A Proposed New Amendment Threatens Florida’s Land Use Process
September 2003
By Peter Cocotos, Julie Kendig-Schrader,
and Alfred Malefatto
View or download the PDF version of this Alert
here.
A new political action committee is circulating a petition to bring to
the ballot a proposed amendment to Florida’s Constitution which would require
citizen approval of all comprehensive land use plans and plan amendments.
The goal of the Florida Hometown Democracy Political Action Committee (the
"Committee") is to gather 489,000 voter signatures to place its amendment
on the November 4, 2004 ballot.
| "The net effect of the proposal
on both local government and the development community could be
disastrous, and could potentially have a crippling effect on local
economies.." |
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Established by attorneys Linda Blackner, West Palm Beach, and Ross Burnaman,
Tallahassee, the Committee, based in Volusia County appears to be well organized,
and is operating a website at www.FloridaHometownDemocracy.org.
The Committee claims that it has the resources necessary to gather enough
signatures to place the amendment on next year’s ballot. The group is organizing
2,000 to 3,000 individuals to gather 50 signatures a month for the next
year. The group is also counting on support from organizations and private
citizens to complete the petition drive. Unfortunately, the amendment makes
for a good sound-bite, and once it is on the ballot, it may pass. The potential
ramifications of this amendment with respect to costs to local governments
and taxpayers; the protection of private property rights; the uniform and
well established land use process in Florida; and ultimately, the efficacy
of the representative form of government, are enormous.
The proposed amendment states as follows:
Ballot Title : Referenda required for adoption and amendment of
local government comprehensive land use plans.
Ballot Summary: Public participation in local government comprehensive
land use planning benefits Florida’s natural resources, scenic beauty
and citizens. Establishes that before a local government may adopt a new
comprehensive land use plan, or amend a comprehensive land use plan, the
proposed plan or 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.
Under the proposed amendment, decisions that are now made by city and
county governing bodies, after recommendations from professional staff and
multiple opportunities for public input, would be subject to a final decision
by the voters. Referenda involving the entire electorate of the particular
local government would be held at the same time as the general election,
and by special election if necessary, to allow the voters to determine if
local comprehensive land use plans should be adopted or if they should be
amended. According to the Committee, this would require an average of two
votes by the entire electorate every year, with at least 5 proposed changes
to be considered by the voters. These estimates may be vastly understated.
On average, there are 12,000 comprehensive plan amendments adopted annually
throughout Florida. Without distinguishing comprehensive plan text amendments,
small scale amendments for parcels less than 10 acres, or large scale amendments,
the proposal, if passed, could require voters to consider significantly
more than five proposed changes in each of the two (or more) election cycles.
As quoted in the Tampa Tribune, the Secretary of the Florida Department
of Community Affairs, Colleen Castille, has noted that this proposal would
be "unwieldy." We believe this to be an understatement.
Chapter 163, Florida Statutes, Part II, the Local Government Comprehensive
Planning and Land Development Regulation Act, F.S., (the "Act") currently
governs the process and critiera for the creation of a comprehensive plan
or the amendment of a comprehensive plan. The Act provides multiple opportunities
for public input and appeal of local government comprehensive plans and
plan amendments, with specific time frames for certain actions to take place.
In the event that the proposed constitutional amendment is adopted, it would
likely result in a disorganized and confusing land use process.
Under the present statutory scheme, in order to amend a comprehensive
plan, local governments must consider environmental impacts, traffic analysis,
future land use projections, sanitary sewer, solid waste, stormwater management,
water resources, recreation and open space, transportation, and numerous
other criteria. The law also requires review and approval by the Department
of Community Affairs, regional planning councils and other state agencies
to determine compliance with the all applicable criteria. There are specific
standards and criteria in place for the evaluation of a comprehensive plan
amendment or the creation of a comprehensive plan. Public and private sector
land use professionals, and property owners, are aware of the framework
in which any requested land use plan amendment will be considered, and the
process contains numerous opportunities for public participation.
If the proposed constitutional amendment passes, voters will have final
approval over specific land use matters, replacing the well-organized representative
local government process first established in the 1985 Growth Management
Act. Of specific concern are comprehensive plan amendments which may be
required for affordable housing, rehabilitation centers, the location of
utilities or waste disposal sites, and other land uses which are necessary
to the appropriate functioning of our society, but deemed undesirable by
some community groups. The net effect of the proposal on both local government
and the development community could be disastrous, and could potentially
have a crippling effect on local economies.
In our traditional representative form of democracy, an elected official’s
job is to balance competing public and private interests and to accommodate
growth and change in a sensible and reasonable manner. The duty of the public
is to exercise the rights provided to participate in, and influence, local
land use decisions. Elected officials serve to protect the rights of all
parties, including private property owners, current residents and future
residents. Instead of dealing with experts at the city and county levels,
and with elected officials whose job it is to be familiar with these items,
if the proposal passes, developers will be involved in a public relations
battle to win the hearts and minds of the electorate. Representational democracy
will have been replaced with a system that only promises broader participation,
but does not improve competency, and in fact may limit due process.
Ultimately, the proposed amendment will only serve to make the entire
land use process longer, more expensive, and much more unpredictable. The
proposed amendment threatens to cripple the construction industry, which
has been a bright spot in a sluggish economy, and to drive up the cost of
housing. For these reasons, all concerned should closely follow the progress
of the petition drive and proposed referendum. Greenberg Traurig will be
following and participating as appropriate in the debate on this important
issue, which potentially will affect many of our clients.
© 2003 Greenberg Traurig
Additional Information:
For more information, please review our Environmental Practice description,
or feel free to contact one of our attorneys.
This GT ALERT is issued for general purposes only and is not intended
to be construed or used as legal advice. Greenberg Traurig attorneys provide
practical, result-oriented strategies and solutions tailored to meet our
clients’ individual legal needs. The Firm’s responsive approach to client
service often cuts across legal subject matter, applying the right experience
and resources to provide cost-effective solutions.
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