Amendment 4 / Hometown Democracy Does Require Special Elections. Exhibit A: St. Pete Beach

Supporters of Amendment 4 / Florida Hometown Democracy have repeatedly claimed that while Amendment 4 requires all comprehensive plans and comp plan changes to be put to a vote at "the next regularly-scheduled election", the proposed Amendment 4 "does not require special elections."

This is not true.

The city of St. Pete Beach, Florida learned this the hard way. In 2006, St. Pete Beach adopted Amendment 4 - style land use regulations that require all comprehensive plans and all comprehensive plan changes to be put on the ballot. St. Pete Beach's regulations and Amendment 4 are functionally identical because both require a referendum vote of the people before approval of all comprehensive plans and comprehensive plan changes.

St. Pete Beach residents soon learned that Amendment 4 - style rules DO require special elections, even though the literal language of such regulations does not appear to require them.

How is this possible?

The answer is simple. If a city's next regularly-scheduled election has no contested candidate races, then, as a result of Amendment 4, the only item that would be placed on the ballot would be the comp plan/amendment.

Ordinarily, if a city has no contested candidate races, the city saves money because it doesn't have to hold an election. Under Amendment 4, if a city has no contested candidate races, but if it does have a comp plan or comp plan amendment, then the city is forced to make a choice: either it refuses to put the comp plan/amendment on the ballot, (thus waiting for the next regularly scheduled election in hopes that there will be a contested candidate race), or the city must hold a special election in which the only item on the ballot is the comp plan/amendment.

St. Pete Beach has learned this is not a remote, rare or unique possibility because it has had no contested candidate races in 2009 and 2010, BOTH of its past TWO "regularly scheduled" elections.  Like most cities, the cost of an election is significant:  in St. Pete Beach an election costs roughly $20,000.  County-wide elections can cost $1.0 million.

If St. Pete Beach had had a comp plan/amendment in late 2008 or early 2009, it would have had to either pay to hold a special election to put it on the ballot, or defer to the next "regularly scheduled" election, hoping that the next election would have a contested candidate race that would require holding an election. If St. Pete Beach had waited until 2010, it would have faced the same problem again, since the 2010 election was also uncontested. Thus, the only way to avoid the continual delays would be for the city to pay to hold the "functional equivalent" of a special election.

Fortunately for St. Pete Beach, we did not have a comp plan/amendment to put on the ballot, but if we did, our Amendment 4-style rules would have forced us to pay to hold a special election. In fact, in March, 2010, St. Pete Beach did hold an election in which the only item on the ballot was a change to the city's community redevelopment plan.

Of course, the alternative to paying to hold a special election is to simply do nothing...to let comp plans/amendments sit, to subject them to continual delay. A cynical observer might well wonder whether this is a result that would actually please the anti-development folks, but I choose not to view this debate through such a tainted lens.

Instead, I simply want all Floridians to realize that they should not take at face value the claims of Amendment 4 supporters who are assuring Floridians that their proposed constitutional amendment will not cause their cities to incur the cost of special elections, because, as St. Pete Beach learned, that claim is simply not true.

Click Here to read more analysis of the flaws in Amendment 4, including "Why Comp Plans Should Not be put on the Ballot" and "Amendment 4 Threatens to Undermined Beach Preservation Efforts in St. Pete Beach."

St. Pete Beach Proves Flaws in Amendment 4 / Hometown Democracy

In his May 23rd story "Hometown Democracy Has Its Flaws, But So Does Sprawl", St. Petersburg Times columnist Dan DeWitt was dead wrong to discredit the relevance of St. Pete Beach's costly, tangled morass of lawsuits as an example of the flaws of Amendment 4 / Hometown Democracy. St. Pete Beach's toxic brew of divisive political action committees, warring citizenry and seemingly endless litigation is a direct result of my city's misguided attempt to implement Amendment 4-style land use regulations, and all Floridians should know that similar problems will threaten their cities if Amendment 4 passes in November.

The strongest proof of this comes from Ken Weiss, the attorney whose clients have been suing St. Pete Beach. Weiss recently wrote that the "central issue" in the St. Pete Beach litigation "has been the assertion by my clients that there must be full disclosure in the ballot summaries that the voters are approving the threefold increase in height and density." The ballot summary issue is so important to Weiss' clients that Weiss recently stated that all of the pending lawsuits would be dropped if the city of St. Pete Beach would agree to hold a new election using ballot language of their choosing.

What Weiss refers to is the fact that when St. Pete Beach adopted its local version of Amendment 4 and began putting its comprehensive plans and amendments on the ballot, it was forced under Florida law to summarize those complex, 150-200 page documents in 75-word ballot summaries (a hopelessly impossible task that all Florida cities will be forced to undertake on a regular basis if Amendment 4 passes in November).

When St. Pete Beach put a comprehensive plan on the ballot in 2008, Weiss's clients sued to overturn the election, contending that the 75-word ballot summaries were deceptively unclear. This reveals why comprehensive plans should never be put on the ballot: special interest groups unhappy with the election results can promptly sue, alleging ballot summary deficiencies that cannot possibly be addressed in 75 words or less.  To my knowledge, the Weiss plaintiffs themselves have not put forth their own suggested ballot summaries, and their description in their legal papers of what is missing from the City's 75-word summaries far exceeds 75 words!

This problem is not unique to St. Pete Beach. It is an inherent flaw in Amendment 4 that would impact all of Florida's cities, and this is why Mr. DeWitt is wrong to diminish the relevance of St. Pete Beach to the Amendment 4 debate.

Sadly, lawyers will be the true beneficiaries of Amendment 4-induced litigation. St. Pete Beach's 2010 litigation budget is depleted, even more trials are coming in August and beyond, yet the courts have already rejected many of the plaintiffs' numerous claims that St. Pete Beach's procedures circumvented/violated Florida law.

St. Pete Beach is unique in one respect: when we finally realized how overbroad, costly and unworkable our Hometown Democracy-style system was, we repealed it by an overwhelming majority vote of the people. Unfortunately, if Amendment 4 passes, it will be virtually impossible to repeal. Unlike the people of St. Pete Beach, the people of Florida will not be able to fix their mistake. DeWitt fails to grasp this critical distinction.

In fairness, DeWitt is not the only St. Petersburg Times columnist who has missed the point: Howard Troxler and Politifact have also mistakenly discredited the full relevance of St. Pete Beach to the Amendment 4 debate.

Fortunately, there is time for the Times to take a fresh look at the facts. I hope it does, because Florida deserves to hear the whole truth.

Click Here to read more analysis of the flaws in Amendment 4, including "Why Amendment 4 Does Require Special Elections" and "Amendment 4 Threatens  to Undermine Beach Preservation Efforts in St. Pete Beach."

Mason-Dixon Poll: 61% Approve of Hometown Democracy / Amendment 4

As reported by the Jacksonville Observer on May 12, 2010, a telephone poll of 625 registered voters conducted by Mason-Dixon Polling & Research, shows that 61 percent of voters support Amendment 4/Hometown Democracy, while only 18 % are opposed.  The poll was conducted  from May 3 through May 5, 2010.

According to the Observer:

"Respondents from both major parties were overwhelmingly in favor of the proposal, though Democrats and independent voters polled more strongly in favor. Still 54 percent of Republicans support the proposal compared to 23 percent against with 20 percent undecided. Overall, 21 percent of voters say they're still undecided on the land-use proposal."

While it is true that the election is over 150 days away, this poll indicates that Florida voters are very frustrated with the rampant overdevelopment has occurred throughout the state. 

Several important issues remain unresolved by the poll. 

It appears the poll did not ask whether folks who supported Amendment 4 would still do so if they knew that Amendment 4 would subject their cities to increased exposure to the cost of litigation over ballot summary challenges and other legal challenges arising from putting comprehensive plans and amendments on the ballot.  Among the logistical challenges that face any city that tries to put comp plans on the ballot is the fact that Florida law requires all items on the ballot to be described in 75-word ballot summaries--a virtually impossible task.

The city of St. Pete Beach has been crippled by numerous lawsuits filed by anti-development activists who have alleged that the 75-word ballot summaries used by St. Pete Beach when it put its comp plan to a vote in 2008 were deceptively unclear.   If Amendment 4 passes in November, all of Florida's cities (like St. Pete Beach) will be forced to summarize their 150-200 page comp plans/amendments in 75-word ballot summaries.  It would be interesting to see whether the 61% poll number supporting Amendment 4 would change if folks knew that they would be facing similar challenges if Amendment 4 passes!

Amendment 4 Proponents Accuse Tampa Bay Regional Planning Council of Bias

Blogmaster Note:  This blogpost contains content that was posted on the Creative Loafing site cited in the attached link.  It is reposted as content here due in part to technical difficulties in linking the content of the Creative Loafing blog to this site.

As reported in a previous blogpost, on April 12, 2010 the Tampa Bay Regional Planning passed a resolution opposing Amendment 4 after having heard presentations by representatives of the "Yes on 4" and the "No on 4" campaigns.

Unfortunately, the proponents of Amendment 4 are extremely dissatisfied with how they feel they were treated by the TBRPC.  According to a Creative Loafing blogpost by George Niemann, titled "The Gang that Couldn't Shoot Straight Tries to Ambush Amendment 4." the Hometown Democracy speaker (Robert Weintraub) felt "ambushed" by the format of the presentations:

"...Manny Pumariega, Executive Director....calls Robert Weintraub, an Amendment 4 campaign coordinator/speaker with an impressive bio. He asks him, as a favor, to please present the pro side to the undecided council. Undecided??? What a joke. He tells him that the other side already presented so he will be the sole presenter and will have 10 minutes. Not realizing the trap these desperate characters were setting for him, Weintraub graciously accepted the invitation. The agenda confirms what Weintraub was told – a single presenter on Amendment 4. Weintraub travels all the way from the east coast of Florida to accommodate the TBRPC request.

What wasn’t clear until after the meeting was that TBRPC staff had arranged an ambush against the Amendment 4 speaker.

Even though developer lobbyist Weaver had already presented last month they sat him in the audience close to the podium. Normally the public is not permitted to speak at regular council meetings.

 Weaver’s speech brought me back to clips I had seen of the old Oral Roberts TV show where he used to heal the lame that hobbled their way up to the microphone. His rambling gave the impression that Satan had reemerged in the form of a ballot amendment. The most ironic thing is that while Weaver is acting like a preacher claiming that Amendment 4 is satanic, most of what spewed from his mouth were lies (including misstatements about supreme count rulings regarding the amendment).

In a flash, the motion for the anti-4 resolution was quickly brought forward and it was passed. It was all secretly choreographed by Duncan and Pumariega and ran like a precision German cuckoo clock.

So this is what the TBRPC thinks is a fair study of the ballot amendment:

 Have lobbyists for the opposition speak for 20 minutes
 Then invite the pro side to speak under false pretenses for only 10 minutes
 When you introduce the pro speaker, don’t show him any respect…just give his name with no other introduction, as is customary when you introduce a speaker (in most civilized countries around the world)
 Then have a surprise rebuttal speaker pop out of the audience and speak for 6 minutes so hopefully they’ll not remember what the previous speaker said.

Unlike Mr. Niemann, I was present at BOTH of the TBRPC meetings, and, having observed all of the presentations and the TBRPC's extensive discussions on the issue, I'd say that Mssrs. Weintraub and Nieman "doth protest too much."  Way too much.  

Mr. Weintraub was not ambushed.  He was not mistreated.

He was given an opportunity to speak on behalf of the Pro-Amendment 4 Campaign/Hometown Democracy after the A4/HTD campaign failed to attend the earlier March 8th meeting.   Mssrs. Weintraub and Niemann's indignation that Mr. Weaver (the No on 4 speaker) was given a brief opportunity to comment is disingenuous since, if Niemann had attended on March 8th and made his presentation on behalf of HTD/A4, Mr. Weaver would have had an opportunity to follow and present a rebuttal:  Nieman's failure to attend and present at the earlier meeting deprived Weaver of his rebuttal opportunity.  Someone as cynical as Niemann might question why Weintraub is so offended that Weaver was afforded a fair and reasonable rebuttal opportunity that Weaver would have had anyway if Niemann had attended and presented, but I'm not, so I don't.
 
Weintraub (and Niemann's) real problem is that Weintraub's presentation was unpersuasive, confrontational and contained factual inaccuracies, and, when his presentation was concluded, Weintraub was unable to answer the fair, reasonable and insightful questions that were asked of him by the Council.  Rather than being so concerned about what Weaver ahd to say, Weintraub should have been more concerned about preparing and presenting logical, persuasive and factually acurate arguments.  He failed to do so, and the Council's action was the result.

It was Mr. Niemann who was on the agenda to speak at the March 8th meeting on behalf of Amendment 4/Hometown Democracy, and Niemann did not attend.  Contrary to Niemann's cynical suggestion, there was no "standing ovation" when the No on 4 speakers made their presentations.  If Niemann had attended the March 8th meeting he writes so acrimoniously about, he would have seen the concern that was expressed by the Council that a pro-Amendment 4 speaker was not present and the Council's deliberate decision not to decide upon a formal resolution until A4/Hometown Democracy had had an opportunity to speak.  If the Council were in such a hurry to oppose Amendment 4, as Nieman suggests, wouldn't they have just passed a resolution to that effect on March 8th?  They didn't do that. 

If Niemann had attended the March 8th meeting, he would have witnessed the extensive debate and discussion that ensued between the members of the Council about the Amendment 4 issue and its potential impact on Floridians, and he would have seen Tampa Bay's elected officials doing precisely what they were all elected to do:  having careful discussions and making reasoned decisions in the best interest of the people.  Unfortunately, Niemann wasn't there, and it does a serious disservice to Creative Loafing readers to suggest that these discussions did not occur.  Furthermore, Niemann's assertions that the Council engaged in "secret choreography" to ram through a vote against Amendment 4 is clearly belied by the Council's actions during the earlier meeting that Niemann did not attend.

Niemann's blogpost also cites a letter Weintraub wrote to the Council in which, among other things, Weintraub complains that: 

"[A]ny visiting speaker before any organization is accorded the courtesy of a proper introduction.  I had responded to your request for personal biographical information, but no more than my name was mentioned in introduction, as if I was some creature pulled in off the street."

If this is part of the reason why Weintraub feels so mistreated, his grievance is way off base.  He clearly did not see the Council's agenda, which was posted on the internet and available before the April 12th meeting, which stated:   

 "Mr. Robert Weintraub, Chair of the Florida Sierra Chapter's Growth Management Committee and an officer of the Nassau County Group of Sierra Club will present as a proponent for Amendment 4.  A former journalist with the NY Times and Atlanta Constitution, he has had a 42 year career in public relations.  He is a former president of the New York Public Relations Society.  Mr. Weintraub has been involved in environmental projects for most of his life."  

With all due respect to Mr. Weintraub, there is no rational basis for him to feel that the Council failed to recognize his professional and biographical accomplishments and bona fides or that he was treated "as some creature pulled in off the street," and it is unfortunate that Niemann, who apparently was present at the April 12th meeting and presumably saw the agenda, still seeks to create an impression in his blogpost that Weintraub's bona fides were not fairly disclosed.  Quite simply, its not the truth.

Urban Planner: How Hometown Democracy Could Hinder Florida's Efforts to Counter Urban Sprawl

In his May 9, 2010 St. Petersburg Times story "Imagining a Less-Driven Florida", Bruce Stephenson critiques what he considers to be one of the core problems in Florida's admittedly flawed system of urban planning and development:  Florida's "60-year love affair with the auto-oriented, single- family-home subdivision."  Mr. Stephenson is one of a number of residents, planners, architects, historians, policymakers and developers who were interviewed for the program "Imagining a New Florida", a documentary produced by the Florida Humanities Council which premiers on Thursday, May 13, 2010 at 8:00 p.m. on most Florida PBS stations. 

I found this story to be very interesting because Mr. Stephenson argues that the passage of Amendment 4 / Florida Hometown Democracy could actually harm Florida's efforts to reverse the urban sprawl that has had such a negative impact on Florida's economy.  His observations are reinforced by the events that have occurred in St. Pete Beach since the 2006 adoption of the city's own local version of Amendment 4.

According to Stephenson, Florida's recovery depends on making a fundamental shift away its traditional auto-oriented, sprawl-inducing subdivision mentality: 

 "Increasingly baby boomers and millennials, the two largest age cohorts, see their future in "walkable urbanism" rather than "drivable suburbanism." As the percentage of households without children continues to rise, the current "demographic inversion" will intensify, increasing the demand for apartments, condominiums and small-lot homes in neighborhoods where residents can walk to parks, shopping and transit. Add the escalating price of land, water and oil, and it is apparent why real estate values in metropolitan areas with housing and transit options (for example, Portland, Seattle) have fared far better than Florida cities."

This view is in keeping with the new findings expressed in an analysis of 2000 - 2008 census data released today by the Brookings Institute, which found that "America's suburbs are now more likely to be home to minorities, the poor and a rapidly growing older population as many younger, educated whites move to cities for jobs and shorter commutes."  According to the study, the nation's demographics have begun a dramatic shift that will continue though in the coming decades:

"A new image of urban America is in the making," said William H. Frey, a demographer at Brookings who co-wrote the report. "What used to be white flight to the suburbs is turning into 'bright flight' to cities that have become magnets for aspiring young adults who see access to knowledge-based jobs, public transportation and a new city ambiance as an attraction."

Interestingly, the solution proposed by Mr. Stephenson and many other urban planners is an approach that many Floridians find nearly as detestable as urban sprawl, namely, increasing population densities to facilitate improved transportation and citizen connection with the community:

Economist Richard Florida predicts capital will be increasingly attracted to "mega-regions" best suited for global competition: rich in cultural diversity with efficient transportation systems, a range of housing options, healthy ecosystems, and significant research centers. Success will be measured in building more energy-efficient and sustainable communities as the ability to underwrite the far-reaching development pattern of the past 30 years continues to dissipate.

Stephenson goes on to describe how the passage of Amendment 4 / Hometown Democracy could harm Florida's efforts at urban redevelopment:

"Whether it is General Motors or outlying subdivisions, investing in oil-dependent industries is not the future. Good physical planning is step one, but we also need to engender a true "hometown democracy" that is an affirmation of a New Florida and not another round of political infighting. The currently proposed Hometown Democracy Amendment, slated for the November ballot, is not what we need. It represents a citizen revolt, and it came about because the state Legislature failed to lead and envision a sustainable future for Florida. Known as Amendment 4, it would require a public vote on proposed changes to community master plans. Unfortunately there is no accounting for good urbanism in Amendment 4; it is a communal nay, as likely to terminate the reconfiguration of a suburban netherworld into a transit stop as halt a sprawling subdivision. Utilizing limited resources more efficiently will require sharing spaces, places and reinstituting face-to-face relations. The future community — the one we need — cannot be an escape to a Magic Kingdom or arrive by government fiat. It must be vital and authentic, mixing profit with virtue to create what we can rightfully call happiness."

Mr. Stephenson makes an excellent point that is reinforced by the events in St. Pete Beach.   In 2006, the voters of St. Pete Beach adopted a local version of Amendment 4 that required a referendum vote on ALL comprehensive plans and comp plan changes.   The hue and cry raised by proponents of SPB's version of Hometown Democracy was, among other things, the need to create a "People's Vote/Veto" to prevent increases in building height and density.  The density issues in St. Pete Beach focused mainly on hotel height and density, but the citizen activists of SPB seem equally opposed to residential/condo densities as well as hotel densities, and they view the "Veto Power" provided  by Hometown Democracy-style referenda as their best weapon to fight the spread of "high rises" and "condo canyons" in St. Pete Beach.

This raises yet another reason why the Saga of St. Pete Beach is directly relevant to the Hometown Democracy / Amendment 4 debate.   Mr. Stephenson argues (correctly, in my opinion) that the future salvation of Florida's economy and its urban infrastructure is to embark on a determined, deliberate, coordinated program to fundamentally change Florida's entire urban and transportation infrastructure planning process, with the primary focus of these changes being a shift towards centers of INCREASED RESIDENTIAL AND COMMERCIAL DENSITY and INCREASED RELIANCE ON PUBLIC TRANSPORTATION in order to reduce urban sprawl, reduce dependence on automobiles and other oil-based transportation modes, and increase the connection of residents/citizens with their communities.  However, in St. Pete Beach, the adoption and use of Hometown Democracy-style referendum votes/veto powers was campaigned as means of PREVENTING INCREASES IN DENSITY.  Thus, it seems to me that St. Pete Beach has proven that the Veto Power of the People can be an obstacle to the kind of comprehensive improvements that Mr. Stephenson advocates, and those obstacles would arise throughout Florida if Amendment 4 passes in November.

Pro-Amendment 4 Arguments Undermined by St. Pete Beach Lawsuit Settlement Offer

There are two important "takeaways" that Florida voters should note from the May 2 story in the St. Petersburg Times titled "St. Pete Beach legal Defense Fund Running Low in Busy Year":

1. The settlement offer recently presented to the City of St. Pete Beach by attorney Ken Weiss on behalf of his anti-development activist clients undermines Hometown Democracy's argument that the chaos in St. Pete Beach has absolutely nothing to do with Amendment 4, and 
2. Sheila Estrada's story is flawed by what I believe is a serious inaccuracy:  she seems to assert that Judge David Demers has ruled that if certain legal technical requirements are satisfied, then the City must hold a new election that includes the 'height and density' language specified by attorney Weiss in the settlement offer--yet no such ruling was made by Judge Demers!      

OK, first, the details.  In her story, Sheila Estrada reports that only $16,000 remains in the City of St. Pete Beach's $200,000 annual litigation defense budget.  With the city's legal defense coffers nearly depleted, St. Pete Beach's city commission is holding a special meeting to strategize how to continue to defend the city against the many ongoing development-related lawsuits filed against it by anti-development advocates.  Estrada reports that "[a] major trial over land use issues is scheduled to begin in August and several other lawsuits could end up at trial later this year or next year."  

Apparently having sensed the City's dilemma, attorney Ken Weiss has presented the City with a settlement offer on behalf of his clients.  As Estrada reports:   

Ken Weiss, the attorney for the three residents [who are suing the City], is offering the city a chance to end all of the comprehensive plan lawsuits, as well as a related lawsuit filed by former Commissioner Harry Metz challenging the city over legal fees it paid for sitting Commissioner Beverly Garnett.

In exchange for dismissing the lawsuits, Weiss is asking the city to agree to hold another election on the comprehensive plan amendments that voters approved in 2008.

This time, however, he wants the ballot language to plainly state that a "yes" vote would mean allowing building heights in certain zoning districts to increase to 146 feet and densities to increase to 80 units per acre.

Judge David Demers, who is presiding over all the comprehensive plan cases, said in a recent ruling that if Kadoura can prove he is legally qualified to sue the city over the plan, then such an election would be required under existing law.

Wow!  

First, this story contains a serious inaccuracy: Estrada writes that Weiss wants the ballot language to "plainly state that a 'yes' vote would mean allowing building heights in certain zoning districts to increase to 146 feet and densities to increase to 80 units per acre". Then Estrada writes that Judge Demers has ruled that if Kaduora has standing, then "then such an election would be required under existing law." This is NOT TRUE. It is true that an election would be required, but Estrada's story seems to assert that the required election would have to include Weiss's desired height and density language, and THAT ISN'T TRUE.  Again, assuming the Judge finds that Kadoura has the right to sue on this issue, a new election would be requried because because SPB's commission failed to hold a new election to approve a few technical, state-mandated comp plan changes that had nothing to do with height or density.  Judge Demers DID NOT rule that Weiss's height and density language must be included on the new ballot.  Thus, I think Estrada's story creates an erroneous impression that the 'height and density' ballot language sought by Weiss in his settlement offer is required by state law.

Second, it seems to me that Weiss's offer destroys his own claims (and those of the Hometown Democracy/Amendment 4 folks) that St. Pete Beach has absolutely nothing to do with Amendment 4. The big issue that Weiss and his clients are focusing on and will settle ALL of the lawsuits over is the "ballot language" lawsuit, (i.e., the lawsuit where they allege that the city's attempt to comply with SPB's "Hometown Democracy-style" regulations that require 200 page comp plans to be described in 75 word ballot summaries). If the City doesn't agree to have another election with ballot language Weiss/plaintiffs like, then Weiss says another $150,000 in legal costs will result. 

Well, ALL of Florida's cities will be vulnerable to expensive ballot-language challenges if Amendment 4 passes in November because Amendment 4 will force ALL cities to undertake the virtually impossible task of summarizing their 100-300 page comp plans/changes in 75-word ballot summaries.  Like St. Pete Beach, ALL Florida cities would be vulnerable (like SPB was) to being sued if a few deep pocket folks don't like the election results.

The fact that Weiss and his clients are willing to settle ALL of the St. Pete Beach lawsuits over a ballot language issue that would apply to ALL Floridians if Amendment 4 passes is clear evidence that the St. Pete Beach situation is highly relevant to the Amendment 4 debate.