LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

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2d DCA OK's Local Referenda for Plan Amendments (a win for blind populism vs. good planning)

In a decision that is REALLY BAD for good planning, and which didn't even address the 5th DCA's recent comment on the issue, the 2d DCA issued this opinion in Citizens for Responsible Growth v. City of St Pete Beach, overturning the trial judge's determination that imposing a referendum requirement for plan amendments conflicted with the statutory process set forth in Chapter 163.

OK, major disclosure: I'm directly involved in parallel litigation against CRG on the parallel issue of whether they can use a referendum process already in the city charter to repeal a plan amendment, and I've made the arguments rejected by the 2d DCA to the same trial judge.

Let's start with what the court got right. It found a) that the city had standing to bring up the constitutionality of proposed charter amendments, and b) that the trial court had jurisdiction to consider them prior to the election. Despite years of having this put to bed, the CRG had argued that the city couldn't fight this issue, and that it had to wait until after the election anyway.

The critical issues were whether the amendment procedures provided in the statute preempted the imposition of additional local requirements. In particular, the growth managment act has a "sole process" provision, and the question was whether it really means what it says. The counter was that there is a prohibition in the chapter against using referenda for plan amendments that affect 5 or fewer parcels, or for development orders. The court interpreted this as implicitly authorizing a procedure for using referenda for amendments that involve more than 5 parcels, and that referenda therefore were somehow authorized as part of the statutory process.

This is really, really weak logic when you think about it, especially in light of the purpose and needs of the statute and planning. The court ignored a slew of absolute real world problems that were also ignored by the Florida Supreme Court in approving the Hometown Demogagy amendment.

First, local governments are REQUIRED to update their plans annually for capital improvements and other issues. Roads, sewer lines, and other public facilities cannot be built if they are are not consistent with an adopted plan. Therefore, requiring all general plan amendments to be approved by referendum not only risks major disruption, it interferes with multiple functions of governments, including both executive and legislative functions.

Second, decisions (pro or con) on plan amendments must be based on data and analysis under the statute, not just on raw political preference. That is, while plan amendments are legislative, they also are constrained by actual (as opposed to assumed) facts and data. The amendment process completely, utterly and totally destroys that critical basis for the validity of the plan and planning in general. Instead, it renders the plan nothing more than a popularity forum to to allow existing residents to convert public property (like available capacity in a public street) to their private use.

The court simply didn't consider the second issue and got the first issue dead wrong. It believed the nonsensical position of the CRG that the Administration Commission could sanction a local government for not adopting plans and that the regional planning council could adopt any missing elements. Well, folks, that just BS, a blatent misrepresentation of the law by the CRG, and hopefully will be fixed on reconsideration. Those parts of the statute only applied to the original plan adoptions under the statute, NOT to amendments to plans that already had been found in compliance.

So it all comes down to public plebescites on land use. Let's be clear: if planning is by referenda, there is no planning. There's just saying no to change, regardless of the needs of the larger community and whatever "rights" might be left to landowners.

And some will say this is really tacky (if not inflammatory) but the reason we have a constitution and limits on direct democracy is that voting or democratic processes don't generally promote democracy: remember always that Hitler was elected democratically.

Well, there are some other fights on this issues still to come. For example, article i, section 5 of the constitution requires that referenda be as "provided by law." That means STATE LAW, not a local charter. Well, there's no explicit provision for conducting referenda on plan amendments that you can find anywhere in the Florida Statutes, and to my knowledge, there's no special act authorizing St Pete Beach to have such referenda.

So, anyway, the forces of demogagy, bad planning, and the conversion of public infrastructure to the private use of existing residents won this time. Too bad -- at some point they're just asking for the whole process to be gutted or legislatively directed to sidestep all this fascistic psuedo-democracy.

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