New expressways legal battle twist: who gets planning seat?

The battle over which of two dueling agencies is the legitimate operator of five Miami-Dade tollways is taking another curious twist today (12/7) as the county’s Transportation Planning Organization works to decide which is entitled to a seat on the planning body.

The organization is to today pick an outside attorney to opine on whether the county-backed Miami-Dade Expressway Authority (MDX) or the state-backed Greater Miami Expressway Agency (GMX) will sit on its board.

The selection is vital because the planning organization sets priorities for transportation projects, and a board vote could be crucial.

The county attorney officially represents the planning organization, but rules state that the county attorney can let the planners employ an outside counsel for specific needs. In this battle between county and state, the county attorney has stepped aside from recommending a winner of the planning board seat.

This is the first public skirmish in the war since October, when Miami-Dade commissioners voted that control of the five Miami-Dade expressways that the state-created GMX began operating in August is to be legally returned to the Miami-Dade Expressway Authority.

The county vote said the state had no legal authority to run the tollways because the takeover violated the county’s home rule charter granted by the state in 1956. The county legislation said the commission’s actions legally restore control to the ousted authority.

But the control issue is still in the courts, and the two commissioners who dissented from the October vote insisted that the Legislature would try again and again to wrest control of the expressways from the county.

The expressways are SR 122, the Airport Expressway; SR 836, the Dolphin Expressway; SR 874, the Don Shula Expressway; SR 878, the Snapper Creek Expressway, and SR 924, the Gratigny Parkway.

The sponsor of the ordinance that aimed to restore their control to locally run MDX, Commissioner Kevin Marino Cabrera, said the issue had been discussed in meetings “ad nauseum.”

A potential future highway in Monroe County was included in state legislation that was geared to put the GMX in charge. A key impediment to state takeover had long been that the county authority operated entirely within Miami-Dade and the state could not control a county agency under Miami-Dade’s home rule charter.

Commissioner Roberto Gonzalez, who voted against local control, said the vote would not end the matter. “The Legislature will file another law, and then another, and then another” to regain the expressways, he said. “Don’t pick a fight with Tallahassee.”

But after commissioners voted 10-2 that legal control of the expressways was in the hands of the Miami-Dade Expressway Authority once again, they approved a separate motion by Chairman Oliver Gilbert III asking that the county administration begin a process for the county to pick its two members to the GMX in case MDX loses control via the courts.

On Sept. 28, the Transportation Planning Organization had voted to adopt a process to appoint two members to the GMX board, which had been operating without the four representatives to be appointed in the county as law provides. All five current appointments were under the governor’s control.

The state legislation requires two of the nine members appointed to the GMX board to be named by the planning organization and two by the county.

After a Leon County judge in August had ordered a turnover of assets of the 29-year-old Miami-Dade Expressway Authority to the state’s newly created GMX and ruled MDX dissolved, GMX took over operation Aug. 19 and dismissed the top MDX operators.

Meanwhile, a ruling in the Circuit Court of the Eleventh Judicial Circuit that GMX had been properly abolished earlier by the county in accordance with the state constitution is still being appealed in the Third District Court of Appeal by GMX.

The ruling in favor of GMX by Circuit Judge Angela Dempsey in Leon County said GMX was given control as of July 1 by new state legislation that also dissolved the authority.

In this week’s action, the Transportation Planning Organization looked to each of the state’s other 28 metropolitan planning organizations to see if its attorney would be available to opine on which agency should legitimately be represented on its board – in effect, deciding for the planning organization’s purposes whether the state or the county should control the five expressways. The fee for that advice is capped at $30,000, which is to come from federal funds.

Of the 28 planning organizations, 15 use their own county’s attorney and four are now without legal representation. That left nine organizations, but six of those are represented by Miami law firm Weiss Serota Helfman Cole & Bierman, which was not available due to a conflict of interest in the case.

Another response was pending, and one firm declined.

That left only Thornton Williams of Williams Law Group of Tallahassee and Jay Small of Mateer Harbert in Orlando as candidates for today’s choice of someone to recommend whether the state’s GMX or the county’s MDX should get a seat at the planning organization’s table.