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Close encounters of the referendum kind.

Florida's voters have been asked to decide whether they should have the final say on all comprehensive planning decisions. The question has been presented by way of a proposal to amend the Florida Constitution. The text of the proposed amendment reads as follows:

Public participation in local government comprehensive land use planning benefits the conservation and protection of Florida's natural resources and scenic beauty, and the long-term quality of life of Floridians. Therefore, before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, such proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body as provided by general law, and notice thereof in a local newspaper of general circulation. Notice and referendum will be as provided by general law. This amendment shall become effective immediately upon approval by the electors of Florida.

On November 2, 2010, the proposal will appear as Amendment 4 on the ballot for the statewide general election. (1)

Hometown Democracy's Initiative

Amendment 4's journey to the ballot box began in 2003 when a group called Hometown Democracy, Inc., started the citizen initiative process of amending the state constitution. Since that time, a significant amount of public discourse has been generated regarding the merits of the proposal. (2) However, less attention has been given to the text of the proposed amendment even though the text raises several important legal questions. As discussed below, these questions bear directly on whether Amendment 4 sufficiently lays out a means by which its intended purpose can be achieved.

The Power of the People

Amendment 4 purports to infuse direct citizen approval into Florida's existing process of adopting local comprehensive plans and plan amendments. If approved, Amendment 4 would strip each local representative body of the power to make decisions on comprehensive planning matters because the electorate would not be bound to such decisions under Amendment 4. Regardless of the data, analysis, and technical review that may go into a comprehensive planning proposal, the ultimate decision would lie with the electorate. As such, Amendment 4 proposes a form of direct democracy in the context of comprehensive planning.

* Democracy in the United States --A direct democracy consists of citizens who vote directly on the establishment of laws and policies. The concept dates back to the city-states of Ancient Greece, and in its purest form, there is no representation. Legislatures are unnecessary in a pure direct democracy because laws originate with the people and are adopted by simple majority approval.

For many people, direct public participation and majority rule constitute the bedrock upon which the American brand of government resides. Hometown Democracy promotes that exact view by stating that Amendment 4 will "put[] the people back in charge...." (3) The historical record does show that people of Colonial America submitted petitions and proposed ordinances that were approved by referenda, most notably in the New England town halls. (4) It is also true that when the American colonists declared their independence, they sought a government "instituted among Men, deriving [its] just powers from the consent of the governed." (5) The United States Constitution begins with the phrase, "We the people...." (6)

However, the United States is a constitutional republic, not a direct democracy. The Founding Fathers were well aware that "men are not angels," and they harbored a healthy distrust of majorities, the factions that inevitably manifest from within, and the havoc they create in a pure democratic system. As James Madison --who is most often credited as the architect of the U.S. Constitution --explained:

There are particular moments in public affairs when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament. (7)

The Founding Fathers were less concerned about minority factions because while such groups may "convulse the society," they would be "unable to execute ... their violence under the forms of the Constitution." (8) Rather, it was the transient, often imprudent, and almost always tyrannical nature of an impassioned majority--what Madison called the "mischief of faction"--that posed the greatest threat to individual rights, minority interests, and the public good. (9) The Founding Fathers purposely chose a representative form of government as a means to filter majority preferences through the disciplined processes of an elected legislature, and then made it virtually impossible under the U.S. Constitution for the public to directly participate in lawmaking. (10)

* Democracy in the States--U.S. Const. art. IV, [section] 4 "guarantee[s] to every State in this Union a Republican Form of Government." (11) Known as the Guarantee Clause, the provision seems to invalidate any product of direct democracy even though many state constitutions reserve the powers of initiative and referendum to the people. The Guarantee Clause has rarely been the subject of litigation, and while a full discussion of the clause is unnecessary for purposes of this article, it is relevant to note that in those few cases in which enforcement was sought, courts have usually ruled that the issues presented were political and not within their powers to adjudicate. However, the U.S. Supreme Court has suggested more recently that the Guarantee Clause could be enforced under certain circumstances. (12) Perhaps a reasonable interpretation of the Guarantee Clause is that the states may experiment in forms of direct democracy as long as they do not supplant the legislature's role, serving only in an ancillary or complimentary capacity. (13)

* Forms of Initiatives and Referenda --In any event, elements of pure democracies can be found at the state and local levels throughout the nation, although not always in the same form. For instance, initiatives come in two forms. A "direct initiative" is one by which a sponsor circulates a petition proposing a certain measure and if a predetermined number of signatures are obtained, then the people vote on it. The process unfolds without the consent of the legislature. Amendment 4 is a direct initiative. An "indirect initiative" is one by which a sponsor submits a petition to the legislature, and a referendum is held only if the legislature fails to adopt it. In either case, the initiative operates as a substitute for the legislative process. (14)

A referendum occurs when legislation is referred to the people for their approval. (15) A referendum does not bypass the legislative process, but like the initiative, it comes in different forms. A "mandatory referendum" occurs when a legislative enactment must be approved by referendum. In contrast, a "voluntary referendum" occurs only if the legislature chooses to refer a piece of legislation to the electorate. Finally, with a "popular referendum," the electorate is given the opportunity to submit a petition and thereby force the referral of a previously enacted legislative measure to a vote by the people. (16)

Initiatives and Referenda in Florida

The discussion thus far has been provided only because Amendment 4 should be viewed in light of the fact that the United States is not a pure democracy, and plebiscite (17) rule is not the default standard. Simply put, the power of initiative and referendum is not boundless and untapped, waiting only for the people to unilaterally decide when and how it should be employed. While people in some states enjoy the powers of initiative and referendum, they may be exercised only in accordance with the laws of each particular state.

* The Florida Constitution--The original Florida Constitution (1838) did not reserve the power initiative and referendum, mirroring the federal constitution in that respect. (18) Subsequent versions (1865 and 1868) did not include any such reservation either. (19) Then, during the late 1800s, elements of direct democracies, such as the initiative, referendum, and recall processes, emerged at the state and local levels. (20) Although this trend was most evident in the western frontier states, it soon made its way to Florida.

In 1885, Florida's fourth constitution was ratified, and therein the people reserved the power of initiative and referendum. The reservation was limited, however, for certain circumstances, such as when amending the constitution, issuing government bonds, consenting to local government taxation, or passing special or local acts. (21)

Eventually, the reservation was expanded. The Constitution of 1968 begins by stating in art. 1, [section] 1 that "[a]ll political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people." The Florida Supreme Court has held that this general reservation of political power includes the powers of initiative and referendum. (22)

However, the people did not decide how or when the power of referendum would be exercised. Instead, the people delegated that responsibility to the legislature by providing that "[s]pecial elections and referenda shall be held as provided by law." (23) The directive "as provided by law" is important because for purposes of interpreting the state constitution, "as provided by law" means "as enact[ed] by the State Legislature ... --not by a City Commission or any other political body." (24) The Florida Supreme Court has even explained: "Once the referendum power is reserved, particularly as done in our current constitution, this power can be exercised whenever the people through their legislative bodies decide that it should be used." (25)

The Florida Constitution evidently seeks a balance. On one hand, the constitution reserves the power of the plebiscite as a check on unresponsive representatives. On the other hand, the constitution asks the legislature to decide when and how that power may be exercised as a check on an impassioned electorate.

* Referenda "As Provided by Law" --The legislature has provided for many referenda. The Florida Election Code (26) provides the direct initiative and referendum processes that must be followed when the people seek to amend the state constitution. (27) The Florida Election Code also describes mandatory referendum procedures in the context of local government bonds. Section 100.201 states that if any local government bond issuance requires referendum approval, then the bonds cannot be issued unless first approved by referendum. Subsequent statutory sections describe the procedures, time frames, and notice requirements that govern bond referenda. (28)

Moreover, the legislature has provided a uniform method by which municipalities may adopt annexation ordinances, including a mandatory referendum requirement and the details for when the referendum must occur, how and where it is noticed, the manner in which it is conducted, and the required ballot language. (29) Similarly, F.S. [section] 163.511 provides that ordinances creating special or business neighborhood improvement districts must be approved by referendum. The statute describes the time of the referendum, who may participate, the procedures, ballot forms, and number of votes needed for approval. F.S. [section] 196.1995 provides that a county or municipality may grant economic development ad valorem tax exemptions only if approved by referendum, and then provides the details of that particular referendum procedure. In each example, the legislature has provided when the referendum may be conducted, who may call it, when it may be held, and how it must be administered.

There are also local government charters that provide initiative and referendum provisions. (30) The charter of the City of Boca Raton, for example, provides an indirect initiative and referendum procedure that voters may use to propose ordinances to the city council. (31) Boca Raton's charter also provides a popular referendum by which voters can reject measures that have been adopted by the council. (32)

How is it, though, that a local government can provide for referenda when the state constitution states that only the legislature can provide them? With regard to counties, the legislature has provided that county charters must be adopted by referendum, and once adopted, amended only by the electors. (33) The legislature has also said that "[county] charter[s] shall provide a method for submitting future charter revisions and amendments to the electors...." (34) Thus, the legislature has provided that county charters must include referenda, at least for purposes of amending the charter. As for municipalities, the legislature has provided that municipal charters may be amended by initiative and referendum. (35) Moreover, F.S. [section] 165.041(1)(a) provides that a charter for the incorporation of a municipality, except in case of a merger, "shall be adopted only by a special act of the Legislature...." Given that every municipal charter is a special act of the state legislature, then all of the provisions in the charter, including any initiative and referendum provisions, have been "provided by law."

That being said, local charters are not all the same. Some charters provide referendum procedures, while others may not. Further, when referendum procedures are provided, the law presumes that they extend to all matters of local concern, but a charter may expressly provide for referenda that apply to certain subject matters. (36) The situation may vary because the legislature has not adopted a general law of referendum that applies for all matters.

Holzendorf v. City of Jacksonville, 606 So. 2d 645 (Fla. 1st DCA 1992), illustrates this point. The City of Jacksonville adopted an ordinance to impose a non ad valorem tax for municipal services. A group opposed the ordinance and petitioned for a charter amendment that would have required referendum approval of the tax. (37) The petition received enough signatures, but the city refused to place the measure on the ballot. Instead, the city filed action for declaratory relief. The trial court declared that the petition was unconstitutional because it "attempt[ed] to amend the charter by granting the right of referendum, which power can be granted only by the Legislature." (38)

On appeal, the First District upheld the trial court's decision based on the language of the charter itself. Of particular importance was the fact that the previous charter allowed the electorate to amend the charter by petition and referendum, but that provision had been eliminated when a new charter was enacted about 12 years earlier. (39) The new charter provided for a referendum only when the city council sought to amend, repeal, or adopt a charter provision that would affect the existence of the city, its form of government, or rights of city employees. Therefore, while the previous charter allowed for any charter amendments by initiative and referendum, the new charter provided for referenda in much more limited circumstances. (40)

The First District began its analysis by pointing out that the Florida Constitution requires referenda to be held pursuant to an act of the legislature. Holzendorf then reasoned that the citizens could not amend the charter by initiative and referendum to require referendum approval of the tax because the charter did not provide a referendum for that purpose. The charter was devoid of any provision that provided initiative and referendum in general. Rather, the charter provided an initiative and referendum procedure that applied only in specific, limited circumstances and as a result, the electors could not decide by initiative and referendum when other referenda may be held. Holzendorf ruled: "since the constitution expressly provides that the power of referendum can be granted only by the Legislature, it is beyond the power of the electorate to say what shall or shall not be done by referendum." (41) Accordingly, the proposal "sought to usurp the legislature's authority to grant the right of referendum." (42)

Holzendorf demonstrates that referenda cannot be held as determined by local governments, or even by the people. Under the current Florida Constitution, referenda can only be held as provided by the legislature. (43) If the legislature has provided for referenda in a general law, then the referenda so provided must be held in accordance with that law. Likewise, if the legislature has provided for referenda in a local charter, then such referenda must be held in accordance with the charter. The charter may provide for a referendum that extends to all matters of local concern, or only specific ones. This is the extent to which the power of initiative and referendum has been introduced in Florida.

Referenda Under Amendment 4

Amendment 4 would make the adoption of a comprehensive plan or plan amendment "subject to" a referendum while the "referendum will be as provided by general law." Significantly, Amendment 4 does not give the electorate any power that it does not already possess by virtue of broad reservation of political power in art. 1, [section] 1. Rather, the only change set forth in Amendment 4 is that referenda on comprehensive plans and plan amendments must be provided "by general law," not simply "by law." (44) Therefore, referendum procedures currently provided in special or local laws, such as local government charters, would not apply.

The question, thus, arises, is there a general law that would provide for Amendment 4 referenda? Although there are general laws that provide for referenda (discussed earlier), there is no general law that provides for referenda generally, or even specifically for comprehensive plans. All current general laws that provide referenda are laws that apply to specific subject matters (such as constitutional amendments, charter amendments, bonds, annexations, etc.).

Implementing Amendment 4

With no mode to implement the referenda, would Amendment 4 be self-executing? Self-executing amendments do not require legislative action to be implemented. Thus, to be self-executing, Amendment 4 must: "Lay[] down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment." (45)

Florida law presumes that constitutional amendments are intended to be self-executing, even if they could be supplemented by subsequent legislation. (46) However, when addressing this issue, a court will seek to identify the intent of the people in adopting the amendment, and then interpret it in a manner that best fulfills that intent. (47) An amendment, even if originated by citizen petition, will not be self-executing if it directs the legislature to pass laws to carry out its terms. Also, if the amendment leaves too many procedural problems and uncertainties that can only be resolved though legislative enactment, it will not be self-executing. (48)

* Determining Intent--In Williams v. Smith, 360 So. 2d 417, 419 (Fla. 1978), the Florida Supreme Court found that an amendment to the Florida constitution was not self-executing because the framers drafted a provision that stated: "'Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.'" (49)

The Williams amendment originated from a citizen petition. Following its adoption, then-Governor Reuben Askew addressed a joint session of the legislature and urged new laws to carry out the will and intent of the voters. (50) The governor's statements suggested that the amendment was not meant to be self-executing, but more importantly, the Florida Supreme Court also found that the text "unmistakably evinced a need for implementing legislation." (51) The Florida Supreme Court explained: "Had the framers intended that conviction ... would work an automatic forfeiture ..., it would not have been difficult for them to express that intent. They would have said the conviction causes the forfeiture, not that the officer shall be 'subject to forfeiture....'" (52) The Florida Supreme Court also found that the framers did not include any details in the amendment's text setting forth how forfeitures would be determined. "Instead, they clearly deferred forfeiture to such manner as may be provided by law, leaving to the Legislature the task of implementing the mandate of the people." (53)

Amendment 4 employs similar language. Amendment 4 does not say that the adoption of every comprehensive plan or plan amendment must be approved by referendum, but that they are "subject to vote ... by referendum." Further, Amendment 4 does not clarify what it means to be "subject to" a referendum. Apparently, the drafters of Amendment 4 do not want to rely on local charter provisions for implementation purposes as the result would likely be a kaleidoscope of comprehensive plan referenda across the state. Therefore, as in Williams, the framers of Amendment 4 have deferred to the legislature to provide a uniform procedure by unequivocally stating, "referendum will be as provided by general law."

As previously mentioned, Amendment 4 has generated a great deal of public discourse, and a court may look to these pre-election statements and materials as evidence of what is intended by the measure. (54) The Florida Supreme Court has said that "[i]n analyzing a constitutional amendment adopted by initiative rather than by legislative or constitution revision commission vote, the intent of the framers should be afforded less significance that the intent of the voters evidenced by materials they had available as a predicate for their collective decision." (55) Unfortunately, rather than providing clarification, the public discourse reveals a significant amount of contradiction and confusion.

* Referenda, Before or After? --The proposed constitutional text states the referendum shall occur "before a local government may adopt ... or amend a comprehensive land use plan." (56) Similarly, the ballot summary provides "that before a local government may adopt ... or amend ... the proposed plan or plan amendment shall be subject to [referendum] vote." (57) However, proponents now claim that Amendment 4 would furnish voters with a "veto power" so they "will vote on development-related land use changes after elected officials say yes." (58) Hometown Democracy states that local governments "will continue to hold public hearings on proposed comprehensive plan changes and to vote whether to approve or reject each proposal, just as they have always done." (59) Likewise, proponents of the measure claim:

Amendment 4 simply adds one step to the current growth management review-and-approval process. After local review is completed, and the council/commission vote is taken, then, and only then, does the proposed change--one that has been approved by the council or commission --go to the voters for final approval. (60)

Would a voter who reads the ballot language reach the same conclusion? Would a voter understand that "before," as used in Amendment 4, means "after," or would he or she interpret "before" as it is normally understood? (61) Does the public discourse modify the plain language of the text? Should it be presumed that voters know of the change?

* St. Pete Beach Redux?--Hometown Democracy's current view on the timing issue was not made (or made clear) until it started fending off claims that Amendment 4 will create the same kind of chaos, on a statewide basis, that the City of St. Pete Beach recently experienced.

In Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144 (Fla. 2d DCA 2006), a political action committee proposed four charter amendments by way of citizen initiative petitions. One of the proposals (Petition I) sought a charter amendment that was similar to Amendment 4:

A comprehensive plan ("Plan") or comprehensive plan amendment ("Plan Amendment") (both as defined in Florida Statutes Chapter 163) shall not be adopted by the City Commission until such proposed Plan or Plan Amendment is approved by the electors in a referendum as provided in Florida Statute Section 166.031 or by the City Charter or as otherwise provided by law. Elector approval shall not be required for any Plan or Plan Amendment that affects five or fewer parcels of land or as otherwise prohibited by Florida Statutes.... (62)

The city refused to place the proposals on the ballot and sought declaratory relief, claiming that they were unconstitutional. Upon review, the trial court allowed one petition to be placed on the ballot, but otherwise agreed with the city, ruling that state law preempted the other petitions, including Petition I. Both parties appealed. (63)

In August 2006, the Second District concluded that none of the petitions conflicted with state law. Regarding Petition I, St. Pete Beach ruled that the referendum requirement was consistent with the state's framework for adopting comprehensive plans and plan amendments because F.S. [section] 163.3167(12) already provided that: "Any initiative or referendum process in regard to any development order or in regard to any local comprehensive plan or map amendment that affects five or fewer parcels of land is prohibited." St. Pete Beach reasoned that since the legislature has prohibited referenda in certain instances, it must have allowed them in all other instances. As such, St. Pete Beach held: "that the proposed amendments are neither facially unconstitutional nor unconstitutional in their entirety, not because they merely add another step in an already detailed process but because they are inferentially permitted by section 163.3167(12)." (64)

Initially, St. Pete Beach was hailed as a working example of Amendment 4; however, that luster soon faded. (65) The new charter provisions led to multiple lawsuits, and the people realized that all kinds of comprehensive planning matters, many highly technical and most regarding issues of little concern, would be referred to them for a vote. The people eventually voted to partially repeal the charter amendments so that a referendum would be needed only when height, density, intensity of use, or land use category designations were at issue. As these events unfolded, Home town Democracy began downplaying the comparisons, arguing that Amendment 4 is different because it would insert the referendum after, not before, local government adoption.

A close inspection reveals another difference. Petition I described a specific referendum process, specifically, that it shall be "as provided in F.S. [section] 166.031 or by the city charter or as otherwise provided by law." In turn, F.S. [section] 166.031(1) provides the initiative and referendum procedure by which the electorate may amend a municipal charter, stating that a "municipality shall place the proposed amendment contained in the ... petition to a vote ... at the next general election held within the municipality or at a special election called for such purpose." According to the Florida Election Code, a general election is held every two years. (66) However, unlike Petition I, Amendment 4 does not incorporate a referendum by referencing another.

* Referenda, as Assumed?--Nevertheless, Hometown Democracy has stated that a referendum under Amendment 4 would be held in accordance with a procedure that sounds a lot like the procedure set forth in F.S. [section] 166.031(1). Granted, F.S. [section] 166.031(1) is a general law, but it is not a general law that applies to comprehensive plans. F.S. [section] 166.031(1) applies to charter amendments, and under Florida law, a comprehensive plan or plan amendment must be adopted by ordinance, not charter amendment. (67) Meanwhile, the statutes governing the adoption of local ordinances do not include any provisions for the electors to adopt ordinances by initiative and referendum, much less a procedure that is similar to one set forth in [section] 166.031(1). (68)

Hometown Democracy's procedure is also similar to the bond referenda provided in the Florida Election Code, but what makes that general law any more applicable than the general laws governing municipal annexations, special improvement districts, or ad valorem tax exemptions?

Unfortunately, the implementation issue has not been fully explored despite opportunities to do so. When preparing the financial impact statement (FIS) on Amendment 4, the Florida Impact Estimating Conference (FIEC) faced the uncertainty of how often comprehensive plans or plan amendments would be submitted to a referendum. (69) Recognizing that Amendment 4 does not articulate a process, the FIEC concluded that "[o]ver each two year election cycle, local governments will incur significant costs.... [that] will vary depending on the processes employed by cities and counties in obtaining approval for plan amendments." (70) However, the Florida Supreme Court found that the FIS was misleading because it "assume[d] that numerous local governments will have out-ofcycle changes to their respective comprehensive land use plans, necessitating special elections." (71) The FIS was revised two more times (72) before the court was satisfied that the FIS "no longer implie[d] that the proposed amendment will automatically require any out-of-cycle elections." (73)

While understandably concerned about making assumptions, the Florida Supreme Court nonetheless assumed that Amendment 4 referenda would follow the general election cycle. (74) Notably, the general election is not a catch-all event where a referendum may be placed on the ballot by default when the law does not otherwise provide for it. The Florida Constitution states that the general election was established for "choos[ing] a successor to each elective state and county officer whose term will expire before the next general election and, except as provided herein, to fill each vacancy in elective office for the unexpired portion of the term." (75)

While a referendum may be placed on the general election ballot, that is possible only because the legislature has provided for it elsewhere. (76) For example, F.S. [section] 100.211 states that "the laws governing the holding of general election are applicable to bond referenda...." (77) However, there is no general law which provides that those same laws are applicable to comprehensive planning referenda.

Conclusion

If Amendment 4 is not self-executing, then, with one exception, local governments should be able to adopt comprehensive plans and plan amendments without referring them to the electorate. The Florida Supreme Court has made clear that "[i]n cases where the constitutional provision is not self-executing, such as the instant case, all existing statutes which are consistent with the amended Constitution will remain in effect until repealed by the Legislature." (78)

If Amendment 4 only requires a "veto" and local governments "will continue to hold public hearings on proposed comprehensive plan changes and to vote whether to approve or reject each proposal, just as they have always done," then the existing statutory and administrative process is consistent with what would be in the amended constitution. Florida law does not currently forbid a voter veto of comprehensive planning decisions. On the contrary, the adoption of a comprehensive plan or plan amendment is already subject to a veto by referendum; the legislature simply needs to provide for the referendum and it has done so in many local charters. (79) Even the Florida Supreme Court has observed that the "scheme already in place allows ... a referendum process in regard to plan amendments if the amendment affects more than five parcels of land." (80) Therefore, Amendment 4 would not bring about any change by making planning decisions subject to electorate approval, and there would be nothing to execute in that regard.

The only change that would flow from Amendment 4 is that the legislature must provide the referendum by "general law" and to nullify F.S. [section] 163.3167(12). Apparently, the chief purpose of Amendment 4 is to refer all comprehensive planning decisions to a uniform referendum procedure. Under Amendment 4, comprehensive planning referenda would not be held as provided in local charters and each local electorate would no longer be able to decide whether its charter should even provide for it.

Regardless of the wisdom in that change, at least Amendment 4 looks to the legislature to provide the referendum, just as art. IV, [section] 5(a) does with respect to all referenda. This is where Amendment 4 preserves the same balance that was struck more than a century ago when the referendum was first introduced to Florida--the balance between an unresponsive government and impassioned public. The same balance disrupted in St. Pete Beach by measures that the people of that city were "most ready to lament."

If Amendment 4 is approved, the legislature would need to adopt a general law and address the many questions that are implicated by the measure. For example, when should the referendum occur and how should it be integrated within the time frames that currently govern the adoption of comprehensive plans and plan amendments. If the referendum is held following local government adoption, should it take place before the state planning agency invests time and resources in reviewing the plan or plan amendment for legal compliance? Upon adoption, local governments must transmit comprehensive plans and plan amendments to the state planning agency within 10 days for compliance review. Can a referendum be held that quickly, or does the state incur those expenses even though the approval may be vetoed on a later date?

The legislature also needs to determine how, when, and where public notice should be provided as well as the proper ballot language. What happens if the electorate approves one plan amendment, but then rejects another amendment that is needed to maintain the plan's internal consistency? Should multiple amendments be the subject of a single referendum vote, or should the statutory requirement of internal consistency be revisited? Similarly, what happens when a local government adopts a whole host of plan amendments pursuant to an evaluation and appraisal report? Does the electorate vote on each and every amendment, or cast a single vote on the entire amendment package? What happens if the legislature adopts a law that necessitates amendments to all comprehensive plans, can the electorate veto those amendments and expose the local government to sanctions? What happens if the legislature changes the underlying requirement that local governments adopt a comprehensive plan? Finally, the legislature needs to determine the proper referendum form; should it be a mandatory or popular referendum?

With all these questions to resolve, Amendment 4 clearly and unmistakably looks to the legislature for answers. After all, comprehensive planning in Florida is the product of legislative action and if the legislature is to be accountable for its actions, then it should proscribe the manner in which those actions are administered. This may require corrective legislation from time to time, but anything less would eviscerate the legislature's role and cut (perhaps too far) against the guarantee of a republican form of government. In the final analysis, Amendment 4 is not an amendment that simply could be supplemented by legislative enactment; it must be implemented by legislative enactment in order to achieve its intended purpose.

(1) The proposed amendment also includes the following definitions: "1. 'Local government' means a county or municipality. 2. 'Local government comprehensive land use plan' means a plan to guide and control the future land development in an area under the jurisdiction of a local government. 3. 'Local planning agency' means the agency of a local government that is responsible for the preparation of a comprehensive land use plan and plan amendments after public notice and hearings and for making recommendations to the governing body of the local government regarding the adoption or amendment of a comprehensive land use plan. 4. 'Governing body' means the board of county commissioners of a county, the commission or council of a municipality, or the chief elected governing body of a county or municipality, however designated."

The ballot language also begins with the following summary: "Establish[ing] that before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, the proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body and notice. Provides definitions." See Advisory Opinion to Attorney General re Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans, 938 So. 2d 501 (Fla. 2006).

(2) For a brief discussion of the Hometown Democracy initiative and potential legal challenges to Amendment 4, see Michael S. Davis & Nicole C. Armstrong, Hometown Democracy--The St. Pete Beach Experience, 38 Stetson L. Rev. 491 (2009).

(3) Vote Yes 4 Florida Hometown Democracy, http://www.floridahometowndemocracy.com.

(4) K.K. DuVivier, The United States as a Democratic Ideal ? International Lessons in Referendum Democracy, University of Denver, Sturm College of Law, Legal Research Paper Series, Working Paper No. 07-13, http://ssrn.com/abstract= 960319 [hereinafter DuVivier, A Democratic Ideal].

(5) The Declaration of Independence para. 2 (U.S. 1776).

(6) U.S. Const. pmbl.

(7) The Federalist No. 63 (James Madison).

(8) Id.

(9) The Federalist No. 10 (James Madison).

(10) DuVivier, A Democratic Ideal.

(11) U.S. Const., art. 4, [section] 4 (emphasis added).

(12) See New York v. U.S., 505 U.S. 144, 18485 (1992).

(13) See Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L. J. 1503, 1544 (1990); see also Comment, The Guarantee of Republican Form of Government: Proposals for Judicial Review, 54 U. Chi. L. Rev. 208, 238-240 (expressing the view that forms of direct democracy may not violate the Guarantee Clause with regard to policy setting initiatives, but that implementation decisions are reserved for legislative bodies) [hereinafter Eule, Judicial Review].

(14) Eule, Judicial Review at 1510-11.

(15) The "[r]eferendum is the right of the people to have an act passed by the legislative body submitted for their approval or rejection." City of Coral Gables v. Carmichael, 256 So. 2d 404, 411 (Fla. 3d D.C.A. 1972).

(16) Id.

(17) Initiatives, referenda, recalls, and other forms of direct democracy are generally referred to as a plebiscite.

(18) See generally Fla. Const. (1838).

(19) See generally Fla. Const. (1865); Fla. Const. (1868).

(20) Florida Land Co. v. City of Winter Springs, 427 So. 2d 170, 172 n.5 (Fla. 1983) (noting that "initiative and referendum began to gain popularity through the states around the turn of the century [and] ... provision for its use has seen increased inclusion in state constitutions and local government charters").

(21) Id. at 173 (citing Fla. Const. art. XVII [section][section] 1-4; art. IX, [section] 6; art. VIII; art. III, [section] 21 (1885)).

(22) Id. at 173.

(23) Fla. Const. art. IV, [section] 5(a) (emphasis added).

(24) Grapeland Heights Civic Ass'n v. City of Miami, 267 So. 2d 321, 324 (Fla. 1972); see also Holzendorf v. City of Jacksonville, 606 So. 2d 645 (Fla. 1st D.C.A. 1992) (stating that "[u]nder the Constitution, the phrase 'as provided by law' means as passed 'by an act of the legislature'"); Broward Cty. v. Plantation Imports, Inc., 419 So. 2d 1145 (Fla. 4th D.C.A. 1982) (same); Fla. AGO 2009-22 (opining that "the terms 'law' or 'by law' means an enactment of the State Legislature, not a municipality, county, or any other political body").

(25) Florida Land Co., 427 So. 2d 170, 17273 (Fla. 1983) (emphasis supplied); see also Holzendorf, 606 So. 2d at 648.

(26) Fla. Stat. Chs. 97 through 106 are collectively known as the Florida Election Code. Fla. Stat. [section] 97.011 (2009).

(27) The Florida Constitution reserves to the people "[t]he power to propose the revision or amendment of any portion or portions of this constitution by initiative." Fla. Const. art. XI, [section] 3. To do so, a petition containing the proposed amendment must be circulated and signed by a specified number of people. If those signatures are obtained (and certain other conditions are met), then the proposal can be placed before the electorate for ratification during the next general election. Fla. Const. art. XI, [section][section] 3 and 5.

(28) See Fla. Stat. [section][section] 100.211-100.315 (2009).

(29) Fla. Stat. [section][section] 171.0413(2) and (4) (2009).

(30) Florida courts have upheld the practice of providing for citizen initiatives and referenda in local government charters. Fla. Land Co., 427 So. 2d at 173; Ennis v. Town of Lady Lake, 660 So. 2d 1174 (Fla. 5th D.C.A. 1995); Carmichael, 256 So. 2d 404.

(31) Charter of the City of Boca Raton, art. VI, [section] 6.01.

(32) Charter of the City of Boca Raton, art. VI, [section][section] 6.02 and 6.03.

(33) Fla. Stat. [section] 125.64.

(34) Fla. Stat. [section] 125.64(2).

(35) Fla. Stat. [section] 166.031.

(36) "The power of initiative and referendum may be conferred by the sovereignty upon a municipality with respect to any matter legislature or administrative, with the realm of local affairs; and often the power, as conferred, is extensive, including all ordinances and resolutions and practically all actions that might be taken by a municipal council." Barnes v. City of Miami, 47 So. 2d 3, 4 (Fla. 1950).

(37) Holzendorf, 606 So. 2d at 646.

(38) Id. at 646-47.

(39) Id. at 647.

(40) Id.

(41) Id. at 648 (emphasis added).

(42) Id. at 649.

(43) Fla. Const. art. IV, [section] 5(a).

(44) "A law that operates universally throughout the state, uniformly upon subjects as they may exist throughout the state, or uniformly within a permissible classification is a general law." Department of Business Regulation v. Classic Mile, Inc., 541 So. 2d 1155, 1156 (Fla. 1989). "[A] special law is one relating to, or designed to operate upon, particular persons or things [while] a local law is one relating to, or designed to operate only in, a specifically indicated part of the State...." Id. See also Lawnwood Medical Center, Inc. v. Seeger, 990 So. 2d 503 (Fla. 2008). The Florida Constitution also defines a special law as either a special law or local law. Fla. Const. art. X, [section] 12(g).

(45) Advisory Opinion to the Governor --1996 Amendment 5 (Everglades), 706 So. 2d 278, 281 (Fla. 1997) (citing Gray v. Bryant, 125 So. 2d 846 (Fla. 1960)).

(46) Fla. Hospital Waterman, Inc. v. Buster, 984 So. 2d at 486.

(47) Williams v. Smith, 360 So. 2d 417, 419 (Fla. 1978); Gray, 125 So. 2d at 851.

(48) St. John Medical Plans, Inc. v. Gutman, 721 So. 2d 717, 718-19 (Fla. 1998); Williams, 360 So. 2d at 420.

(49) Williams, 360 So. 2d at 419 (citing Fla. Const. art. II, [section] 8(d)) (emphasis added).

(50) Id.

(51) Id.

(52) Id. at 420.

(53) Id.

(54) Hometown Website FAQ, http://www. floridahometowndemocracy.com/questions.htm; see also Letter from Lesley Blackner to FIEC Conference Members, dated Oct. 7, 2008, http:/edr.state.fl.us/ conferences/constitutionalimpact/.../ Lesley%20Blackner%20Letter%20October%202008.pdf.

(55) Williams, 360 So. 2d at 420 n.5; see also Everglades, 706 So. 2d at 282 (reviewing pre-election publicity and promotion materials to determine voter intent).

(56) See Advisory Opinion re Land Use Plans, 938 So. 2d 501 (Fla. 2006)

(57) Id.

(58) Vote Yes 4 Florida Hometown Democracy, http://www.floridahometowndemocracy.com/questions.htm.

(59) Id.

(60) Vote Yes 4 Florida Hometown Democracy, Sample Letter 1, http://www. floridahometowndemocracy.com/floridaresources.htm.

(61) See Everglades, 706 So. 2d at 282 (ruling that "the words and terms of a Constitution are to be interpreted in their most usual and obvious meaning, unless the text suggesting that they have been used in a technical sense. The presumption is in favor of the natural and popular meaning in which the words are usually understood by the people have adopted them") (citing City of Jacksonville v. Continental Can Co., 151 So. 488, 489-90 (Fla. 1933)).

(62) The second petition required unanimous approval by the city commission of any plan or plan amendments that affected five or fewer parcels of land. The third and fourth petitions required that community redevelopment plans and changes to zoning regulations governing building heights could not be adopted without referendum approval, also as provided by Fla. Stat. [section] 166.031 or by the city charter or as otherwise provided by law. Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144, 1147-48 (Fla. 2d D.C.A. 2006).

(63) Id. at 1147.

(64) Id. at 1148-49.

(65) Notably, Fla. Stat. [section] 163.3167(12) simply places an exception on local initiative and referendum procedures by limiting their application to when the local government decision affects six or more parcels. Unfortunately, St. Pete Beach could give the misleading impression that Ch. 163 provides for referenda on comprehensive planning matters when it only provides an exception. See Barnes v. City of Miami, 47 So. 2d 3, 4 (1950) (stating that "where the power of initiative is given by the legislature it will be generally held to extend to all matters of local concern, unless some matters are expressly or impliedly excluded from its operation by exceptions contained in the charter, the general statutes of the state, or constitutional provision").

(66) Fla. Stat. [section] 100.031.

(67) Fla. Stat. [section] 163.3184(15)(a) ("The adoption of a comprehensive plan or plan amendment shall be by ordinance.").

(68) See Fla. Stat. [section][section] 125.66-68 (county ordinances); see also Fla. Stat. [section] 166.031 (municipal ordinances).

(69) Fla. Stat. [section] 100.371 requires, inter alia, that the FIEC prepare a financial impact for each proposed constitutional revision or amendment that provides "the estimated increase or decrease in any revenues or costs to state or local governments resulting from the proposed initiative."

(70) Advisory Opinion to Attorney General re Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans, 963 So. 2d 210, 214 (Fla. 2007).

(71) The court was limited to deciding "whether the [FIS] [was] clear, unambiguous, consist[ed] of no more than seventyfive words, and [was] limited to address the estimated increase or decrease in any revenues or costs to the state or local governments." Id. at 215.

(72) The second FIS stated that "it is probable that local governments will incur significant costs (millions of dollars statewide) with actual costs dependent upon the frequency and method of referenda." Advisory Opinion to Attorney General re Referenda Required For Adoption and Amendment of Local Government Comprehensive Land Use Plans, 992 So. 2d 190, 192-93 (Fla. 2008). The third FIS stated that "local governments will incur additional costs ... [but] the amount of such costs depends upon the frequency, timing, and method of the referenda." Advisory Opinion to Attorney General re Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans, 14 So. 3d 224, 228 (Fla. 2009).

(73) Advisory Opinion re Land Use Plans, 14 So. 3d at 228.

(74) The FIEC and Florida Supreme Court both understood that they could only speculate on how often Amendment 4 referenda would occur. The Florida Supreme Court was correct in avoiding any assumptions in that regard. The FIEC was also correct by stating that the costs of Amendment 4 to local government will "depend[] upon the frequency, timing, and method of referenda." Advisory Opinion re Land Use Plans, 14 So. 3d at 228.

However, the question of financial impact proved difficult to answer, not because it was impossible to know how many planning proposals will coincide with the general election, but because nobody knows what method the referenda will follow.

(75) Fla. Const. art. IV, [section] 5(a); see also Fla. Stat. [section] 100.031 (the general election is for selecting "a successor to each elective federal, state, county and district officer whose term will expire before the next general election and, except as provided in the State Constitution, to fill each vacancy in elective office for the unexpired portion of the term").

(76) Fla. Stat. [section] 100.211 provides that "the laws governing the holding of general election are applicable to bond referenda...." Similarly, Fla. Stat. [section] 100.261 states that "[w]henever any bond referendum is called, it shall be lawful for any county, district, or municipality to hold such bond referendum on the day of any state, county, or municipal primary or general election, or on the day of any election of such county, district, municipality for any purpose other than the purpose of voting on such bonds.... However, nothing in this section shall prohibit the holding of a special or separate bond referendum." Also, municipal charter amendments are placed "to a vote of the electors at the next general election." Fla. Stat. [section] 166.031.

(77) This is not to suggest that the FIS was wrong and should have been rejected. It may be argued that so long as the FIS is clear and stated in 75 words or less, it meets the standard of review, even if it is wrong. See Advisory Op. to Atty Gen. re Public Protection from Repeated Medical Malpractice, 880 So. 2d 686 (Fla. 2004).

(78) Everglades, 706 So. 2d at 281-82 (citing In re Advisory Opinion to the Governor, 132 So. 2d 163, 169 (Fla. 1961) (internal citations omitted).

(79) The legislature has also limited the application of those provisions to decisions that affect more than five parcels of land. See Fla. Stat. [section] 163.3167(12). As a result, it might be argued that plan amendments affecting five or less parcels would be temporarily restricted because referenda on such amendments are currently forbidden under Florida law.

(80) Advisory Opinion re Land Use Plans, 938 So. 2d at 504.

J. Michael Marshall is a land use and real estate attorney with the firm of Siemon & Larsen, P.A., in Boca Raton. Mr. Marshall earned a B.S. in civil engineering, cum laude, from North Carolina State University, an M.B.A., magna cum laude, from the University of North Carolina, Wilmington, and received his J.D., cum laude, from The Florida State University College of Law. Mr. Marshall maintains a balanced practice of public and private sector representation in matters that involve land use planning, land development and related real estate issues. He thanks Charles Siemon and Wendy Larsen for their constant guidance and support.

This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Brian J. Felcoski, chair, and William P. Sklar and Kristen Lynch, editors.
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Title Annotation:Real Property, Probate and Trust Law
Author:Marshall, J. Michael
Publication:Florida Bar Journal
Date:Nov 1, 2010
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