September 16, 2010

Amendment 4; Is it really "Vote for Everything?"

This is the first of a series investigating Amendment 4.  Future articles will address statements and claims made by both the supporters and the opposition to the amendment.

Today, we examine the claim the Florida Supreme Court ruled that Amendment 4 dictates that we "vote on everything."

According to Ballotpedia. this is the current wording on the ballot:
Amendment 4: Referenda required for adoption and amendment of local government comprehensive land use plans.

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.
On the face of it, it means that the city wouldn't be able to change an industrial district, like say, the marinas along the Miami river, into a residential area.  They'd have to write up a referendum and put it on the ballot, and let the voters decide if the zoning can change.

Real world examples of the kind of radical changes to zoning include the City of Miami's attempt to allow a condominium project to be built on the grounds of Mercy Hospital, or the numerous attempts to change the Urban Development Boundary to allow shopping centers to be built in the Everglades.

Citizens for Lower Taxes claim that the amendment would require citizens to "Vote on Everything," a stark contrast to Florida Hometown Democracy's claim that it would only come up a few times each year.

According to the Citizens for Lower Taxes website:
The Florida Supreme Court  plainly indicates that Amendment 4 would trigger votes not simply on all land use items, but, in fact, on every change to a local government's comprehensive plan. Citing statute, the court points out that Amendment 4 would lead to referenda on:

"A capital improvement element; a future land-use plan element; a traffic circulation element, a sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element; a conservation element; a recreation and open space element; a housing element; a coastal management element; an intergovernmental coordination element; a transportation element; an airport master plan; a public buildings and related facilities element; a recommended community design element; a general area redevelopment element; a safety element; a historical and scenic preservation element; an economic element ..."
The problem is, that's not actually what the finding says.  Sure, that entire section is a verbatim quote, it's just taken entirely out of context. The list is actually part of existing Florida State Stature 163.3177, "Required and optional elements of a comprehensive plan."

Back in 2005, the Court was asked to rule on whether or not Amendment 4 followed the proscribed template per the dictates of the Florida State Constitution.
The Attorney General petitions this Court for an advisory opinion regarding the validity of a proposed amendment to the Florida Constitution submitted by Florida Hometown Democracy, Inc., and the accompanying Financial Impact Statement submitted by the Financial Impact Estimating Conference.

...the Court limits its inquiry to two issues: (1) whether the amendment violates the single-subject requirement of article XI, section 3, Florida Constitution, and (2) whether the ballot title and summary violate the requirements of section 101.161(1), Florida Statutes (2003).
The Court was addressing a specific complaint about  the amendment's ballot wording;  specifically, the first line:
Public participation in local government comprehensive land use planning benefits the conservation and protection of Florida’s natural resources and scenic beauty, and the long-term quality of life of Floridians.
The court writes:
"The first sentence of the ballot summary in this case is misleading... because it focuses the voter on “scenic beauty” and “natural resources,” while local comprehensive plans include multiple components, many of which do not involve strictly environmental or aesthetic considerations.  Section 163.3177(6)-(7), Florida Statutes (2004), sets out the required and optional elements of comprehensive plans, which include..."
In other words, the Court is addressing the fact that the wording of the first sentence indicates that the amendment is to allow us to vote on "scenic beauty" and "natural resources,"  when the reality is that they rarely come into play in most comprehensive plans.  It is not stating that the amendment requires a referendum on each and every one those elements in ss 163.3177, just that many of those elements would be included in a referendum to change a local comprehensive plan. That being the case, saying it was for "scenic beauty" and "natural resources" is misleading.  On that ground, they ruled against the amendment.

But that's the 2005 ruling.  In 2006, the court found in favor of the revised wording (see top of page) of the amendment in SC06-161:
We conclude that the ballot title and summary sufficiently explain the chief purpose of the 2005 Proposed Amendment and do not mislead the public. 
So the Florida Supreme Court says it's Constitutional. 

But that wasn't the complaint; Citizens for Lower Taxes maintains that the amendment means we'll have to "vote for everything:"
Voters will be asked to vote not only on big development projects but also on all minor or technical changes to their local comprehensive plan.
But what does the Supreme Court actually say about what the amendment will lead people to vote on?
The Act does not provide a descriptive definition of a “comprehensive plan,” but instead defines the term as “a plan that meets the requirements of ss. 163.3177 and 163.3178.”  § 163.3164(4), Fla. Stat. (2005)
And what does that mean, exactly?  The Court clarifies:
The 2005 Proposed Amendment defines a “local planning agency” as “the agency of a local government that is responsible for the preparation of a comprehensive land use plan and plan amendments after public notice and hearings and for making recommendations to the governing body of the local government regarding the adoption or amendment of a comprehensive land use plan.” 
In other words, the Court is saying that the Amendment means that voters will be asked if the land can be used for a purpose, but that the details that enable that purpose remain in the hands of the local government.

In 2005, the outdated ruling favored by the amendment's opponent, puts it even more clearly:
...the proposed amendment at issue in this case alters only one step in an already established process.  It does not give the public the power to establish policy, collect funds, administer those funds, or adjudicate liability.  In fact, the statutory scheme already in place allows local governments to utilize a referendum process in regard to a plan amendment if the amendment affects more than five parcels of land.

Contrary to what Citizens for Lower Taxes claims on its website, the Florida Supreme Court is not saying that Amendment 4 means we'll have to "Vote on Everything" at all.  Quite the opposite, it finds that existing government agencies will still decide what goes into the comprehensive land use plan.  It just means that the voters, and not local governments, decide if the comprehensive change goes into effect.


  1. It is refreshing to see someone actually trying to look at the impact of the Amendment by reading what the Supreme Court of Florida has held. Unfortunately, your analysis misses the main point.

    The quotes from the 2006 Supreme Court decision actually demonstrate that the Amendment will be far broader than the proponents suggest.

    As you know, the Amendment would require a vote on all changes to a "comprehensive land use plan." The Court concluded that a "comprehensive land use plan" as used in the Amendment text is essentially "comprehensive plan" under state law. That is where the problem arises.

    A comprehensive plan under the terms of Section 163.3177 and 163.3178 is not a "map" -- it is instead typically hundreds of pages of text, tables, etc.

    For example, a required element of all plans is a capital improvements element, which the statute requires to be updated on an annual basis. Does anyone look forward to voting on whether a roadway project will be funded in two years rather than three?

    Please take a look at the statute.

  2. Lee, I've read the statue. I've read the Bill. I've read all the Court rulings.

    So far, the only misinterpretation I have found is on the part of those fighting Amendment 4, and a lot of that misinterpretation verges on outright falsification.

    There are a lot of variables contained within a land use plan, as described in 163.3177. But the only thing voters have to vote on under Amendment 4 is a change in the purpose of the plan. When you change the purpose, variables within it will change, and what the court found in 2005 was that the original wording was misleading. In 2006, the proposed wording was changed, and the court ruled that it was no longer misleading.

    And then we address your road project example-

    The bottom line is that Amendment 4 does not call for voters to vote on proposals such as a roadway project. It only calls for a vote on proposed changes of land use. So unless the roadwork requires that the land on which it is sitting to be changed from its existing usage under the current comprehensive plan, voters won't have anything to vote on.

    I have to wonder what you're reading, because it apparently isn't any of the relevant documentation. Your "road project" example is a typical "strawman" argument; a dishonest move made by someone who can't use actual facts to make their point.

    Lee, if you want to convince me, you'll have to do better than lies and deception; that only leads me to vote the other way.