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A Discussion: NIMBYism Part Two* Florida’s Hometown Democracy Amendment

Environmental & Land Use Law

On June 18, 2003, the Florida Division of Elections approved a constitutional amended petition form for Florida’s Hometown Democracy Amendment (Serial Number 03-23). The amendment seeks to amend Article II, §7 of the Florida Constitution (General Provisions—Natural Resources and Scenic Beauty).

The ballot title is “Referenda Required for Adoption and Amendment of Local Government Comprehensive Land Use Plans.”

The ballot summary is:

Public participation in local government comprehensive land use planning benefits Florida’s natural resources, scenic beauty and citizens. 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 plan amendment shall be subject to a vote of the electors of the local government by referendum, following preparation by the local planning agency, consideration by the governing body and notice. Provides definitions.

Some critics of Florida’s Hometown Democracy Amendment complain that it reflects a “not in my backyard” (“NIMBY”) perspective. However, the “NIMBY” vernacular is repugnant to well-established Florida law. Moreover, the Florida Hometown Democracy Amendment concerns jurisdiction-wide planning and is not particular to any individual’s backyard.

There has long been a “special injury” standing requirement for environmental and land use matters in Florida. In recent decades, there has been some relaxation of that general requirement. Notably, the special injury requirement remains in place for the fundamental standing to challenge a development order as being inconsistent with a local government comprehensive plan. Standing is limited to one who is an “affected person” and one must allege and prove “an adverse interest” that “shall exceed in degree the general interest in community good shared by all persons.”1

Critics have misunderstood, or misrepresented, the fundamentals of Florida’s Hometown Democracy Amendment. The initiative does not encompass “applications for permits, rezoning, site plans, government annexation, and any matters requiring land use changes to the comprehensive plans [sic].”

Florida’s Hometown Democracy Amendment is not directed to local government development orders (e.g., building permits), nor to local government land development regulations (e.g., rezonings).2 Instead, the proposed amendment initiative concerns the legislative function of enacting or amending local government comprehensive plans.

The Florida Supreme Court has recognized the legislative nature of comprehensive plan amendments, including “small-scale” future land use map amendments.3

Florida law presently allows, albeit limited, referenda on comprehensive plan amendments.4 The statute, enacted in 1995, provides:

An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.

The Florida Hometown Democracy Amendment is deeply rooted in the most basic notion of Florida government: “All political power is inherent in the people.”5

Legislative power resides in Florida’s electorate, and the electorate has the power to limit the power previously delegated to elected representatives.

In Florida Land Company v. City of Winter Springs, 427 So. 2d 170 (Fla. 1983), Justice Ehrlich wrote for a unanimous Florida Supreme Court:

The citizens of the State of Florida in drafting and adopting the 1968 Constitution reserved certain powers to themselves, choosing to deal directly with some governmental measures. The referendum, then, is the essence of reserved power.

The importance of citizen participation in local government comprehensive land use planning is fully acknowledged in existing law.6

The failure of the status quo implementation of Florida’s planning laws was recognized by Governor Jeb Bush when he established the Growth Management Study Commission in July 2000.7 That commission called for increased public participation in local planning, but the lack of government funding was not responsible for the failure of the commission’s goal of “enhancing citizen involvement.”8 Moreover, many of the commission’s recommendations purporting to further that goal concerned development-related litigation procedures, not fundamental public participation in planning.

Accordingly, much of the “growth management reform” touted by critics of Florida’s Hometown Democracy Amendment and recommended by the Growth Management Study Commission is irrelevant to the fundamentals of the Florida Hometown Democracy Amendment.

Instead of offering bromides of “visioning” or “proactive community outreach” encouraged by status-quo apologists for “growth management reform,” Florida’s Hometown Democracy amendment simply proposes to offer Florida voters the opportunity to amend Florida’s Constitution to put the people back in charge of the places where they live.

Florida Hometown Democracy, Inc., sponsor of the ballot initiative, maintains a Web site at www.floridahometowndemocarcy.com, which is a paid, political advertisement. The full text of the proposed amendment is provided on the approved petition form, which can be downloaded. The Web site also offers additional information regarding Florida’s Hometown Democracy Amendment. q

1 Fla. Stat. §163.3215(2) (2003).
2 See Fla. Stat. §163.3164(7), (8), (23), 380.04 (2003).
3 Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, 788 So. 2d 204 (Fla. 2001); Martin County v. Yusem, 620 So. 2d 1288 (Fla. 1997).
4 Fla. Stat. §163.3167(12) (2003), enacted in 1995 Fla. Laws ch. 322, §1.
5 Fla. Const. art. I, §1 (1968).
6 See Fla. Stat. §§186.002(2)(e), 187.201(26), 163.3167(11), 163.3181 (2003).
7 Executive Order 2000-196 (sixth “Whereas” clause).
8 Florida’s Growth Management Study Commission, Final Report (February 2001), pages 17–23

Ross Stafford Burnaman earned a B.A. from New College and a J.D. from Florida State University College of Law. He was admitted to The Florida Bar in 1984 and is in private practice in Tallahassee.
This column is submitted on behalf of the Environmental and Land Use Law Section, George F. Gramling III, chair, and Robert Manning, editor.

Environmental & Land Use Law