In a unanimous ruling Wednesday, a Florida appeals court upheld Key Biscayne’s $100 million resiliency bond approved by voters in 2020. The court, without comment, put aside arguments that the 2020 ballot measure was misleading and did not follow proper procedure.
The measure, which dominated elections on the barrier island that year, passed overwhelmingly with 57% of voters in favor.
A three judge panel of the Third District Court of Appeal upheld a lower court ruling that found that bond opponent Gustavo Tellez’s arguments had no merit. Wednesday’s appellate ruling came in the form of a “PCA,” or per curiam affirmance, which effectively ends the case. Such an affirmance makes it “almost impossible” to take the matter further to the Florida Supreme Court, said Mark Hicks, a prominent appellate attorney.
Mayor Mike Davey praised the village’s legal team and said the ruling should unite the village on pursuing projects to combat sea level rise.
“Let’s put this behind us and move on. Let’s turn the page,” Davey said.
“We are pleased that courts at the trial and appellate levels found the lawsuit to be baseless,” agreed Jennifer Stearns Buttrick, who helped lead a political committee supporting the bond question.
“The voters overwhelmingly approved the bond to build a resilient and safe future for our community. We now must focus on electing leaders who will get the projects done,” she said in a statement.
The bond referendum had been cast as a “blank check” by opponents, a claim that was specifically rejected by Circuit Court Judge Samantha Ruiz Cohen last year. She found that the wording of the ballot question was “plain and unambiguous.”
The ruling enables the village administration to start seeking the first segment of borrowing. Davey said lenders have been unwilling to even start discussions while the legal uncertainty of the court case remained.
With the legal cloud now removed, those borrowing discussions can begin, although Village Manager Steve Williamson has said he won’t present a borrowing resolution to the council unless there are at least $5 million in specific projects ready for funding.
Still, the matter of borrowing for projects like drainage, shoreline protection and utility undergrounding remains politically charged with two new questions on November’s ballot. The village cannot borrow the full $100 million because of a 1% debt cap in the Key Biscayne Charter and the fact that the village uses some of its borrowing capacity for other projects. The resiliency projects could cost $250 million, although much of the funding would come from state and federal sources.
Voters are being asked to increase the debt cap to 2% of the island’s taxable property value. The three candidates for mayor facing off in the Aug. 23 primary have differing views: Katie Petros and Joe Rasco support changing the restriction, while Fausto Gomez opposes it.
“Mr. Tellez and I appreciate the court’s consideration of the concerns we raised in the bond validation process provided for by the Florida legislature, and respect the court’s decision,” said attorney David Winker in a statement.
Recently, new details have emerged about how the legal challenge to the 2020 measure came about, and how opponents sought to fight the bond.
In sworn testimony earlier this year, Tellez said a group of residents pooled money and hired Winker to file the lawsuit and that he had agreed to be the plaintiff. The main organizers were Louisa Conway and Jennifer Allegra, who were unsuccessful candidates for council that year, but Tellez didn’t remember who else donated legal fees. Conway later said the group was 10 or 12 people who chose to remain anonymous and declined to say how much had been raised or spent, but confirmed she handled the funds.
Tellez’ testimony came as part of a May 11 deposition in an unrelated defamation case brought by the Key Biscayne Community Foundation against Tony Campaigne, who purchased ads in the Islander News critical of the charity and others. The “Pepe the Parrot” ads appeared as columns that the newspaper later ceased running. After the defamation case was settled, the Foundation sent the deposition to the village, said Village Attorney Chad Friedman.
In the deposition, Tellez said he didn’t even know that an appeal had been filed and that he hadn’t spoken to Winker about it. In a subsequent interview, Tellez made it clear that although he didn’t know of the appeal beforehand, he approved of Winker filing it.
“I’m OK with it,” he said.
Conway did not respond to a request for comment about the appeals court ruling.
One unknown matter is whether the village will seek to recover legal fees, ultimately paid by taxpayers, to defend the bond resolution in court. Davey said it’s a question the council may take up with the village attorney.