Resident sues Key Biscayne over ballot question to approve sea rise spending

A new lawsuit takes aim at one of the most hotly contested topics in the Village of Key Biscayne: a bond proposal of up to $100 million to create a steady funding stream for large-scale resilience projects on the low-lying barrier island.

The question of whether to approve the proposal is set to go in front of voters on the Nov. 3 general election ballot.

The complaint, filed Friday on behalf of resident Gustavo Tellaz by Miami lawyer David Winker in the 11th Judicial Circuit, contends the ballot question violates three rules set by Key Biscayne’s charter, the governing document of the village.

Winker told the Miami Herald Friday that his case is not about resiliency or dealing with climate change, but about what “good governance and public participation in local government decision-making should look like.”

Arguments against the bond

The first issue his lawsuit brings up is the process by which the bond would be approved. Winker notes that per the charter, certain actions must be “effected or authorized” by “ordinance,” including the borrowing of money, which the general obligation bond authorizes.

However, the resolution passed to get the proposal on the ballot reads: “if a majority of the votes cast by qualified electors … approves the ballot question ... the Village shall be authorized to issue the Bonds.”

Because it’s a resolution and not an ordinance, Winker argues that the bond issue clashes with the charter rules.

Winker’s second point argues that because the ballot proposal does not ask voters to check “yes” or “no,” the measure doesn’t comply with a section of the village charter that requires ballot issues pose the question as such.

That said, Florida statute maintains that ballot questions regarding a bond referendum should end with the options: “For Bonds” and “Against Bonds,” which is how the ballot language is presented on the resiliency referendum.

Winker argues that because the statute also makes clear that the law is “additional and supplementary to any such local law,” the ballot language is in violation of the village charter’s “yes” or “no” rule and is therefore not kosher for voters.

The third argument Winker makes is that the ballot doesn’t have a meaningful description of the projects that would be funded by the authorized bond money. He notes that the village website set up for the bond proposal goes into detail, but that none of the projects articulated on the site appear in the referendum language.

Winker called the proposal an “unprecedented blank check” that “violates the express requirements of the village charter.”

Tellaz, the plaintiff in the suit, did not respond to a request for comment. Parts of the complaint lifted phrases from a recent column published in the Islander News by Village Council member Ignacio Segurola, who opposes the bond proposal.

Winker said Segurola is not behind the lawsuit, and that he lifted phrases “because I thought he summarized it so well. ... We’re always cutting and pasting for each other.”

Segurola did not respond to a request for comment.

Mayor stands by the proposal

Ted Freeman, who provides counsel as the village attorney to Key Biscayne, did not respond to requests for comment either. Mayor Mike Davey clarified that the ballot proposal is not asking voters to approve the authorization of funds for a project, but rather grant future councils the option to pass an ordinance to issue the bond money, as is required by the charter.

Davey said he has confidence in the village attorneys who approved the language, and that it should be in line with the rules to go on the ballot.

“This isn’t their first rodeo,” he said.

Per Florida statute, a ballot question may not exceed 75 words. Davey said the village has done its best in pushing a public information campaign about the types of projects the bond would finance. However, only so much can fit on the ballot.

“If we could put a novel in there to explain every part, we would,” he said.

A divisive issue since the start

The referendum is just one in a series of actions the village has taken in hopes of addressing sea rise as a symptom of climate change. It has declared a climate emergency, had experts analyze its flooding vulnerabilities and suggest solutions, and held community meetings to get public input on residents’ worries and wants.

The village hired its first Chief Resilience Officer, Roland Samimy, a coastal systems and water resources scientist with decades of experience in the public and private sector.

The proposal has also turned into a political dividing line among residents and in the crowded race of 10 candidates vying for three open seats on the Key’s village council. Those who are against it cite fiscal conservatism, arguing that resilience projects should be approved and funded once “shovel ready,” not decided by future councils using money already set aside.

Armando Chapeli, a businessman running for village council, said Friday that he was not surprised to learn of the lawsuit given the climate around the election. Chapeli is against the bond.

“There is a lot of opposition to this idea of pre-authorizing $100M expenditure in the hands of yet-to-be-named council members and yet-to-be-named projects,” he said. “It’s not a wise approach to public finance, in my humble opinion. There are a lot of people very scared.”

The village council approved the resolution in July calling for residents to vote on the bond issue. At the time, former Village Manager Andrea Agha explained that the resilience initiative outline had an estimated total cost and that while general obligation bonds usually cover a lesser amount, the village would make up the difference.

At the time, she said the sea level rise and flooding category would involve projects like roadway elevation with a total cost of $40 million. The second category, focused on beaches and shorelines, would involve creating an offshore breakwater, sand and seagrass mitigation with a total cost of about $64.5 million About $23.3 million would be covered by the bond, she said.

The last category is hardening infrastructure, which includes burying utility lines, possibly with the financial assistance of Florida Power & Light. Total cost in this category would be $49.2 million with $35.2 million in bond money.

Agha suddenly resigned from her position Thursday night, and the Village Council called a special meeting Friday to address the vacant position.