Land Use and Local Government Law and Litigation

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Whoops - 4th Changes its mind - city can sell property without required referendum

Several months ago, I posted a reference to a decision in which the 4th DCA overturned an action by the City of Pompano Beach. A charter provision protected recreationally designated lands from sale without a referendum. The city had circumvented the charter provision by redesignating recreational land by ordinance and then selling it without a referendum.

In its original decision, the 4th held that the intent of the charter was paramount, and allowing the commission to go around it by simply changing the designation was inconsistent with the intent of the charter.

The City asked for reconsderation and in this opinion, released on the 17th, the 4th changed its mind. The logic: the Court read the fact that there was another way to sell non-designated lands, and "read together" the provisions to make the referendum optional at the hands of the City Commission. The new decision holds:

We are not persuaded by the appellant that llowing the City to redesignate and
then transfer this property makes the referendum requirement eaningless. The
drafters of the charter may well have intended to give the City two methods for
disposing of section 253(f) property, depending on the circumstances. For
example, if the City owned a golf course which it wanted to sell, but knew that
the issue would be controversial, it would have the option of submitting the
issue to an election. On the other hand, if the City owned a small parcel
which had been designated a recreational facility, but was no longer being used,
and the disposition of it was not controversial, the City would have the option
of not going to the expense and delay involved in an election. This
interpretation gives effect to both provisions

The problem with this analysis is that the City Commission ALWAYS has the power and discretion to put one of its acts before the citizens in a referendum. The court's revised interpretation makes the referendum process suplussage and completely up to the discretion of the Commission. The ONLY reason for the referendum requirement was to limit the City Commission's authority to sell designated properties.

The court had it right in the first opinion, where it held:

We are unable to reconcile the City’s position, which is that it can avoid
the charter requirement of a referendum, by merely redesignating and then
transferring, with several statutory construction principles. First, the court
should consider the legislative intent. St. Mary’s Hosp. v. Phillipe, 769 So. 2d
961 (Fla. 2000). The obvious intent of section 253(f) is to require a referendum
for the transfer of this property.

Second, courts should avoid interpretations which render parts of a statute meaningless. Unruh v. State, 669 So. 2d 242 (Fla. 1996). In this case the City’s interpretation makes section 253(f) meaningless.

Third, courts are obliged to harmonize conflicting provisions if it is possible to do so. M.W. v. Davis, 756 So. 2d 90 (Fla. 2000). The two provisions can be harmonized, and both given effect, by holding that property described in section 253(f) cannot have its designation changed by resolution in order to transfer the property without a referendum. That would give meaning to the provision requiring a referendum for section 253(f) property, but would not make the provision allowing change in designation by resolution meaningless. See Kiesel v. Graham, 388 So. 2d 594 (Fla. 1st DCA 1980).

We therefore conclude that the charter does not authorize the city to
avoid the referendum process for property described in section 253(f) by merely
redesignating the property for the purpose of transferring it. The summary
judgment is accordingly reversed.

One can only assume that the pro-se representation by the plaintiff/appellant in this case finally fell to the superior firepower of Holland & Knight and Susan DeLegal (no slam on them). But the result is a win for the unfettered discretion of local legislatures even in in the face of charter provisions clearly intended to limit that discretion. One loss for efforts to restrain the unfettered and often unidisciplined actions of local governments.

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