Greenberg Traurig, LLP
 
PUBLICATIONS
ALERTS
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995

 

 

GT Alert

A Proposed New Amendment Threatens Florida’s Land Use Process

September 2003
By Peter Cocotos, Julie Kendig-Schrader, and Alfred Malefatto

Click for information on Adobe Acrobat.  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.."

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.