Amendment 4: Should the public vote on changes to growth plans?

Proposal would require voter approval to growth-plan changes

This proposed amendment to the Florida Constitution would require voter approval of proposals that change local growth-management plans. Comprehensive plans, as they are known, are blueprints that cities and counties use to lay out a vision of what their communities will look like.

The plans outline specifics for future development: where, what kind and how dense.

Voters already have indirect control over how comprehensive plans are changed by electing the city and county officials who control them. But supporters of this amendment say elected officials too often ignore voters, and the rules for halting unplanned growth are not working. This proposed amendment, they say, is a way of giving residents the power to decide where and how their communities should grow. Voters would decide whether they want their comp plan changed – and, essentially, whether they back the new development being proposed – in referendums.

Local governments could hold special elections or add the questions to the ballot in a regular election. Statewide, cities and counties regularly make changes to their comp plans, with the more populated cities and counties making more changes than the less populated cities and counties. All of the cities and counties combined make an estimated 8,000 changes in a year, a number that both supporters and opponents of this amendment use to make their case. Supporters say that number shows why voters need more control over the process. Opponents say the amendment, if passed, would force local governments to hold dozens of special elections or offer a giant ballot during regular elections that would overwhelm and confuse voters.

The debate can also be framed as a challenge to "representative democracy" and the principles of a republic. Under the current system, locally elected government bodies decide land use changes. If this proposed amendment passes, land use changes would be decided by the will of the majority voting in a particular election, in what can be called "direct democracy."

The proposed amendment has become synonymous with the group that succeeded in getting it on the ballot, Florida Hometown Democracy. But, in fact, the amendment will appear on the ballot like this:

"REFERENDA REQUIRED FOR ADOPTION AND AMENDMENT OF LOCAL GOVERNMENT COMPREHENSIVE LAND USE PLANS."

Here is the summary:

"Establishes that before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, the proposed plan or 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 and notice."

Arguments for

Florida Hometown Democracy Inc. started collecting petition signatures for its amendment in 2003. The group is led by Palm Beach land-use attorney Lesley Blackner and Tallahassee environmental attorney Ross Burnaman and is bolstered by some state environmental groups, including the Sierra Club and other organizations in favor of controls on growth.

On its Web site, Florida Hometown Democracy declares its mission is to "make the current land use system more accountable by giving the power over certain land use changes (comprehensive plan amendments) to the voters."

Too often, backers contend, development interests are able to navigate the Byzantine world of local comp plan amendments to usher through changes that benefit their interests with little or no input from citizens affected by it. Amendment backers argue that comprehensive plans already approved can accommodate growth for decades to come. Making it relatively easy to change local plans defeats the purpose, they say.

"As Florida's recent history demonstrates, changes to your community's master plan are among the most important decisions that local governments make, and we in the community must live with the consequences for decades to come," the Hometown Democracy group states. "Accordingly, voters have a right to be involved in this most important decision-making process."

Since 2003, the group has raised and spent nearly $1.5 million. Most of the contributions were less than $1,000 each; the Sierra Club of Florida has given more than $200,000. Blackner, the campaign's largest single contributor, has put up nearly $1 million.

You can see Hometown Democracy's campaign finance activity since June 2003 on the Florida Department of State's Web site.

Arguments against

Builders, real estate agents and other business groups responded to theBuilders Hometown Democracy proposal by starting their own group, Floridians for Smarter Growth. The group, backed by the Florida Chamber of Commerce asserts that this amendment "subverts a well-established, open, accessible and democratic planning process."

Since its creation in 2007, the group has raised $4 million to defeat the Hometown Democracy proposal. Floridians for Smarter Growth contends that the proposal would hamstring government, kill business development and further depress Florida's economy. By requiring voters to approve thousands of comp plan changes, most of which they argue are non-controversial, the amendment would make it much more difficult for local governments to keep up with even the day-to-day changes necessitated by growth. The group labeled the amendment the "Vote on Everything" initiative.

The Smarter Growth group generated its own amendment for the 2010 ballot. It would have superseded the Hometown Democracy proposal and required that at least 10 percent of a community's registered voters show up at a local government office and sign a petition if they favor a vote on a comp plan change. The group, however, failed to meet a Feb. 1 deadline to garner enough signatures to put the competing measure on the ballot.

Opponents have re-focused their energies to defeat Amendment 4. Toward that end, they formed Citizens for Lower Taxes and a Stronger Economy, which took over for Floridians for Smarter Growth as the lead group opposing the proposed constitutional changes. During the first quarter of 2010, the group raised nearly $1 million. The campaign finance history for Citizens for Lower Taxes and a stronger economy can be found here. "Amendment 4 would make the recession we are in permanent," said Florida Chamber President Mark Wilson, "It will make managing growth unmanageable. It is really a no-growth amendment."

Business groups are not alone in opposition. The Florida League of Cities and the Florida Association of Counties also oppose Amendment 4, arguing that it will make their jobs much more difficult. Gov. Charlie Crist and Florida Chief Financial Officer Alex Sink, the state's highest-ranking elected Democrat, have also come out against the amendment. However, one group that started out against Amendment 4 refined its position Sept. 13 to neutral. The nonprofit 1000 Friends of Florida growth-management advocacy organization backtracked, saying the unwillingness of some local governments and the Florida Legislature to address serious shortcomings with Florida's existing growth management system prompted the shift in position.

"The Board still believes that there are flaws with Amendment 4," Chairman Emeritus Nathaniel Reed said in a statement. "However, we also recognize that the on-the-ground results of the existing growth management system are far from perfect and need major improvement. Amendment 4 may be the catalyst that is needed to promote positive change."

Will voters be overwhelmed?

As voters arrived at precincts in Pinellas and Volusia counties to cast ballots in the primary election Aug. 24, members of a political action committee for "Vote No on 4" handed out mock sample ballots numbering 47 pages.

The ballots contained an array of mundane items like "Technical Revisions to Policy 3.4.4 on Sediment Settling Basis" and "Technical Revisions to Policy 1.4.2 on Open Space Definitions in Conservation." There were 526 separate yet similar planning revisions on the imitation sample ballot, meant to illustrate how ballots would balloon if Amendment 4 passes.

Proponents for Amendment 4, Florida Hometown Democracy Inc., cried foul.

"It is a lie and a scare tactic," said Lesley Blackner, president of Florida Hometown Democracy.

The ballots would not be anywhere near the length that the No on 4 side is asserting, said Dan Lobeck, a comprehensive planning and land-use law attorney and also a principal spokesman for Amendment 4.

"The other side is saying you have to chop up the amendment into little parts so it's going to be a huge number," Lobeck said. "That's simply not true. It's absurd."

Lobeck examined four years' worth of data from the Florida Department of Community Affairs and concluded that the roughly 500 cities and counties in Florida made an average of 4.2 comprehensive plan amendments each year between 2004 and 2008.

Some municipalities, mostly in less populated, rural areas, made far fewer changes than the more populated counties, and some made more than the average. Pinellas County at one point voted on the high end, in the 20s, during the economic boom, Lobeck said.

"In reality, we're talking about between zero and maybe 20," he said. "What (opponents) are doing is taking individual amendments and breaking them into little pieces arbitrarily."

The opponents of Amendment 4 say that's required by the "single subject rule" in the Florida Constitution. The single subject rule was created to ensure that laws, ordinances and state Constitutional amendments deal with only one subject. That prevents more controversial or less popular unrelated items from piggy-backing onto unrelated legislation more likely to pass.

Lobeck disagrees. He said the Constitution's single subject rule does not require that a single Comprehensive Plan ordinance be broken up into separate parts. Putting the entire ordinance with its various sections up for one vote would also comply with the rule – the single subject being comprehensive planning, Lobeck said.

Also, the Florida Supreme Court has ruled (in a case regarding a vote on a County Charter amendment) that although the Florida Constitution applies the single subject rule to constitutional amendments, state laws and local ordinances, a local ballot measure is not subject to the single subject rule.

"There is certainly no truth to the claim that each sewer pipe would require a separate vote," Lobeck said.

A typical amendment involving a developer changing agricultural land to commercial to build a mall would be subject to just one vote, Lobeck said.

Opponents of the proposed amendment disagree.

Ryan Houck, a leader in the fight against Amendment 4, said voters can expect 47-page ballots if the amendment passes.

"They wrote this amendment seven years ago," Houck said. "They didn't vet it. They're stuck defending a proposal that is full of holes and is fatally flawed."

Houck, executive director of Citizens for Lower Taxes and a Stronger Economy, said his group pulled Florida Department of Community Affairs records and found that during the fiscal year 2006-2007, local governments adopted 6,406 community and comprehensive amendments statewide.

While a local ballot measure is not subject to the single subject rule by the Florida Constitution, many municipalities, Houck said, have their own laws they must follow. Under some of those laws, he said, individual changes would have to be broken out to ensure that a controversial one like the construction of a jail would not prevent the approval of more benign planned businesses, such as the construction of a day care center.

Regardless of whose interpretation of the single subject rule is correct, Houck said, the question will end up in court if Amendment 4 passes. "Even if they're right (that the ballot will remain compact)," Houck said, "they're basically asking for more litigation. That's not fair to the voters."

He said the backers of certain measures might feel they did not get equal treatment at the ballot box because they were lumped in with more controversial items, a practice called logrolling.

"There is a statewide prohibition against logrolling on constitutional amendments and state issues," Houck said. "There's no reason to assume that the basic logic doesn't apply to the local ballot measure. It all points, frankly, to a 47-page ballot."

The mock 47-page ballots distributed by Citizens for Lower Taxes and a Stronger Economy came after a hired expert examined DCA documents reflecting comprehensive planning changes in North Redington Beach in 2006 and Orange City in 2005.

The expert took each plan amendment and wrote a ballot summary for the item conforming to the single subject rule.

Houck said it is important to note that comprehensive plan amendments are at least as diverse and varied as any ordinance.

"We're talking about separate applicants, separate parcels of land, separate and often distinct functions of government --- land use versus capital improvements versus intergovernmental coordination, for example," Houck said. "There can be very little doubt that logrolling these separate measures would be a very clear violation of single-subject.

"The bottom line is that, at best, Amendment 4 will mean 47-page ballots or millions of wasted tax dollars in litigation," he said. "At worst, it will mean both."

Based on the arguments put forth in this section, there is no simple answer to how complicated the ballots might become.

TaxWatch takes a look

Florida TaxWatch, a nonprofit taxpayer research institute and government watchdog group, released a study called, "Land Use Planning by Referendum," which examined the financial impact on the Florida economy if Amendment 4 passes.

The findings: Amendment 4 would cost more than 260,000 jobs, with an estimated loss of $16.7 billion in personal income over six years.

Rick Harper, a University of West Florida economist and the research director at TaxWatch, told the Ft. Myers News-Press that there is also an unknown loss of investment by developers who will take their money elsewhere rather than go through the permitting process and then have to wait for a public referendum on whether they can proceed with a housing tract or shopping center.

"The economic impact of Amendment 4 is likely to be quite large and the unintended consequences accompanying them are a much more severe set of problems than we see now," Harper told the News-Press.

But a spokesman for the Amendment 4 campaign told the News-Press that the TaxWatch study was sponsored by big-business interests that want to keep the current system, which gives them undue influence on growth-management decisions.

"This is just another attempt by part of the 'No on 4' growth machine to make up facts to scare voters," said Wayne Garcia, a spokesman for the Amendment 4 campaign. "What has cost Florida untold jobs and higher taxes is the current system of growth. . . . Amendment 4 would end the boom-and-bust cycle of Florida real estate speculation and provide a more stable economic platform, resulting in more investment in our state, not less."

Political history

The Florida Supreme Court approved the proposed amendment in 2006, ruling that it deals with a single subject and that its ballot language is accurate. On June 17, 2009, the court handed Hometown Democracy a major victory when it struck down a 2007 law that allowed voters to revoke their signatures from petition drives, a law that was championed by Hometown Democracy's opponents. After the law passed in 2007, opponents had used it to send letters to those who signed the Hometown Democracy petition, and 13,000 of them agreed to revoke their signatures.

On June 22, 2009, Secretary of State Kurt Browning certified Amendment 4 after backers obtained more than the required 676,811 signatures, clearing the way for the measure to appear on the ballot. Observers say other recent developments are working in Hometown Democracy's favor, including a bill (SB 360) signed by Gov. Charlie Crist on June 1, 2009, that will ease the burden developers have had in helping to pay for local roads to accommodate their projects. The new law is so extreme, its opponents say, that it will drive even moderates to back Hometown Democracy's amendment.

Another issue that could potentially affect the debate is a decision by lawmakers this year to leave the Department of Community Affairs (DCA) in limbo by failing to reauthorize its existence as required by a law passed in 2006.That year, state lawmakers passed the Florida Government Accountability Act, which requires the legislature to review and reauthorize state agencies every 10 years. The DCA, the state's growth-management agency, was among a handful of agencies to come under review in 2010. Lawmakers, many of whom have been critical of the agency's control over local planning decisions, chose not to reauthorize the agency.

While the DCA can function as usual without the vote of confidence, it could be viewed as a shot across the bow by lawmakers. Under the law, the agency would be abolished on July 1, 2011, if lawmakers choose not to reauthorize by then and instead transfer the agency's responsibilities to other departments.

Hometown Democracy supporters see the Legislature's lack of support for DCA as another reason the public needs to control growth decisions and are expected to make it an issue during the upcoming campaign to approve Amendment 4.

DCA Secretary Tom Pelham told Jacksonville.com that a vote to renew the DCA would have sent a signal that the state will continue to manage development without Amendment 4. "I think the failure of the House to re-enact sends the opposite message," he is quoted as saying.

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What they're saying

"The only reason to not support the Hometown Democracy Amendment is if you like seeing unchecked urban sprawl; if you like to sit in traffic on a road that wasn't built for the proper capacity in time; if you enjoy seeing wildlife suffer because there isn't any place else for them to go." — The Sierra Club

"The Vote on Everything amendment would cause Florida's economy to permanently collapse. If you like the recession, you'll love Amendment 4. According to a study conducted by The Washington Economics Group, Amendment 4 will reduce Florida's economic output by $34 billion annually. Given Florida's precarious economic climate, that's the last thing our state needs." — Florida2010.org

"There is enough approved development to create jobs and revenue and to accommodate population growth of more than 80 million people in the state, with more being proposed as you read this. At what point does the growth game end in a state surrounded by saltwater, an ocean infiltrating its perimeter?" — Dori Sutter, Amendment 4 coordinator

"I admit to being in an impossible personal position of not knowing at this time how I am going to vote on this issue. I think I am going to wait and watch the next session of the Florida Legislature to see if there is any hope that maturation of the leadership understands the critical nature of the decisions that must be made if we are to reverse or continue the era of the great Ponzi scheme." — Nat Reed, vice chairman of the Everglades Foundation

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Comments Received:

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9/1/2010 - A.Tilton
I do not understand The Sierra Club position that this amendment will check urban sprawl. If comprehensive plans are not changed, then many areas that are one unit per five acres will be developed to accomodate growth and will create the ultimate in urban sprawl.