For so many of us, Christmas is a time of openness and sharing, a time when the bonds of love and goodwill so essential to happiness and fulfillment in life are renewed and strengthened with family, friends and neighbors.
Of course, we all know that while St. Pete Beach is the most beautiful place on earth to live and play, the dramas playing on our little island often proffer a stark contrast to the warm glow and comforting tones of a Hallmark Christmas special.
So this is my Christmas Wish for St. Pete Beach: that in the new year, we the people of St. Pete Beach will restore the peace and tranquility that results from a shared vision of the future of our city, that we will set aside the hostile divisiveness that Howard Troxler so gleefully satirizes in prose and verse, and that we will confirm the trust and confidence we have in those who serve in the administration and governance of our city.
The November 29 ruling by Judge Demers against St. Pete Beach in plaintiff Bill Pyle's ballot language challenge lawsuit illustrates the challenges facing St. Pete Beach as it struggles to bring an end to the bitter polarization and costly litigation that has plagued our City since 2006 (when we embraced the core principles of Florida Hometown Democracy). Just about everyone agrees that a full repeal of the 2006 charter amendments is necessary, including the City Commission, the editorial board of the St. Pete Times, and a majority of the citizens who attended the special meeting of the Commission on December 13th. There is a very small minority of folks who view the Judge's ruling as proof that the City's 2008 ballot language was misleading, but look carefully and you'll see that the Judge isn't saying that the City was deceptive. He's simply ruling that the City failed to satisfy its own self-imposed rule that it fully and completely describe its proposed 150-page comp plan in a 75-word ballot summary.
Despite the clear impact of these rules on our City's governance, the impossibility and magnitude of the problem continues to be very difficult to describe. A few months ago, I compared the task of drafting a 75-word ballot summary of a 150-page comp plan to describing the Bible in 75 words, but some folks are still confused.
So here is another way to look at the problem:
Think of your favorite flavor of jellybean (everyone has a different favorite). Now think of a gallon jug full of jellybeans, with each tasty bean being one of the many words needed to adequately describe each of the many elements of a 150-page comprehensive plan.
And now think of a teacup of those jellybeans as the 75 words you're allowed in a ballot summary.
St. Pete Beach embraced the principles of Hometown Democracy in 2006 by amending its charter to require all comp plans and amendments to be approved by a vote of the people. In doing so, we injected Florida election law requirements into our local land use process and found that Florida's election laws (i.e. the 75-word ballot summary rule) were not designed to handle approval of complex, voluminous documents like comprehensive plans. More important, by putting our comp plans on the ballot, we unwittingly and naively exposed ourselves to the crippling expense of legal challenges when voting on complex comp plans made it difficult or impossible to comply with Florida's election laws.
In short, we the people of St. Pete Beach gave folks like Plaintiff Pyle the right to drag the City into Court and challenge the propriety of a comp plan (which was approved by an overwhelming majority vote of the people) if the City failed to fit a gallon jug's worth of descriptive jellybeans (and especially his favorites) into the 75-word ballot summary teacup.
When Judge Demers ruled against the City, it was irrelevant that it's IMPOSSIBLE to adequately describe the comp plan in 75 words. it was the City, not the Judge, who adopted that impossible standard...the Judge's job was simply to confirm that the City failed to fit all the beans into the teacup.
The SPB ballot litigation illustrates one of the great dangers of the Hometown Democracy experiment: it creates a highly litigious environment where cities can incur massive litigation costs because their good-faith efforts to foster redevelopment and revitalization failed to satisfy an impossible election law standard.
The solution to this problem is not to attempt to fit Pyle's favorite jellybeans into the 75-word teacup.
The solution is to throw away the cup.
The solution is to repeal our local Hometown Democracy provisions and eliminate the impossible requirement of summarizing complex, lenghthy comp plans in 75-word ballot summaries.
The solution is to stop counting jellybeans, and to start sharing them.
Now that election season is behind us, it's time to get into the Spirit of the Season and appreciate the qualities that make St. Pete Beach such a wonderful place to live. Here are some pix from last night's SPB Holiday Lighted Boats Parade!
The truly sad thing about the Amendment 4 debate is how wrong BOTH sides/campaigns are when it comes to St. Pete Beach.
The "Yes" campaign goes wrong by denying that St. Pete Beach has anything at all to do with the consequences of Amendment 4's "prime directive", (i.e., putting comprehensive plans on the ballot). But the "No on 4" campaign also goes wrong, but in a different way: the "No" campaign is wrong about St. Pete Beach because many of its claims are either broad, over-generalized statements or do not adequately sort out the complex, tangled mass of factual details and nuances that are the essence of the St. Pete Beach debacle. In this regard, I agree with today's statement by Howard Troxler of the St. Petersburg Times that the "No on 4" campaign has made claims that are so overstated that it "hurts their own cause."
For example, the "No" campaign has stated that St. Pete Beach's enactment of Amendment 4-style regulations "decimated their economy." The campaign's videos feature vistas of closed businesses and vacant lots, and the message is that this economic devastation was caused by St. Pete Beach's amendment of its city charter to require a vote on comprehensive plan amendments. The truth is that St. Pete Beach is one of hundreds of Florida cities with declining property values, vacant storefronts and once-thriving businesses struggling to save their going concerns. Florida has been hit with an economic crisis of unprecedented scope and severity, and the truth is there is just no way to really tell how much of St. Pete Beach's current woes were caused by the impact of it's Amendment 4-style rules and how much are the result of the overall, nationwide crisis.
The effectiveness of the "No on 4" campaign's argument about jobs is also also undercut because it is so overstated. The "No" folks have cited statistics about how many jobs will be lost because of Amendment 4, but I think most Florida voters know that the construction industry was a huge factor in Florida's jobs market, and that many of the lost jobs factored in to those reports are construction jobs that probably won't be coming back any time soon regardless of whether Amendment 4 passes or not.
But for me, the campaign talking point that really sticks in my craw (do we have craws?) is about the legal fees of St. Pete Beach. The "Yes" folks have fervently denied that the SPB legal fees have anything to do with Amendment 4, and I've blogged about why that claim is inccurate. But the truth is that the "No on 4" campaign is also wrong. I've seen various amounts claimed by the "No" folks about the legal fees incurred by St. Pete Beach as a result of enacting our Amendment 4-style regulations (I think $750,000 is the number most used).
Simply put, the $750,000 in SPB legal fees asserted by the "No" folks as relevant to the Amendmnent 4 debate is just as inaccurate as the denials and $0.00 asserted by Hometown Democracy. Like many other issues under Amendment 4, BOTH sides are overstating their case. As I've said before, Amendment 4 supporters have a point when they say that some of the legal fees incurred by St. Pete Beach are not the sort of fees that other Florida cities would incur under Amendment 4.
Why is this true? Well, back in 2006, when St. Pete Beach first was considering and then passed its Amendment 4-style rules, there was litigation over whether adding a citizen referendum vote to the growth management process was kosher. But the St. Pete Beach version of Amendment 4 failed to include Amendment 4's requirement that the vote come at the END of the process. Whose fault was that? Well, the blame for that lies with Citizens for Responsible Growth, the folks who drafted the language of the amendment and to got it on the ballot. So when it was passed, then another PAC (Save Our Little Village) got signatures and got their version of a comprehensive plan on the ballot. Was that according to Amendment 4? No. It was pursuant to different city charter provision that allows citizens to gather petition signatures and put initiatives on the ballot. The result: litigation over whether the SOLV initiative (which passed in St. Pete Beach by an overwhelming majority vote) violated growth management laws.
With me so far? I hope so, because this is the point of the story where BOTH campaigns drive into the ditch. Hometown Democracy would be right if the story ended there, but unfortunately it didn't. After the SPB election in 2008 (when the SOLV initiative won the vote of the people in St. Pete Beach), one of the CRG folks started a new round of litigation, suing the City alleging that the ballot language used to describe the comprehensive plan amendment was deceptive and misleading, and I've previously blogged about why, contrary to Hometown Democracy's claims, those litigation expenses are a valid comparison to the litigation that could threaten all Florida cities if Amendment 4 passes.
But the "No on 4" campaign also gets it wrong. Why? Because most of the litigation that arose prior to the 2008 ballot language challenge lawsuits doesn't relate to the causes of action that could arise under Amendment 4, and while I haven't seen a breakdown of the figures that go into the $750,000 total asserted by the "No" folks, I think it's safe to say that a good chunk of those fees relate to the lawsuits that arose before the 2008 ballot language challenges. Those legal fees should not be included in the Amendment 4 debate.
In fairness to both of the campaigns, it is virtually impossible to get good, accurate figures regarding the St. Pete Beach litigation. St. Pete Beach was the test case in Florida for the Hometown Democracy concept, and over a dozen separate lawsuits have been filed since 2004 alleging numerous different claims, some of which are relevant and some of which either relate to the unique circumstances of St. Pete Beach. Often multiple lawsuits were consolidated for administrative and billing purposes, making it virtually impossible to segregate which fees are directly and generally relevant to Amendment 4 and which related to the unique circumstances of St. Pete Beach.
Under these complex circumstances, it is not surprising that both the "Yes" and "No" campaigns succumbed to the temptation to oversimplify the facts to advance their respective agendas, but both need to do a much better job of providing accurate information about what happened in St. Pete Beach. The "Yes on 4" folks understate the legal fees incurred by St. Pete Beach that are relevant to the Amendment 4 debate. The "No on 4" folks overstate the legal fees when they make their argument. As with most complicated issues, the truth lies somewhere in between.
Last week, I explained why I agree with Metz's claim that much of the legal expense incurred in St. Pete Beach resulted from ballot challenge litigation that arose when St. Pete Beach put its comprehensive plan amendment on the ballot in 2008 (though, unlike Metz, I think this is actually a good argument against Amendment 4).
However, the main thrust of Metz's commentary is that St. Pete Beach violated Florida's Growth Management laws. Specifically, Mets asserts:
that "developer controlled St. Pete Beach City commission misused the city's ordinance initiative process to submit changes to our city's land use plan in a public referendum without going through Growth Management requirements, and that "the developer controlled city commission ignored state law."
that "the individuals whose property was rezoned had no public notice, nor were they able to voice any objection at public hearings prior to the vote, as required by the Growth Management Act." [emphasis added].
That "In the first lawsuit, the court ruled that Florida's Growth Management Act procedures must be followed, and that the commission could not use the ordinance initiative provision to change the land use plan. but the city and the developers ignored the court's order."
Taken as a whole, Metz essentially asserts that 1) the City of St. Pete Beach violated Florida's Growth Management laws when it settled a lawsuit with pro-development litigants and put its comprehensive plan amendment on the ballot in 2008 before completing the GMA's review and approval process, and 2) that the Court has ruled that St. Pete Beach violated the Growth Management Act by doing so.
However, as reported in the St. Petersburg Times on April 25, 2010, these claims are not true. According to the St. Pete Times, Judge Demers (the trial judge) ruled in favor of the City on four of the seven counts in the lawsuit (with the remaining three counts going to trial later this year), finding that:
The City's settlement agreement was not illegal,
The City properly advertised the referendum,
The election was not unconstitutional, and
The City's actions did not violate the Growth Management Act.
Thus, its really not me saying that Metz is wrong on the facts; its Judge Demers and the St. Petersburg Times. As of this date, Judge Demers has ruled against the claims that St. Pete Beach violated Florida's Growth Management laws, and those rulings went to the heart of Metz's factual assertions that are so often quoted by Amendment 4 supporters.
Thus, Metz and other Amendment 4 supporters are wrong when they claim or imply that St. Pete Beach violated Florida's Growth Management laws: those claims were rejected by the Court.
When Metz and other Amendment 4 supporters claim that the St Pete Beach growth management litigation "has nothing to do with Amendment 4," I 'd say that reasonable minds can differ. I agree with Metz that there are aspects of the SPB's growth management lawsuit that are unique to St. Pete Beach, and it is also true that regardless of whether a comprehensive plan amendment is approved only by a city Commission or by the commission plus a vote of the people, the substance of the comprehensive plan amendment and the public hearing process are subject to administrative challenges.
Metz and other Amendment 4 supporters are clearly wrong, however, when they cite the growth management issues as proof that St. Pete Beach has absolutely nothing to do with Amendment 4. As I showed in my last blog post, even if Florida's cities never suffer a single growth management lawsuit, they will still face ballot challenge lawsuits under Amendment 4 like the ones being fought in St. Pete Beach. And since even Harry Metz admits that St. Pete Beach's ballot challenge lawsuits caused most of the expense of St. Pete Beach's litigation nightmare, I'd say those lawsuits are very relevant to the Amendment 4 debate.
I hope this will provide some satisfaction to those who think that I disagree with them on everything and that I'm willing or unable to concede anything. I'm also hoping that this will help make it clear that there are things that we can (and should) agree on, which in turn will put a clearer perspective on those things about which we agree to disagree.
*footnote: I tend to take these things for granted, but just to be clear, I want everyone to know that absolutely nothing in this or the prior post is or is intended to be an attack on Harry Metz or in any way an expression of disrespect. While I disagree with some of what Mr. Metz has said, and while I may disagree with his views on many issues, I respect his service as a city Commissioner and as a man who strives for what he thinks is best for his community. Unfortunately, personal attacks tend to raise their ugly heads whenever folks talk about things they are passionate about, and I hope it is clear to everyone (and especially to Harry) that when I'm talking about why I think what Mr. Metz is wrong, I'm not attacking him or intending anyone else to think I am attacking him. This may seem like a lot of unnecessary overkill, but I felt I needed to say it to try to be clear.
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.
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]
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.
