Agreeing to Agree on Amendment 4? Part 1

I was very pleased to receive comments from several Amendment 4 supporters in response to my request for facts supporting their view that the St. Pete Beach litigation is not a prime example of the flaws of Amendment 4.

One commenter ("Annonymous") cited the commentary "What Really Happened in St. Pete Beach," by former St. Pete Beach Commissioner Harry Metz, in which he states his view of the events in St. Pete Beach and his opinion that they had nothing to do with Amendment 4.

Another commenter (Lynn Anderson) cited "What About St. Pete Beach and Florida Hometown Democracy / Amendment 4", a blogpost on a Hometown Democracy blog which recites some of the history of the St. Pete Beach litigation.

A third commenter ("Vote Yes", a regular follower of this blog whose comments and criticisms of my coverage of this issue prompted my last blogpost) offer some factual assertions in support of his position.

I am pleased to have received these comments because, in reviewing the information presented in those posts, I see that there is less disagreement about the facts than anyone realizes, and I'm hopeful that in responding to these comments, perhaps we can make some progress and find some common ground in our discussion about Amendment 4 and the facts about the St. Pete Beach litigation.  Since the subject matter is a bit detailed, I'll tackle each of the three commenter's comments in a separate post.

OK, so let's start with "Anonymous" and her reference to the commentary by former St. Pete Beach commissioner Harry Metz.  Metz states that the St. Pete Beach litigation has "nothing to do with Amendment 4", and that if Amendment 4 had been in place in St. Pete Beach, "none of the conflict would have taken place."

In support of his conclusion, Metz makes several factual assertions about the events in St. Pete Beach, and he also comments about the resulting lawsuits.  This may come as a surprise to some, but I agree with several of his comments (more about this in a minute).

However, as reported in the St. Petersburg Times, many of Commissioner Metz's factual assertions are incorrect.  I'm hopeful that by presenting a careful, step by step explanation, we can find some common ground about what happened in St. Pete Beach.

According to Metz, the bulk of the St. Pete Beach litigation is centered on two of the dozen or so lawsuits that have been filed:  one of these lawsuits deals with allegations that St. Pete Beach violated Florida's Growth Management Act when it put its comprehensive plan amendments on the ballot in 2008, while the other involves allegations that the ballot language used by the City was deceptive and misleading.

I'll start with something Commissioner Metz asserts that I DO agree with.  Regarding the lawsuit about ballot language, Metz writes:

"The...lawsuit against the city asserted that the ballot language for these ordinances misrepresented them, with the intention of deceiving the voters...Much of the legal expense incurred by the city relates to the ballot language case.  Again, nothing to do with Amendment 4."  [emphasis added]

I agree with  Commissioner Metz that much of the legal expense from the St. Pete Beach litigation relates to the ballot challenge case.  The ballot challenge litigation is clearly the crux of the entire St. Pete Beach litigation.  As reported in the St. Petersburg Times, significant effort and expense was expended by the city engaging in weeks of settlement negotiations that ultimately were unsuccessful, and a trial on the ballot language challenges was just concluded on August 19 that consumed an entire day in court.  The importance of the ballot challenge litigation was further emphasized when, in April of this year, attorney even Ken Weiss (the attorney for the three individuals suing the city) stated that his clients "would drop all the lawsuits" if the city would agree to ballot language favored by his clients.

So I agree with Metz regarding the magnitude of the ballot challenge litigation.  However, I disagree with his statement that such litigation "has nothing to do with Amendment 4."  As I have said again and again, the St. Pete Beach ballot challenge litigation arose because Florida's election laws required the city to summarize its 150-page comp plan amendments in 75 word ballot summaries.  No matter how hard you try, its' impossible to compress a 150-200 page document filled with complex land use regulations into a 75 word summary in a way that is immune from legal attack by someone who feels their interests or concerns have been omitted.  And just like the plaintiffs in the St. Pete Beach (who felt that the city failed to include THEIR prime concerns within those precious 75 words), every other Florida city will be subject to similar challenges if Amendment 4 passes.

I also disagree with Metz's statement that "none of the conflict would have taken place" in St. Pete Beach if Amendment 4 had been in place because even if Amendment 4 had been in place, and even if the election had taken place after all of the public hearings and approvals by the City and by Florida's growth management officials, the City still would have put the comp plan amendments on the ballot, and the ballot summaries used by the City would still have been challenged by the St. Pete Beach plaintiffs.  Under Florida law, there is absolutely no difference between the ballot summaries the City put on the ballot under the City's charter and the ballot summaries the City would have submitted under Amendment 4, and the lawsuits would still have happened if Amendment 4 had been in place in St. Pete Beach because the language of Amendment 4 does nothing to insulate cities from the liability and expense of ballot challenge litigation once they have been forced to put their comp plans and comp plan amendments on the ballot.


I hope that Amendment 4 supporters will agree that litigation over ballot language is a serious risk and an inevitable consequence of enacting Amendment 4, because in doing so they would not only be agreeing with me, they would also be agreeing with Hometown Democracy founder Leslie Blackner.  When questioned by Politifact about St. Pete Beach and the likelihood of ballot challenge litigation spreading throughout Florida under Amendment 4, Ms. Blackner confirmed that litigation over ballots and summaries would result from Amendment 4 (though she opined that most of the lawuits would filed by developers).

So this is why I'm saying that St. Pete Beach's ballot challenge litigation is a good example of the costly consequences of Amendment 4.  The St. Pete Beach plaintiffs' attorney Ken Weiss agrees that the ballot challenges are the crux of the St. Pete Beach litigation.  Former Commissioner Harry Metz agrees that much of the legal expense arose from the ballot challenge litigation.  Hometown Democracy founder Leslie Blackner agrees that ballot challenge litigation will result from the passage of Amendment 4.  And the facts are backed by the St. Petersburg Times.


It seems to me that rather than disputing whether ballot challenge litigation (like St. Pete Beach's) will arise under Amendment 4, the more meaningful discussion would be this:  Given that costly ballot challenge litigation is a risk and an inevitable consequence of Amendment 4, do the benefits of Amendment 4 sufficiently outweigh those risks and costs to favor passage of Amendment 4? 


Of course, Metz's commentary also includes allegations that St. Pete Beach violated Florida's Growth Management laws.  Since this post is already so long, I'll tackle the Growth Management issue in the next post.



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