St. Pete Beach Commission To Consider Complete Repeal of the City's Amendment 4-Style Rules

St. Pete Beach's long and tortured experience with Amendment 4-style land use regulations is about to get even more interesting.

During a meeting of the St. Pete Beach City Commission on Tuesday, June 22, 2010, District 3 commissioner Marvin Shavlan expressed extreme frustration with the profusion of lawsuits and skyrocketing legal expenses incurred by the city as a result of the city's attempts to implement the Amendment 4-style land use regulations that were adopted by the city by a referendum vote in 2006.  Commissioner Shavlan's frustration has led the city commission to schedule consideration of  a full repeal of the city's Hometown Democracy provisions during the next meeting of the commission on July 13, 2010. 

The regulations adopted by the city in 2006, (which require a citizen referendum vote on all changes to the city's comprehensive plan involving 5 or more parcels) sparked so many costly lawsuits against the city and proved so unpopular with city residents that major portions of those regulations were repealed by an overwhelming majority vote of the people in 2009. 

After the 2009 repeals, only changes involving building height, density and intensity and categories require a referendum vote.  When St. Pete Beach residents voted on the repeals in 2009, many hoped that scaling back the Amendment 4-style regulations would minimize the city's legal expenses.  Unfortunately, not only have the legal bills continued to rack up, but the number of new lawsuits against the city continues to grow...the most recent lawsuit having been filed last week.

Ironically, if the St. Pete Beach city commission approves a repeal of the remaining provisions, that resolution would have to be put on the ballot for approval by St. Pete Beach residents, and it would be put on the same ballot as Amendment 4, in November of 2010.

Furthermore, if the commission approves the repeal, and if the voters of St. Pete Beach approve it at the polls, this would be a complete repudiation of the core principles of Amendment 4.  Having been convinced to try Hometown Democracy, the people of St. Pete Beach will have decided to restore their full trust and confidence in their elected officials to enact land use and comprehensive plan changes.

No doubt about it.  This is going to be an exciting election!


Read the June 27, 2010 St. Petersburg Times story

Amendment 4: Summarize the Bible in 75 Words...Or Else!

One of toughest challenges in any honest, accurate, meaningful discussion about pros and cons of Amendment 4 / Florida Hometown Democracy is the fact that most folks are completely unfamiliar with the scope and complexity of the comp plan that governs their community.  Most people fail to grasp the true, and potentially devastating, consequences of enacting regulations like Amendment 4 that force comp plans and comp plan amendments onto the ballot.

I had to grapple with this myself in May while I was speaking in opposition to Amendment 4 during a debate in Dunedin.  I was the third person to speak, and I could see from the faces of the audience that they did not see the difficulty of putting a 200 page comprehensive plan on the ballot in true, full compliance with Florida law.   I needed a clear, simple way to convey to those folks that putting comp plans on the ballot is a hopeless task that subjects cities to crippling litigation.

So I showed them my Bible, and told them something that they already know: that the Bible is the ultimate comprehensive plan...a comprehensive guide on how to govern your life, your family, and your community.   Then I said:  

"Now imagine if you were forced to summarize your Bible in 75 words or less.  Could you do it?  If you are like me, you know it can't be done.  But if you think you can do it 75 words or less, then write it down, and hand it to your neighbor, and you'll soon be having a passionate discussion about why your 75 words is better or worse than his 75 words."

This is precisely the problem that we had in St. Pete Beach.  Our comprehensive plan is the Bible for development and the preservation of the character of our city.  

Like Amendment 4, St. Pete Beach's city charter requires all comprehensive plans and comprehensive plan amendments to be put on the ballot.  And just like under Amendment 4, St. Pete Beach is required under Florida law to summarize its comprehensive plans and amendments in 75 word ballot summaries.  

And when St. Pete Beach tried to put its comp plan on the ballot in 2008, Florida law forced the city to summarize the 115 page plan/changes in 75 words.  When it tried to comply, the city was sued by a few residents who passionately alleged that the city's 75 words were deceptively misleading. 

Two years, three lawsuits and hundreds of thousands of taxpayer dollars later, the ballot language challenges created by St. Pete Beach's Amendment 4-style regulations are still being litigated, and the lawsuits are draining city funds that could be used to staff its police, fire and city public works departments, all of which (like all Florida cities) have been hit hard by the economic downturn.

The sad truth is that, contrary to what the Hometown Democracy folks are saying, lawsuits over ballot language is a costly legal expense that every Florida city will face when, like St. Pete Beach, they are forced to put their comp plans and comp plan changes on the ballot. 

Putting a comprehensive plan on the ballot is like trying to condense the Bible into 75 words:  it just shouldn't be done...and if you try, you are likely to have an ugly, costly fight over what's missing or wrong with your 75 words.
 
If you read this and think this is a lie, take a clear, hard look at St. Pete Beach, and you will see the truth.

Ward Friszolowski, Former St. Pete Beach Mayor, on Amendment 4: Don't follow in St. Pete Beach's Disastrous Footsteps

This commentary appeared in the Orlando Sentinel on June 18, 2010

By Ward Friszoloski, former mayor of St. Pete Beach, Florida

In November, Florida voters will decide the fate of Amendment 4, a proposal to change our state constitution. A little more than three years ago, my town — St. Pete Beach — narrowly adopted a local version of this idea.

It has been an unqualified disaster.

Our experiment in Amendment 4 failed to promote wiser growth management, as its supporters promised. Instead, it crippled our economy, chased away business and opened the floodgates for a nonstop series of special-interest lawsuits, at taxpayer expense.

Although they originally promoted St. Pete Beach as a success story, the proponents of Amendment 4 are now frantically claiming that St. Pete Beach is not a fair example. These claims are false, desperate and insulting to the residents of our community, who have frequently spoken against the Amendment 4-style experiment.

To support their claim that the St. Pete Beach comparison is unfair, Amendment 4 supporters have said their process was not followed when the voters of our town approved a series of comprehensive-plan changes at the ballot box, rather than submitting them to the City Commission first.

Coming from the same folks who routinely hurl accusations against local elected officials, their calls to respect the decision-making of those same officials seem disingenuous. Are we to believe that Amendment 4 proponents are suing the taxpayers of St. Pete Beach, to overturn an election they lost, simply because they wanted to give everyone a civics lesson?

After all, Amendment 4 is supposed to be simple. According to supporters, it just gives the people a say on growth.

But the voters of St. Pete Beach exercised their say on growth in 2008. If Amendment 4 was about giving us a say on growth, they would have let the election stand. Instead, they are wasting hundreds of thousands of taxpayer dollars in lawsuits designed to stop progress, even though the voters approved it.

Amendment 4 supporters also blame the problems in St. Pete Beach on developers.

This tired argument falls flat in St. Pete Beach, where that mantra has been used to justify unending litigation at the expense of our town's local business climate and quality of life. Indeed, developers are using the Amendment 4-style process in St. Pete Beach to their advantage. So are the anti-growth activists who oppose them.

In fact, special interests of every description — led by lawyers and political consultants — are taking advantage of a major flaw in Amendment 4: It allows those with the deepest pockets to have even greater influence over the planning process.

They're blaming the symptom (special-interest influence) rather than the cause (Amendment 4).

The problem in St. Pete Beach isn't just one special-interest group or another, but rather, the fatally flawed Amendment 4-style process that amplifies special-interest influence by transforming even minor land-planning issues into high-priced political campaigns. This problem is inherent in the concept behind Amendment 4.

Some of the lawyers who worked to impose a local version of Amendment 4 on St. Pete Beach are now promising that the endless litigation will not spread to other communities, if the measure is taken statewide. These promises come from the same lawyers who stand to profit so richly should their promises prove false — as they did in St. Pete Beach.

In truth, the lawsuits in St. Pete Beach would become commonplace in every Florida town; under Amendment 4, many of these legal challenges — such as those dealing with the clarity of the ballot language — would quickly become "copy and paste" lawsuits, readily available to any disgruntled special-interest group on the losing end of a land-planning referendum.

Our local version of Amendment 4 was so disastrous that the voters of our town chose to scale it back in 2009. Because Florida would be the national guinea pig for Amendment 4, we simply cannot afford to ignore its obvious failures, as witnessed by the first community in our state to adopt a local version of this idea: St. Pete Beach.

Ward Friszolowski is the former mayor of St. Pete Beach.

St. Pete Beach Struggles with Yet Another Hometown Democracy-Style Ballot Problem - Part 2

This is Part 2 of the 2-part blogpost.  Click Here to see St. Pete Beach Struggles With Hometown Democracy-Style Ballot Problems - Part 1


Supporters of Hometown Democracy / Amendment 4 who read Part One of this blogpost may be tempted to argue that St. Pete Beach's problem is distinguishable from Amendment 4 because St. Pete Beach's ordinance did not require that the referendum vote occur after DCA and city commission approval of the comprehensive plan.  They may be tempted to argue that St. Pete Beach "ran into trouble" because they "violated Hometown Democracy" by holding the referendum election first, not after DCA approval.   In making these arguments, Amendment 4 supporters seem to also be arguing that St. Pete Beach's "timing" problems (i.e., situations where comprehensive plan referendums are held before DCA/city commission approval) could not and would not happen under Amendment 4.


Such arguments are clearly wrong.   The problem facing St. Pete Beach is similar (if not identical) to the problem that could face many other Florida cities if Amendment 4 passes because, in addition to its Amendment 4-style charter provision, St. Pete Beach (and many other Florida cities) also has a totally separate charter provision that provides that charter amendments may be put on the ballot by initiative and referendum petitions.  As set forth in his law review article entitled "Hometown Democracy -- the St. Pete Beach Experience", St. Pete Beach city attorney Michael Davis writes:

"Florida Statutes Section 166.031 allows ten percent of the registered voters at the last municipal election to place a charter amendment on the ballot.  Section 7.04 of the St. Pete Beach City Charter extends this ten-percent rule to initiative and referendum petitions.  Therefore, once sufficient signatures have been obtained, the measure must go on the ballot.  Moreover, these measures are often not drafted or reviewed by City officials; they are typically drafted by the citizens' group or political action committee proposing the initiative.  The City is nevertheless required to present the measures to the voters."

 Thus, the "problem" posed by St. Pete Beach's voter-initiated comprehensive plan arose from the conflict and fundamental incompatibility of two separate and independently valid provisions of the city's charter.  On the one hand, Florida Statute 166.031 (as extended by city charter provisions) requires that a voter-initiated comprehensive plan/amendment must go on the ballot at the next scheduled election if requisite ten percent of the voters sign petitions.  On the other hand, Amendment 4 would require such a comprehensive plan to go on the ballot only after DCA and city commission approval, which might occur long after the next regularly scheduled election.  The fundamental inconsistency and conflict between Amendment 4 and Florida Statute 166.031 is a problem that all Florida cities may face if, like St. Pete Beach, their city charters allow referendum petitions.

Furthermore, as was the case in St. Pete Beach, changes to a voter-initiated comprehensive plan could be ordered by the DCA after the plan had already been approved by the voters pursuant to F.S. 166.031, thus forcing the city commission, like St. Pete Beach, to either

1. put the comprehensive plan back on the ballot (and thus struggle with crafting adequate ballot language to describe why the same measure is being voted for a second time) or 
2. adopt the comprehensive plan without putting the measure on the ballot and face potential legal challenges (which is what happened in St. Pete Beach).

Supporters of Hometown Democracy / Amendment 4 are therefore wrong when they argue that St. Pete Beach "did not follow Hometown Democracy" and that "If we had Florida Hometown Democracy in St Pete Beach, we wouldn't have these problems."  These arguments fail to address the core weaknesses of Amendment 4-style regulations, i.e.:

1. The fundamental conflict between a) Florida Statute 166.031's requirement that referendum initiatives (including voter-initiated comprehensive plans) be put on the ballot at the next regularly held election and b) Amendment 4's requirement that comprehensive plan changes be put on the ballot after DCA and city commission approval, and
2. The fundamental difficulty in complying with Florida's statutory requirement that all ballot measures (including comprehensive plan amendments) be summarized in 75 words or less.

To their credit, at least some Hometown Democracy / Amendment 4 are beginning to recognize and acknowledge these fundamental inconsistencies, but I have not yet seen them offer any feasible solutions.  For example, during an Amendment 4 event in Dunedin on May 21, Amendment 4 supporter Chris Giuliana stated that he believed that if Amendment 4 passes, local governments should

"take out of your city charters provisions for initiatives in connection with land use plans.   That's the mischief that bothered [St. Pete Beach].  It is not really appropriate for us to initiate land use plan amendments, it is up to local governments to do it [and then] for us to say "I don't think that's a great idea."

It is commendable that Mr. Giuliana acknowledges the problem...he is the only Amendment 4 supporter to my knowledge who has done so.  Unfortunately, his suggested solution to the problem is fatally flawed because it violates the core principle of Hometown Democracy:  i.e., giving citizens the right to vote on land use changes.  Mr. Giuliana's solution to the problems posed by voter-initiated comprehensive plans and land use changes is to amend all city charters to deprive voters of their right to petition for a vote on such changes pursuant to Florida Statute 166.031.

Thus, in order to gain a right to vote on comprehensive plans under Amendment 4, supporters argue that it is necessary to deprive voters of the right vote on the same plans under the existing Florida Statute 166.031.

It seems to me that the "right to vote" on comprehensive plans under Amendment 4 can not be validly justified
by depriving Florida voters of their right to vote on such plans under an existing Florida statute.

All of this has been an issue in St. Pete Beach, which further evidences why Amendment 4 supporters are wrong to argue that St. Pete Beach has "absolutely nothing" to do with Amendment 4.

St. Pete Beach Struggles With Yet Another Hometown Democracy-Style Ballot Problem - Part 1

On Tuesday, June 8, 2010, the St. Pete Beach city commission grappled once again with a troublesome and potentially costly problem that will vex all of Florida's cities if Amendment 4 passes in November:  how to put a comprehensive plan amendment on the ballot in a way that fully complies with Florida's 75-word ballot summary limit yet also minimizes the risk of lawsuits alleging that the ballot language is incomplete or misleading.


St. Pete Beach's charter requires all comprehensive plan changes to be approved by referendum.  The St. Pete Beach requirement is similar to Florida Hometown Democracy's Amendment 4  in that it requires approval of all comprehensive plans and amendments by a vote of the people.  However, St. Pete Beach's rules differ from Amendment 4 in two respects:  

1.  St. Pete Beach's rules only require a referendum on changes affecting 5 or more parcels, while Amendment 4 requires a referendum on all changes, even those affecting only one parcel.
2.  Amendment 4 requires the referendum vote to occur after approval of the comprehensive plan/amendment by the DCA and city commission, while the St. Pete Beach version (which was adopted in 2006) failed to include this requirement.  

Supporters and opponents of Amendment 4 have been arguing passionately (but not always effectively) whether St. Pete Beach's litigious and costly experiment with putting comprehensive plans on the ballot is a fair example of the flaws in Amendment 4.  It may well be the case that such arguments will only be resolved on Election Day in November, 2010.

However, one thing was clear on the night of June 8:  since St. Pete Beach is the first Florida city to adopt Hometown Democracy-style referendum rules, it is the first Florida city to run head-first into the many technical problems and legal challenges that can result from trying to put comprehensive plans on the ballot.

As reported in the St. Petersburg Times on June 13,
the city commission examined whether the city should hold a referendum election on a comprehensive plan that had previously been approved by vote of the people during an election on June 3, 2008.

The tricky issue was that the final version that was approved by the prior city commission included two minor, technical changes that were required by the state, and thus the final version of the comp plan that was approved by the prior city commission was not 100% identical to the version that had been approved during the June 3, 2008 election.  In an effort to fend off legal claims that the prior commission was wrong to have approved the slightly-revised comp plan without putting back to the voters for approval, the commission on June 8th voted unanimously to put the comp plan back to a vote of the people of St. Pete Beach on August 24th, the city's next regularly-scheduled election.

In her St. Petersburg Times story, Ms. Estrada focuses primarily on the question of whether the city should have scheduled the election for August 24th, or whether the city should have waited until after a court ruling by Judge Demers after the trial that will occur a few days later.

To me, however, the more important aspect of the city's discussion (which was not mentioned at all in the Times story) was the question of how to successfully summarize the 115-page comprehensive plan in a ballot summary that uses only 75 words (as required under Florida law).

I believe the commission's discussion and its struggle to comply with St. Pete Beach's Amendment 4-style referendum requirements is the same sort of discussion that many, if not all, Florida cities will be forced to have if Amendment 4 passes.  I've inserted my transcription of the discussion below, and you can view the streaming video by going to the St. Pete Beach website and selecting the Commission menu and then selecting the June 8, 2010 meeting.

The ballot language proposed by Suzanne Van Wyk, the city attorney, for the amended plan was identical to the ballot language used for the previous version of the plan.  When Commissioner Alan Halpern asked the attorney whether the ballot language should also describe the two minor changes, she responded:

VAN WYK

"Therein lies the issue with reducing a 114 page comprehensive plan amendment into a ballot summary."

HALPERN

"I understand that, but isn't there a way, in 75 words, that we could say that this is the same plan that you voted on last time, with the exception of the two sentences that were removed or added?"

VAN WYK

"That's an excellent question, Commission Halpern.  I spent a couple of hours with this language.  The point is, if that is what we are doing, then we fail to summarize what they are voting on.  So we went back, and I went through this four or five times...we looked at adding... 'this differs in the following ways', or 'these are the two items that were deleted'.  I've tried several times to come up with language that would incorporate that.   I have not been able to do it within the 75 words.  Believe me, it is difficult.  But more importantly, we want to avoid additional challenges by putting new language in there that may just create additional litigation."

HALPERN

"I understand the fear with that ... but if any of the voters do even recall the language is the same as what they voted on last time ... people are going to say 'why are we voting on the same thing again?'

VAN WYK

"The local government isn't hamstrung in terms of putting out information ... You can put out information as to what has changed ... There are some steps the city can take to make sure the information is out there."

 Later in the discussion, after Commissioner Halpern had expressed his concern that the proposed ballot language did not describe the two minor technical changes to the comprehensive plan, Commission Jim Parent added:

PARENT

"This just points up the 75-word limit on ballots...

HALPERN

"I realize that ... this is the best description we came up with last time, and its the best description that we have now.  But the fact that we are voting for this again, because we changed it, per the DCA's request, and they were two minor changes, somehow I think we need to convey that."

VAN WYK

"Let me just add this, if it helps.  All of the litigation that surrounds [the] ballot title and summary challenges is whether or not the title and summary convey the chief purpose of the issue, and in this case the chief purpose is to get the voters' approval of the entire comp plan amendment, not of those pieces that were left out.  It's almost an abstract concept to put out to the voters 'Do you want to approve the deletion of paragraph 8, footnote 1.  I understand that some of the members are interested in just putting the changes before the voters, but if we want to stick with what is required under the law we need for the voters to be approving the whole amendment."

Commisioner Shavlan then added:

SHAVLAN

"The problem is the 75-word limit, but that is the law, so what can we do about it?"

PARENT

"I think part of the point is that in 75 words it is difficult to explain the entire 114 page comp plan, and regardless of whether it is before DCA or after DCA's minor changes, minor changes certainly shouldn't affect the ballot language.  And therefore it's essentially the same plan.  And if that is difficult to convey, then so be it, but to change it because of those minor things says that every time you change a punctuation or a phrase you are going to chase the ballot language around in 75 words [and] that doesn't make sense to me."

HALPERN

"It doesn't make sense to me either ... When you talk to your neighbor who isn't at this meeting .. and they go read this thing and vote on it, how do they know what we are doing?

SHAVLAN

"That's why maybe they shouldn't be voting on it.  I mean, in most cases, city commissions make these decisions, because they are more involved with the product ... if [voters] want to make an informed decision, they need to go study the comp plan, and unfortunately most people don't."

PARENT

"And the best we can do is provide different levels of summaries..."

A few moments later, Commissioner Bev Garnett added:

GARNETT

"You know, I was at the hearing where this was discussed in front of Judge Demers, and one of the statements that he did make at that hearing was, and this is in reference to the litigation that is against the [ballot summary] verbage in here, and he said that he is not sure what verbage could be put in a ballot summary, because you are limited to only 75 words, and that [he questioned whether] it could ever meet the test and [you] could be sued by anybody at any time, and anybody could disagree with it." 

"And so, that is a challenge we have.  We have only 75 words.  We have to try to put this out there.  Is it going to stop litigation, who knows? ..."

"But the reality is, he [the judge] said it in court:  'I don't know that people would ever be happy with exactly what it says.  You will always have somebody who questions [the ballot language]."

This tortured exchange is relevant to the Amendment 4 / Hometown Democracy debate because, in general terms, it illustrates that implementing Amendment 4 -style referendum rules is not as simple, easy and clear-cut as the Hometown Democracy campaign seems to want voters to believe.  It emphasizes that summarizing comprehensive plans in 75 word ballot summaries is not a simple task, and that local governments can and will face both significant logistical difficulties and significant potential legal exposure when they try to comply with Florida's 75-word ballot summary limitations.

Click Here for Part 2, where the arguments of Amendment 4 supporters are examined.

Note:  Amendment 4 supporters who follow this blog and who read this should read Part 2 before posting their comments.