Fla Supremes Turn a Blind Eye to Costs of Hometown Democracy Amendment

In Advisory Opinion re: Referenda Required for Adoption and Amendment of Local Comprehensive Land Use Plans, the Florida Supreme Court rejected a second proposed financial impact statement for the proposed Hometown Demagoguey amendment.

The gist of the Court's complaint was that the impact statement assumed that there would have to be a significant number of special elections:

As drafted, the revised financial impact statement would mislead voters into
believing that implementation of the amendment will require the expenditure of
millions of dollars. Such an inference is patently contrary to the purpose of
the amendment, which is to limit the number of amendments to local comprehensive
land use plans.

Of course, the courts statement of the "purpose" of Hometown Demagoguey is simply not true: the purpose is not to limit the number of amendments, but to subject them to referenda. Limiting the number of amendments is not a stated purpose - at least it's nowhere in the ballot title and summary.

A majority of the Court (at least this time - see later opinion on the "counter-amendment") seem dedicated to seeing this as a "good government" reform- there seems to be no recognition of the highly problematic and anti-democratic effects it will have. There's no recognition of the number of state-mandated amendments that will have to be processed (many on an annual basis) and voted on, no recognition that there is a right to seek plan amendments, no recognition that each amendment might require its own place on a ballot, no recognition that there aren't twice a year elections in most jurisdictions.

4th DCA - No Repeal Referendum for Small Scale Amendment and Rezoning (take that Blackner!)

In City of Lake Worth v. Save Our Neighborhood, the 4th DCA gave Hometown Demogogcy founder Leslie Blackner a black eye when it rejected the lower court's decision that allowed a recall referendum to be initiated against city ordinances that adopted a small-scale plan amendment and rezoning.

At issue was Section 163.3167(12), which prohibits any initiative or referendum for plan amendments affecting five or fewer parcels. The statute was adopted specifically to ensure that small scale plan amendments would not be subject to referendum when the status of those amendments as legislative versus quasi-judicial was still at issue.

Ms. Blackner and Ross Burnaman misled the Florida Supreme Court into error in the Hometown Democracy ballot summary case, and Burnaman helped with the 2d DCA's St Pete Beach debacle, by arguing that the prohibition of some initiatives regarding plan amendments indicated legislative approval of all others (though this was clearly NOT the intent).

Now Ms. Blackner argued that the statute didn't prohibit using a referendum to repeal a small scale plan amendment and rezoning on the basis that parcels other than those subject to the amendment and rezoning were "affected" by it. Somehow, they got the trial court to buy this clearly ridiculous argument, which would effectively gut the restriction totally. The Fourth didn't buy it and overturned the circuit court.

Supreme Court Totally Reverses Strand on Rehearing

In Strand v. Escambia County, (opinion on rehearing), the Florida Supreme Court reconsidered its earlier decision and reversed it entirely.

Under the new decision, local governments, school boards, special districts, etc., can issue bonds that may be repaid in all or part with ad valorem tax monies without a referendum approval so long as the covenants clearly state that the ad valorem taxing authority is not being pledged to pay the bonds; that is, that the bondholders cannot sue to force the government to raise or levy ad valorem taxes to repay the bonds.

In separate opinions, it validated bonds issued by Community Redevelopment Agencies that are payable with tax increment financing funds City of Parker v. State, and Bay County v. Town of Cedar Grove. The Cedar Grove case is particularly interesting because the tax revenues involved are levied only be the County, but fund a CRA within a city that doesn't levy ad valorem taxes (go figure!)

I'm sure there will be LOTS of analysis in coming days, so I just wanted to flag the case right away. It certainly involves the most significant reversal on rehearing by the Fla Supreme Court I've ever read.

Fla Supremes Make REALLY Sure We'll Have Lots of Special Assessments - No Bonds for TIFs w/out Referendum

In my "local government law" class in law school - and in studying for the bar - I learned that you can't pledge ad valorem tax revenues for bonds without a referendum. I also learned the exception - you could pledge TIF revenues or combinations of revenues, so long as the core "ad valorem" taxing power was not implicated in the pledge.

Not any more. In Strand v. Escambia County, the Florida Supreme Court drove a stake into the heart of the Miami Beach case that established the "TIF exception" and loosed an arrow (not yet struck) into the "combination of revenues" exception established in the Sarasota County School Board case.

Not surprisingly, a local government had taken the TIF exception (carved out for CRA type improvements) to an extreme, funding a major road improvement ($135M) for Perdido Key solely from TIF-backed bonds. The TIF "area" is the "Southwest Escambia County Improvement District"-- which does NOT appear anywhere in the opinion as an MSTU/MSBU; instead it appears that the County tried to use its home rule powers to simply create a TIF-type area from whole cloth to segregate general-fund ad valorem tax dollars into the bond payments. [I'm sure I'll here from the principles if I've got this wrong or if the Court missed it.] The Court invalidated the bonds as being in violation of Article VII, s. 12.

The Court did a very scholarly job of reviewing the bad history of ad valorem-backed bonds in Florida and the two main "exception" cases. It also discussed (cogently) the Volusia County case that held that the County couldn't pledge a hodge podge of non-ad volorem revenues to back a bond if it appeared that the county might have to raise ad valorem taxes to replace the pledged revenues. The Court concluded that the Miami Beach and Sarasota School Board cases went too far and reeled them back in.

So, in the span of two weeks we find out that local governments get huge discretion to issue bonds backed by special assessments and have little or no discretion to issue bonds backed by ANY kind of ad valorem revenues. Two results are pretty much automatic:

1) HEELLLOOOO MSTUs and Special Districts with special assessments. I'm guessing we'll see lots and lots of these because its the only way left to raise funds to pay for infrastructure.

[Well, maybe we won't see so many in the short run. After over 25 years of Republican preaching about "no new taxes" and government waste, the citizenry thinks that it can get better roads and other infrastructure for free. It's all new development's fault, just use impact fees to do it, and if they don't work, screw around with concurrency to create moratoria and then make them pay for everything just to be able to do anything. In that climate, we probably won't see cities and counties establishing responsible ways to pay for infrastructure until they lose a few major cases.]

2) Bye, bye CRAs!!! No bonding for TIF revenues from CRAs, so why bother - straight into special assessment districts. First they lose the power to condemn for redevelopment, and now they lose the ability to bond TIF dollars - the two useful functions of CRAs are now pretty much toast.

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.

Initiative is Not Available to Adopt/Amend LDRs! and Charter County Plans Can Supercede City's

In Seminole County v. City of Winter Springs, here's the opinion, the 5th DCA held that a county charter provision that over-rode the City's attempts to plan in annexed areas did not violate the "single subject" rule.

Here's what's interesting: the argument that won below was that the provision in the charter that held that the boundary could be adjusted only by an ordinance adopted by the commission "over rode" the charter's initiative provision -- which allows adoption of ordinances by the electorate. This "extra effect" was held by the trial court to violate the single subject.

Here's what's important: the Court held that Chapter 163's provisions for the adoption of land development regulations by the "local governing board" and definition of "local governing board" as the county commission means that the use of initiative to amend or adopt land development regulations is inconsistent with state law, and therefore prohibited!!!!!

So - a TON of local governments (especially coastal cities) have adopted restrictive charter amendments that required referenda for plan amendments or rezonings that increase density or intensity. Under the 5th's rationale, these are now illegal and unenforceable.

A blow for better planning and land use regulation and a swat at knee-jerk psuedo-democracy.