Planning by Ballot Box

Carrying the seductive name “Hometown Democracy,” Amendment 4 has generated opposition from an eclectic alliance of business groups, labor unions, good government groups and government agencies.

Now, it seems, with the thousands of signs with the iconic “thumbs down” logo popping up across the Gulf Coast, it may come to best be known as the “Vote No On 4” amendment.

Tampa-based Citizens for Lower Taxes and a Stronger Economy leads the opposition. The political committee, headed by Ryan Houck, is backed by 334 organizations, associations and local governments, plus every major daily newspaper in Florida.

“The more voters know about it, the more they oppose it,” says Houck, who's key message is how Amendment 4 “will raise taxes and kill jobs.”

An economic study commissioned by the Florida Chamber of Commerce concluded that Amendment 4 would most likely cost 267,000 jobs and $34.7 billion in lost economic impact. Florida already has 1.15 million unemployed and the fifth highest unemployment rate in the nation at 11.7%.

Closed for business?

Alan Reynolds, CEO of Naples-based planning and engineering firm WilsonMiller — recently sold to Stantec — worries about the statewide impact and how it will hurt his firm's markets, which he says “are dependent on how the state does as a whole.”

Todd Pokrywa, an urban planner for Lakewood Ranch's Schroeder-Manatee Ranch, conservatively estimates that the cost for a small-scale plan amendment for a 10-acre site would double to roughly $300,000.

The new costs of political campaigns will likely get passed on to end-users, driving up costs. And governments will also face similar costs trying to get state-mandated and technical amendments passed because Amendment 4 makes no exceptions.

The biggest question might be whether comprehensive plans will still be required and if an amendment to an optional plan must comply. The St. Petersburg City Council is considering having two plans with only a simplified one to comply with Amendment 4.

Other legislative issues might include who pays what for special elections and whether other regulations that control land use such as zoning and land development regulations might necessitate referenda.

With Florida becoming the only state with ballot box planning, Reynolds sees “a pretty devastating impact on the overall Florida economy. The only question is how bad is it going to be.” The magnitude would depend on how companies outside Florida view it.

“The impact goes to the heart of what message that would send to the rest of the country,” says Reynolds. “Would Florida be competitive to bring in new business? Amendment 4 would tell the world that Florida is essentially closed to business.”

Fatality of ambiguity?

Despite seven years in the making, Amendment 4 is the most controversial and perhaps least thought out of the six amendments on the ballot.

The amendment would require referenda on all amendments to local government comprehensive plans although the ballot language misleadingly refers only to “comprehensive land use plans.”

Yet, the “Vote on Everything” amendment is likely to pass. That prediction is based on a month-old Mason-Dixon poll and past history indicating how undecided voters actually vote.

State constitutional amendments require 60% approval, so the 53% responding to the poll that they will vote “yes” in favor of Amendment 4 makes it appear it's headed to defeat. Only 26% say they'll vote “no.”

But 21% were undecided, and according to Fowler White Boggs law firm CEO Rhea Law, two-thirds of those can be expected to vote in favor of it based on the history of how undecideds have ultimately voted on constitutional amendments.

The reference to “land use plan” is even misleading. That's because the Florida Supreme Court has stated that Amendment 4 applies to changes to all 17 elements that may be part of a local comprehensive plan — not just changes to the land use chapter. That ruling means, for example, that changing a project construction date in a plan's capital improvement element would require voters' approval.

Law and other attorneys argue that even scrivener's errors — yes, typos — would require a referendum vote because the ballot measure does not specifically exclude those. Citizens for Lower Taxes and a Stronger Economy consider the overreaching nature of it to be the fatal flaw. Houck says local voters could expect 200 to 300 amendments a year to vote on, a figure amendment supporters dispute.

Packaged for lawsuits

Other Amendment 4 advocates argue that if a city or county commission approves hundreds of pages of plan amendments with a single vote, then voters would vote once.

That would lessen the number of ballot items, but at the cost of leaving out important details, which is something that Sarasota County Commissioner Jon Thaxton, a former planning commissioner and noted environmentalist, says he won't support. He strongly opposes Amendment 4.

Such details are typically laid out in mounds of paperwork exhaustively analyzed by development review committees, planning boards, state and regional agencies and elected officials.

Legal experts say local governments would be inviting litigation if they choose to package amendments in a single ballot question because doing so would appear to violate single subject rules of Florida law.

Law says the 2005 Florida Supreme Court addressed this question: The single subject rule precludes “logrolling” or bundling of items, and thus all amendments may only relate to one subject.

There's even disagreement about that.

Sarasota attorney Dan Lobeck, an Amendment 4 supporter, who has appeared on several panel discussions on the topic, claimed during a recent panel that a 1994 Florida Supreme Court case about an Orange County charter amendment ruled that the single subject requirement doesn't apply to local referenda.

But not according to Fowler White attorney Andrea Zelman, a land-use law expert in the Tampa office, who has followed the seven-year evolution of Amendment 4. Zelman says comprehensive plan amendments are not charter amendments and that the case Lobeck cites does not apply to comprehensive plan amendment referenda.

A 75-word limitation also makes it difficult to boil down lengthy and complicated plan amendments. “The biggest problem I see in the future is that people will get so tired at looking at ballots,” says Law. They simply won't vote on everything. What a bad result that would be.”

That means that special interests from environmentalists to the closest neighbors would always rule.

Sarasota County Supervisor of Elections Kathy Dent agrees with that assessment. Dent and Manatee Supervisors of Elections Bob Sweat say their ballot machines couldn't handle ballots anywhere near that large.

Dent believes it will either be up to individual counties to sort it out, or the Legislature could pass a law saying that the local government will pay for it or the sponsor may have to pay for it.

“It's so vague,” says Dent. “There's going to be litigation out the gazoo.”

The St. Pete Beach cost

St. Pete Beach residents Annie and Bobby Fleeting may be two of the earliest victims of planning by ballot box, and the legal siege the city's now under. But the couple will surely not be the last if state constitutional Amendment 4 passes Nov. 2.

Taxpayers would be on the hook for litigation and election costs that could reach into the hundreds of millions of dollars annually, according to Florida TaxWatch, a private, nonprofit, nonpartisan Tallahassee research institute.

But already, Ms. Fleeting estimates that there are at least 300 other victims: people who would have had jobs working at her planned 248-unit beach resort. That project was encouraged by the city and met its new land use plan at the time.

“We believed in the city's dream,” writes Ms. Fleeting in an email. “It became our own.”

But their $60 million revitalization plan for The Coral Reef Hotel quickly turned into a nightmare shortly after their 2004 purchase of the property. City voters approved an Amendment 4-like referendum in 2006 by a margin of just 22 votes. And like Amendment 4 it required voters to weigh-in on comprehensive plan amendments.

The city plan allowing higher density and building height — to counteract the loss of tourism units to condos — was repealed, setting the city of 10,000 residents on a course of self-inflicted economic and fiscal degradation.

The Coral Reef still sits derelict as several other boarded-up and fenced properties that were unable to get plan amendments finalized. “Its misfortune is the result of St. Pete Beach's brief period of Amendment Four-like government,” writes Annie Fleeting about the planned resort.

After St. Pete Beach's Amendment 4-like approach was amended in 2008 by citizens going to the polls as required by the new law, Amendment 4 proponents sued the city over four of the six amendments tying up development projects like the Fleeting's. That tactic has cost city taxpayers $765,000 in legal bills so far with no end in sight, which required a tax hike just to pay the lawyers.

It has cost the Fleetings and other investors on the six-mile barrier island millions of dollars. The Fleetings lost two contracts with multi-national hotel groups, one costing $5 million. It took five years before getting site plan approval this year, but now litigation continues to tie up theirs and others' projects.

Annie Fleeting has reason to be angry, and she is, though she holds out hope the project can be resurrected in the face of foreclosure proceedings and a difficult credit markets further hampered by the lawsuits.

The St. Pete Beach approved a resolution earlier this month urging Floridians to vote 'no' on Amendment 4.

If Amendment 4 passes, TaxWatch illustrates what the financial damage could add up to. Based on St. Pete Beach's experience and that of Yankeetown — where an Amendment 4-style referendum requirement has also drawn lawsuits — and applying the average per capita costs to Florida's 18.9 million population, results in a cost statewide of more than $1 billion.