Bond referendum lawsuit picks up steam with next hearing set for June 22

A lawsuit against the Village of Key Biscayne regarding the highly publicized bond referendum which voters approved in November for resiliency projects continues to ping-pong in the Miami-Dade court system.

Last week, the Village filed a “Motion for Protective Order,” asking the 11th Judicial Court to stay any discovery until it rules on the Village’s pending “Motion for Summary Judgement.” That hearing takes place June 22.

Plaintiff Gustavo Tellez, a Key Biscayne resident, had initiated his lawsuit on Sept. 25, seeking to invalidate the bond referendum that was eventually approved by residents (by a 56-44 percentage margin) in the Nov. 3 election.

Commonly referred to as the “GO Bond Referendum,” the $100 million general obligation bonds can be used for resiliency and sustainability projects that would help protect the island against sea level rise and the effect of hurricanes.

But Tellez, in essence, contends the referendum is a $100 million “blank check” for the Village Council to spend at will.

Coral Gables attorney David Winker, who is representing Tellez, argues it’s more of a case of transparency, or lack thereof.

“We’re entitled to our day in court,” Winker said. “We’ve asked for some discovery. Different people say different things. If you listened to Andrea Agha (the former Village Manager), she said, ‘No specific projects have been identified.’ But then you see things pop up on websites (such as vkbresiliency.org) and you wonder where these came from, and are those really the projects?”

Winker is seeking to depose at least 10 witnesses, including Council members Brett Moss and Allison McCormick; Chief Resilience Officer Dr. Roland Samimy; Community Foundation Executive Director Melissa White; Director of Building, Zoning and Planning Jake Ozyman; and, of course, Agha.

But the Village also will be seeking a protective order against those depositions, if necessary, a week after the June 22 hearing, according to Winker. He said if the case continues to proceed, however, it could take up to a year before the lawsuit is settled.

Part of the Village’s latest response, filed June 3, reads: “Since initiating this action nearly a year ago, (Tellez) failed to make any efforts in obtaining any discovery. Now, weeks after the Village filed its Motion for Summary Judgement (on March 23 of this year) and three weeks before the (June 22) hearing ... (Tellez) served its first discovery requests on the Village.”

The Village said the discovery requests “are entirely unrelated to the legal issues before the Court and appears that it is only intended to delay the hearing ...”

Tellez’s lawsuit makes three critical points in his case against the Village:

1. The Bond Referendum should have been authorized by an ordinance rather than a resolution.

2. The Bond Referendum language should have included the words “Yes” and “No” (as opposed to “For Bonds” and “Against Bonds”).

3. Voters were not informed of the Bond Referendum’s purpose because the specific projects to be funded were not in the referendum or resolution authorizing the vote.

In the Village’s latest response, submitted by attorneys Joseph Serota, Chad Friedman and Charles Garabedian, it points out that “the first two issues are purely legal and do not involve any factual analysis. Thus, none of the Plaintiff’s discovery can be relevant to such discrete legal issues.”

As far as the third point, the Village said, “... the Court need only decide whether the Village website (and public reporting) objectively informed the electorate of the Bond Referendum’s purpose ... The sole issue is what information was available to voters on November 3, 2020.”

In late February, Miami-Dade Circuit Court Judge Samantha Ruiz Cohen denied a Village motion to dismiss the case entirely.

Now the Village is saying that if there’s no new information that the Court does not already know, then the Motion for Summary Judgement should be allowed.

Earlier, Winker said the Village “failed to comply with the express provisions of the Village Charter and Florida law by failing to outline how the money would be used.”

“It’s tough to give politicians a blank check to spend on anything,” Winker said Wednesday. “The law requires reasonably informed voters to know what they’re voting for. I mean, if the commission in the first place had said, ‘Here, these are the three (resiliency) projects,’ then (there would be no lawsuit),” Winker added.

Key Biscayne Mayor Mike Davey said he was disappointed at Judge Cohen’s ruling and was hoping on getting things done for the betterment of the island. Nonetheless, a beach widening, and re-nourishment project already took place earlier this year, but federal money was allocated for that, Winker said.

Later this year, Key Biscayne will be celebrating its 30th year as an incorporated city.

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