Petition leaves South Florida toll road agency litigation unsettled

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The future of the Miami-Dade County Expressway Authority will remain unsettled for the foreseeable future while the Florida Department of Transportation appeals to a higher court.

The authority had won a circuit court ruling challenging a state law to abolish it.

FDOT on Monday filed a petition for a writ of prohibition asking the First District Court of Appeal to overturn rulings by Leon County Circuit Judge John Cooper and to void the lawsuit challenging the constitutionality of House Bill 385 filed by the authority, also known as MDX.

Gov. Ron DeSantis signed HB 385 on July 3, immediately dissolving the MDX and replacing it with the Greater Miami Expressway Agency and a new board under tighter state control. The law also ordered the new board to consider reducing toll rates and offering rebates to local drivers.

Cooper ruled on Aug. 29 that the portion of the bill terminating the MDX was unconstitutional because it usurped Miami-Dade County's home rule powers by making a special local law that pertains only to the county. He granted partial summary judgment in favor of MDX.

In a separate action Monday, FDOT filed a notice in MDX’s lawsuit of its intention to appeal Cooper’s ruling striking down HB 385. The appeal was anticipated.

The request for a writ of prohibition is an interesting way to challenge the underlying lawsuit, according to an attorney not affiliated with the case.

The use of a writ is “pretty unique” because few of them are filed, said the attorney, who asked not to be not to be named.

“The argument the state is making is essentially that the court doesn’t have before it a valid plaintiff…because the MDX was dissolved by legislation and no longer exists,” the attorney said Tuesday.

FDOT also cites a number of cases in its filing to support the fact that a state agency can’t legally challenge legislation that is directed at it, he said.

In finding HB 385 unconstitutional, Cooper determined that the law was void from its inception and that it wasn’t a valid act, the attorney said.

According to the FDOT’s writ petition, “the trial court has refused to dismiss MDX’s complaint against FDOT and is proceeding to adjudicate MDX’s underlying constitutional claims” even though the expressway authority lacks both standing and legal capacity to sue.

FDOT also claims it’s not a proper defendant in the lawsuit because it has no role in enforcing the challenged statutes.

“Because the trial court lacks subject matter jurisdiction as a matter of law, this [appellate] court should issue a writ of prohibition requiring dismissal of the proceedings below,” the petition said.

Cooper had ruled on issues of standing during hearings this summer.

Miami-Dade County Mayor Carlos Gimenez, who chairs the MDX board, did not immediately respond to a request for comment about FDOT’s court filings on Monday.

The Florida House of Representatives, which has intervened in the MDX suit, may also appeal Cooper’s rulings.

The push to revamp the MDX came from HB 385 sponsors Sen. Manny Diaz and Rep. Bryan Avila, both Republicans representing Miami-Dade who disagreed with the authority's toll policies even though the authority had reduced tolls.

Diaz disputed the court ruling that found the legislation amounted to a local bill that violated Miami-Dade County’s home rule authority, which is protected in the state constitution.

“This is not a home rule issue because this was a statutorily-created entity by the state legislature,” he said in an Oct. 3 interview with WLRN, a public radio and television station in South Florida. “Had the Legislature not passed the statute to create MDX, the county couldn't just arbitrarily create it.”

Diaz denied that the current dispute boils down to a fight between local residents having control of the agency, and the state wanting take control of it. He said the new law created the Greater Miami Expressway Agency, and that it would continue to be “completely” controlled by a local board.

The bill gave the governor three appointments to the new governing board, and a fourth consists of the local secretary of FDOT.

The law requires the Miami-Dade Transportation Planning Organization to appoint three members and the Miami-Dade County Commission to make two appointments. To date, those appointments haven’t been made because of the ongoing litigation.

The current MDX board consists of three members appointed by the governor, the local secretary of FDOT, and five members appointed by Miami-Dade County, which created the expressway authority in 1994.

Diaz also told WLRN that toll revenues collected by the Greater Miami Expressway Agency would remain in Miami-Dade County, despite “rumors” that those revenues could be used elsewhere in the state.

“Simply what was implemented was some more rigorous transparency when it comes to procurement and when it comes to disclosure,” he said.

The bill, however, imposes more restrictions on the new agency as opposed to the current independent structure under which the MDX operates.

HB 385 would ban toll increases until 2029, except by a vote of two-thirds of the governing board — instead of the current majority vote requirement — and only to comply with bond covenants.

Yet another requirement is that proposed bond issuances must be approved by the Legislative Budget Commission.

Diaz also said that after HB 385 was signed, that he believed the MDX board continued to meet illegally and “decided to reduce or to implement the rebate of 30%, which all along they were saying they couldn't afford to do because it would cut projects.

“Clearly there is enough money in there, which is what we were calculating when the bill was passed,” he told WLRN. “They can reduce these tolls for people who were using it every day and they still have money left over to be able to complete some of these projects, including the Kendall Parkway.”

On Aug. 28, the MDX board approved a 30% rebate of tolls to drivers registered with the MDX Frequent Drivers Rewards Program. Drivers who spend more than $150 dollars a year in tolls on MDX’s expressways will be eligible for a rebate of almost one third of their annual tolls paid to MDX in last fiscal year. The board did not reduce toll rates.

HB 385 requires the new agency’s board to consider reducing toll rates by up to 5% and implement toll rebates of as much as 25% for Miami-Dade County drivers. It also required the Florida Auditor General to “assessing the financial situation” of the expressway authority and the effect of reducing tolls and rebates.

Auditor General Sherrill F. Norman said in the Sept. 27 report that MDX’s financial situation is “positive.” The report concluded that the planned $1 billion Kendall Parkway project could not be financed and constructed if tolls are both rebated and lowered as required by the bill.

MDX’s toll revenues support about $1.5 billion of outstanding bonds, as well as pay for MDX’s operations and capital plans. The passage of HB 385 led rating agencies to downgrade MDX’s ratings.

S&P Global Ratings lowered MDX's rating to A from A-plus on July 16. Moody's Investors Service cut its rating to A3 from A2 on July 5, and to A2 from A1 on May 10. Fitch Ratings downgraded the authority to A-minus from A on May 8. All have negative outlooks.

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