Amendment 4 Demystified: Part II – St. Pete Beach

by Kemp Brinson

Welcome to part II. If you missed part I of Amendment 4 Demystified, you may want to go read it now. Part I describes the meachanics of Amendment 4 and the basic positions taken by each side in the debate.

I had planned to focus part II on a number of questions, but it has evolved into something a little different. One question I wanted to address was the question of whether St. Pete Beach’s experience is relevant to Amendment 4. As it turns out, my work has been done for me by PolitiFact, a fact-checking project of the St. Petersburg Times. I think their conclusion are accurate and I encourage you to read their take on this.

Politifact also as excellent commentary on several other claims about Amendment 4: here, here, and here.

The Difference Between Amendment 4 and St. Pete Beach

The key difference between Amendment 4 and the St. Pete Beach situation is one of timing. Under Amendment 4, a comp plan amendment will appear on the ballot only after it has been approved by the local government. Under the St. Pete Beach charter amendments, the City Commission is unable to adopt a plan amendment until after the voters have approved it. Amendments could appear on the ballot before the City had approved them. This, proponents claim, means that St. Pete Beach has had a lot of junk amendments on the ballot that would never see the light of day under Amendment 4.

As loyal readers know, I’m a big fan of letting you read the text itself. Here it is with the operative text of Amendment 4 in bold.

First Amendment 4:

Public participation in local government comprehensive land use planning benefits the conservation and protection of Florida’s natural resources and scenic beauty, and the long-term quality of life of Floridians. Therefore, before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, such proposed plan or plan amendment shall be subject to vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body as provided by general law, and notice thereof in a local newspaper of general circulation. Notice and referendum will be as provided by general law. This amendment shall become effective immediately upon approval by the electors of Florida.

And now the St. Pete Beach charter amendment:

A comprehensive plan (“Plan”) or comprehensive plan amendment (“Plan Amendment”) (both as defined in Florida Statutes Chapter 163) shall not be adopted by the City Commission until such proposed Plan or Plan Amendment is approved by the electors in a referendum as provided by Florida Statute Section 166.031 or by the City Charter or as otherwise provided by law.  Elector approval shall not be required for any Plan or Plan Amendment that affects five or fewer parcels of land or as otherwise prohibited by Florida Statutes including but not limited to Florida Statutes Section 163.3167.

Polifiact reaches this conclusion, and I agree entirely:

We unequivocally come to one conclusion: The situation in St. Pete Beach is a mess.

After that, the analysis becomes less cut and dried. Here’s how we see it. A group of St. Pete Beach residents, unhappy with the direction of their city government, successfully wrestled certain land use decisions out of the hands of elected leaders. The movement produced a backlash from both the government and pro-development forces, who then mounted their own political campaign to wrestle power back.

The power struggle has continued for close to four years.

That’s a different storyline than what is envisioned under Amendment 4, where voters would act as a check on the decisions of local government. The amendment itself isn’t designed to go around government the way the situation in St. Pete Beach played out. And it has nothing to do with citizens proposing amendments to the local comprehensive plan, like what has happened in St. Pete Beach.

Now, are the same lawsuits and political maneuvering possible? Absolutely. And maybe that’s enough to make the analogy valid.

But voters should be wary in blindly believing that St. Pete Beach’s experiences would be duplicated statewide should Amendment 4 pass. Opponents say St. Pete Beach’s experience is a “fair example” of what could happen should Amendment 4 pass. We rate that claim Half True.

A Few of the Issues Explained

I am going to try to go issue by issue through  a few of the major points raised by the proponents and opposition to Amendment 4 and analyze their positions for truth and persuasiveness.  There are a lot of arguments out there that set up a straw man. These arguments look like this: “(the other side) says that Amendment 4 will (do something), but they are wrong it will really do (something else). The problem with these sorts of arguments is that quite often, the other side is NOT saying that. The person doing the talking just wants you to believe that they are. Don’t believe what each side accuses each other of saying

Will Amendment 4 require a vote on all land use decisions? Will it require a vote on amendments to all elements of the comp plan?

Comp plans contain a lot more than just land use information. They contain directives on things like transportation, utilities, recreational facilities, and housing. (Hence, they are “comprehensive.”) For example, the recreational element of the City of Winter Haven’s comp plan says that there should be at least one neighborhood park of at least 5 acres for every 5,000 residents. If the City wanted to amend that, City voters would have to approve it.  I don’t think there is any real question that voters will have to approve amendments to all elements of the comp plan, not just the private land use amendments.

But Amendment 4 would not require voter approval for all local government decisions that affect land use. For example, if an area is already slated for residential use in the comp plan, a change from zoning for townhouses to zoning for 2-story apartments might simply require a zoning change, not a comp plan amendment. This example may or may not be applicable depending on what the comp plan actually says in your community, but I think you get the idea.

But some opponents have said that Amendment 4 will lead to votes on garden variety zoning decisions, not just comp plan amendments. Who should I believe?

This argument is rooted in the text of Amendment 4. Part of the text reads: “‘Local government comprehensive land use plan’ means a plan to guide and control future land development in an area under the jurisdiction of a local government.”  The amendment does NOT refer to comp plans as defined by Florida Statutes – it uses its own definition. It could be argued that this definition is so broad as to include more than just statutory comp plans. After all, isn’t a community’s zoning map, which is not part of the comp plan, a “plan to guide and control future land development in an area under the jurisdiction of a local government?”

The Florida Supreme Court has addressed the issue in one of their decisions leading up to Amendment 4 being placed on the ballot. In that case, opponents argued that this definition is misleading because it is not clear what a comprehensive land use plan really is. The court based its decision on the fact that this issue was not raised in earlier arguments. But they did spend some time addressing the question and concluded that the language is not misleading. In their analysis, they were most interested in the fact that comprehensive plans address “future” land use planning, with particular emphasis on the “future” part, as opposed to existing land use requirements.

My own personal view, one that experienced land use counsel may disagree with, is that, as we sit here today, there really is not much ambiguity about the line between comprehensive land use plans and regular old run-of-the-mill land use decisions. We have been working under a reasonably consistent statutory scheme on this for a while now, and the line between comp plans and zoning is defined well enough. I think if local governments stick to the existing scheme, they will probably avoid this issue.

In order for any perceived ambiguity in Amendment 4 to result in voters voting on every single little zoning change, we would have to be dealing with a local government that intentionally made its comp plan too strict out of fear of growth or too broad to try to circumvent Amendment 4. If they make the plan too strict, voters would have to vote on everything because everything would require a comp plan amendment. If they try to make the plan too broad, then they risk a court saying that their comp plan is meaningless and that their future land use controls are really embodied in the zoning ordinances. In either case, they would get what they deserved.

So, is this a potential problem with Amendment 4? In my opinion, yes. Is is a huge problem? In my opinion, probably not.

How many comp plan amendments would be on the ballot each election cycle?

Here’s a point where the propaganda is widely divergent. One side says 3-4 per year. The other says hundreds. As long as you bear in mind that a lot of local governments have been pushing comp plan amendments through like crazy for the past year or so in anticipation of Amendment 4, a simple look at the numbers ought to answer the question, right?

Well good luck with that. It is not nearly as easy as I thought it would be to simply look up how many comp plan amendments are submitted by a local government each amendment cycle. The Florida Department of Community Affairs maintains a database of amendments, but it is tricky to figure out.  In Polk County, it appears that there were about 25 in roughly the past year or so.  I suspect that both the proponents and opponents are creatively rounding their numbers for propaganda purposes, and we can expect the actual number of amendments to be somewhere in between the numbers they are throwing out.

So should I vote for this or not?

Make up your own mind. If you vote in favor of Amendment 4, I think you should realize that it is an imperfect and potentially problematic resolution of the problem of lack of growth planning. You are shifting a highly technical decision away from educated staffers and informed elected officials and submitting it to the will of the masses. You need to understand these potential problems and have made a considered value judgment that the cure is better than the disease.

If you vote against it, you should probably acknowledge that our existing growth management practices are broken and that unless other reforms are pushed through, this sort of grass-roots effort to mess with the system is going to come back again and again to haunt you.

Full disclosure

My firm and I represent a lot of developers. Nearly everyone that I know and work for on a regular basis is dead-set against Amendment 4. I will be voting against it primarily because I think growth management is too technical of an issue to give the voters this much direct control in and because I think reforms would be better if codified in law instead of in the state Constitution, which should be a place for carefully considered proposals. I am, nonetheless, sympathetic to some of the concerns that gave rise to this amendment and a bit disappointed with the overdone propaganda from my team.

I’ve done my best to be objective in this analysis, but feel free to take what I am saying with a grain of salt and point out any perceived inaccuracies in the comments.

Will you be voting for or against amendment 4? What are your personal reasons?