of
19
the --
20
MR. CORMAN: Well, the yeah. I mean, any
21
commissioner that wants to have assistance in
22
framing a motion can contact Tom.
23
MR. REID: Separately.
24
MR. CORMAN: And we can't have consensus
25
to that.
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MR. REID: Okay. Let me explain it to
2
you. If a second or third or four or fifth
3
Commissioner wants it, then they have to do it
4
separately.
5
MR. CORMAN: Yes. Each Commissioner
6
needs to remember that outside of the scope of
7
properly noticed meetings, the Commissioners
8
are not supposed to talk to each other about
9
anything that relates to Town business,
10
without running afoul of the Sunshine Law.
11
MR. REID: Okay.
12
MR. CORMAN: So there shouldn't be any
13
discussions between the Commissioners
14
regarding anything between the Township or the
15
town, including scheduling matters, unless
16
it's during the course of a properly noticed
17
public meeting.
18
MR. REID: Any further discussion before
19
we Doris back?
20 MS. SCALA-PISTONE: No.
21 MR. REID: No? Would you bring Doris
22 back? If there's any formal words that close
23 this --
24 MR. SAAG: You can come back and close
25 this thing up. No, you just say that the Town
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1 commissioners agreed that there's no further
2 reason to continue this session.
3 MR. REID: The Town Commission agrees
4 that there's no further reason for discussion
5 -- or no further discussion necessary.
6 Then we called Ms. Trinley, the Town
7
Clerk.
8
MS. SCALA-PISTONE: May I ask something?
9
MR. REID: Sure.
10
MS. SCALA-PISTONE: I have the letter --
11
THE COURT REPORTER: This is not on the
12
record, unless you want this on the record
13
now.
14
MS. SCALA-PISTONE: No. It has to be on
15
the record. I just wanted to make
16
arrangements with counsel. You know, that
17
letter that I was discussing --
18
MR. REID: Hang on
one second. Doris,
19
wait. Doris, wait outside
for
a second.
20
MS. SCALA-PISTONE:
Rusty
Roberts. I
21
would like to get copies
to my
father.
22
MR. SLINEY: That's
fine.
That's a
23
privileged letter --
24
MS. SCALA-PISTONE:
I don't
know that I
25
have the --
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MR. SLINEY: That's a privileged letter,
but it's certainly available to any of the
commissioners; that's correct.
MS. SCALA-PISTONE: And his opinions, and
then his letter --
MR. SLINEY: Yes, I know.
MS. SCALA-PISTONE: -- that he wrote.
MR. SLINEY: Yes.
MS. SCALA-PISTONE: And he wrote it in
1996 --
MR. SLINEY: I understand.
MS. SCALA-PISTONE: -- after the Toscana
deal, you know, after the --
MR. SLINEY: I'm well aware of the
letter.
MS. SCALA-PISTONE: Okay. I wanted --
MR. SLINEY: That's fine.
MS. SCALA-PISTONE: -- it should be on
record --
MR. SLINEY: Sure.
MS. SCALA-PISTONE:
saying, to be on --
I have no problem.
-- that's what I'm
MR. CORMAN: We've never disagreed with
this letter. We've always agreed that the
Town has a very strong statute of limitations
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defense.
2
MS. SCALA-PISTONE: Right. So why
3
then --
4
MR. CORMAN: Because --
5
MS. SCALA-PISTONE: Why didn't he take a
6
stand, then? He specifically said -- and he
7
was the lawyer for the RTC -- I mean, our
8
lawyer for the RTC case.
9
MR. CORMAN: The composition of the
10
Commission was different and our marching
11
orders --
12
MS. SCALA-PISTONE: The Commission of
13
the --
14
MR. CORMAN: There were different
15
Commissioners sitting, that gave us different
16
marching orders, and our job is to follow the
17
direction of the people that are the elected
18
officials of this Town.
19
MS. SCALA-PISTONE: Another -- Larry,
20
precisely; that's correct, what you're saying
21
is correct.
22
MR. CORMAN: Right. And when we get
23
afoul of this Commission's directions --
24
MS. SCALA-PISTONE: That is why we want
25
to make our decisions now, when we are all
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7
8
9
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21
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here and we, you know, we have all the
information and the people want an answer.
we were to wait -- you never know -- there
could be another person in here. You never
know.
MR. REID: Wait a minute. One second.
MS. SCALA-PISTONE: What did you say,
Mayor?
MR. REID: If another person, who would
be the other person in mind?
MS. SCALA-PISTONE: Well, who knows? I
mean, this has taken, what a year and a
half --
If
MR. REID: Oh, I see. It might go on for
years.
MS. SCALA-PISTONE:
MR. REID: Oh, okay.
MS. SCALA-PISTONE:
-- two years?
That, I can --
We've been mediating,
we've been -- you know.
MR. REID: May I make a suggestion? I've
heard the question of it being public
conversation, the most recent memo that you
sent, and I have heard back some information
out of a prior closed session come back to me
that is really disturbing.
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1 Maybe somehow or another if we were to
2 address all of these letters and leave them in
3 sealed envelopes, so that then the
4 commissioners themselves know the content and
5 nobody else does.
6 MR. SLINEY: Well, I guess we could do
7 that. I didn't know I was going to have to
8 resort to that, but if I do, I will.
9 MR. REID: Well, I've heard it twice
10 now --
11
MR. SLINEY: All right.
12
MR. REID: -- this being the second time.
13
MR. SLINEY: Okay. I'm glad you -- I'm
14
glad the issue was brought up because I --
15
I'll resort to sealed envelopes in the future.
16
MR. REID: Okay. Thank you.
17
MR. CORMAN: Well, you know, the problem
18
with attorney-client privilege is it's
19
privileged only as long as everyone keeps the
20
confidence. I can assure you that Tom and I
21
don't talk with anybody else about what
22
happens in these meetings. It's up to each
23
commissioner to adhere to the privilege or it
24
gets lost. So we can't be with you every
25
second of the day and warn you and --
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MS. SCALA-PISTONE: And I would like to
take an oath that I have never --
MR. CORMAN: Well, we're not asking for
oaths. We're just pointing out to you that --
MS. SCALA-PISTONE: May I take an oath?
MR. REID: It shouldn't happen
administratively. It usually happens in the
copying; somebody sees -- somebody walks by
and sees something. That's what we run into.
MR. CORMAN: Well, the point is that it's
up to each of us to the maintain privilege.
MR. REID: Okay. Whatever we said
before, say it again, and it's closed.
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C E R T I F I C A T E
THE STATE OF FLORIDA)
COUNTY OF PALM BEACH)
I, Dianna BeDilion, Notary Public for the
State of Florida at large, certify that I was
authorized to and did stenographically report the
foregoing proceedings and that the transcript is a
true and complete record of my stenographic notes.
Dated this Date day of Mo ,
200
Dianna BeDilion, Court Reporter
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abandon 17:20
abatement 24:25
ABC 70:13
abeyance 34:10
abide 80:19
ability 48:6,13 61:7
90:7
able 9:2123:5 36:22
45:10 48:3 52:4
53:14 92:1
abstracts 82:17
accept 16:2 59:10 78:1
acceptable 66:7
accepting 58:16
accommodate 10:3,7
32:2191:25
accomplished 79:15
80:3 91:2
accrue 24:10
accurate 41:16 46:15
accurately 13:20 40:4
40:20
acknowledged 25:18
ACLF 27:5
acre 27:4
acres 6:14,17 8:19,22
60:14
action 7:15,2116:20
27:128:20 29:4
46:24
actions 23:25
activated 88:3
activities 13:15
actual 45:18 52:6 65:21
addition 52:2 71:12
additional 22:14 25:3
39:1157:20
address 99:2
adhere 35:17 99:23
adjacent 23:2 43:8
44:13,18
adjoining 7:9
adjourn 4:24
adjournment 65:24
adjudicated 74:13,14
adjudicating 80:25
administratively 100:7
admissions 87:5
admit 89:16,17
advance 29:7
advantage 39:7 62:4
advantageous 34:14
advantages 14:21
adversely 43:17
advice 36:25 57:1
75:19 83:10
advocate 67:5
affirmative 49:1
affirmed 14:2
afford 81:16
afoul 94:10 97:23
afternoon 3:5 30:14
76:22
agenda 9:12 37:3 85:15
aggressive 84:18
ago 58:1,10 59:20
60:19
agree 7:1131:18 43:13
56:10,13,18,2159:1
63:8 65:166:1,8,16
66:17 68:1175:18,23
79:4,5,8 82:7 87:19
agreed 34:23 46:10,10
63:10 66:7 95:1
96:24
agreement 24:25 31:17
45:2146:5,16,20
47:1,5,6
agrees 95:3
ahead 28:18 70:12
allegations 25:2151:22
alleged 17:25
Allegiance 3:13
allow 21:15 33:19
allowance 81:25
allowed 13:18 21:4
26:16 45:6 50:14
allowing 17:2
allows 6:4
alternate 48:3
altruistic 44:5
amending 87:13
amount 18:15 21:24
analyses 12:2
analysis 40:12,12 65:21
announce 3:16 62:17
85:23
answer 9:2 32:13 50:24
70:7 76:2188:14
98:2
answer's 50:15 51:1
anticipate 75:11
anybody 5:23 9:19
40:2150:5,5 92:20
99:21
anymore 27:25
appeal 14:3 47:11,12
APPEARANCES 2:2
appeared 38:11
appellate 40:10 75:2
appended 52:1
applicable 20:13 22:11
49:19
application 43:9 49:11
applied 11:13 42:17
61:25 62:2,6
appreciate 73:1,3
83:11
appreciation 23:12
approach 85:5
appropriate 23:20 45:3
52:17 82:13 91:7
approval 26:15 58:22
76:8
approve 9:5 34:9 46:21
46:25 57:14
approved 46:15,19
approximately 6:18
7:22
April 1:13 3:4,7 9:11
66:2 77:21,22,22
78:9 79:14 80:6
area 59:5,6
areas 11:12 20:9 59:7
arena 70:2
argue 17:20,23 84:13
arguing 70:21
argument 8:13,14,17
16:10 25:5 44:21
67:8,10,10
arguments 17:4 68:23
arrangements 95:16
asked 29:25 49:7,18
asking 50:13,22 53:18
87:4 100:3
asks 27:2
Asselta 2:7 4:20 23:23
39:20 42:144:22
45:4,8 54:16 61:16
63:7,22 64:5,8 65:2
65:17,22 66:13 69:24
70:1,6 71:16,22,24
72:6,13,18,21,24
73:2,5,1175:25 76:4
77:17 78:4,9 79:18
79:24 93:14
Asselta's 39:18,22
assembled 3:8
assert 18:5 19:8,18,21
22:7,8 24:3 41:5 43:1
50:22 51:3 52:3
53:14 87:13
asserted 41:10 42:13
49:5,12 52:18,20
53:8 86:21
asserting 18:2 22:10
49:3 51:7 89:20
assist 91:6
assistance 85:3 91:4
93:21
assisted 59:12
association 14:9
assume 18:22 83:24
assumed 82:11
assuming 29:1151:21
52:20
assure 99:20
atmosphere 70:2
attack 19:17
attainable 14:18
attempt 85:24 90:13
attempts 26:10 80:25
attendance 4:21
attending 3:16
attention 59:20
attitude 34:6
attorney 7:7 36:8,17
41:15 67:3 84:12,18
85:1
attorneys 7:9 39:23
81:182:16 83:21
attorney-client 99:18
attorney/client 3:10
authorized 101:9
avail 26:8
availability 10:8
available 28:1134:1
36:17 91:15,20 92:19
96:2
avenues 58:6
avoid 83:9 84:16
avoided 49:10
avoiding 67:2
award 15:12,23
aware 10:22 19:6 39:18
54:16 69:24 96:14
B
B 83:8,14
baby 80:8
back 3:25 4:25 24:18
26:17 61:8,24 72:14
76:18 94:19,22,24
98:23,24
background 55:9
bad 10:14,15 66:15
ball 4:2 11:4 18:9 22:13
41:6
barred 18:1
barrier 59:4
based 13:15 16:7 86:13
87:19 89:20 90:1
basic 10:2120:15
basically 6:20 7:10,16
8:113:3 16:4 19:24
21:6 27:129:5 32:19
55:8,11,17,19,21
68:18 72:10 91:22
basis 51:21
Beach 1:6,12,213:6
35:14 64:12 69:9,10
101:4
beauty 54:3
BeDilion 1:20 101:7,17
begging 81:25
beginning 3:4
behalf 7:7 19:9 88:5
behave 40:24
behest 81:9
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believe 6:24 16:9 18:3
24:24 29:16 51:14
52:22,24 61:1173:6
81:5 91:15
believes 87:11
Ben 2:9 3:20 71:19
bench 12:1
benefit 30:1135:3
36:15 39:12 49:12
best 7:14 32:20 58:25
59:2 67:5 73:1174:2
85:11
better 34:20
beyond 24:4 57:10
63:25
bit 83:3
blame 72:22
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80:6 90:19 101:12
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daughter 80:7
day 3:3 34:24 38:11
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