BEFORE THE FLORIDA SUPREME COURT
IN RE: ADVISORY OPINION
CASE NO.: SC08-318
TO THE ATTORNEY GENERAL
RE: FLORIDA GROWTH MANAGEMENT
INITIATIVE GIVING CITIZENS THE RIGHT
TO DECIDE LOCAL GROWTH MANAGEMENT CHANGES
INTERESTED PERSON FLORIDA HOMETOWN DEMOCRACY, INC.'S
MOTION FOR REHEARING AND/OR CLARIFICATION
Florida Hometown Democracy, Inc., pursuant to Rules
9.300 and 9.330, Florida Rules of Appellate Procedure,
respectfully moves for rehearing and/or clarification, and
states:
On December 8, 2008, this Court rendered its opinion,
which is reported at Advisory. Op. to Atty. Gen. re: Florida
Growth Management Initiative Giving Citizens the Right to
Decide Local Growth Management Plan Changes 33 Fla. L.
Weekly S966a (December 18, 2008).
Florida Hometown Democracy, Inc., an interested person,
respectfully submits that rehearing and/or clarification is
required because the Court overlooked or misapprehended
existing law authorizing referenda on comprehensive plans
and amendments, and the legal effect of the subject
initiative, as discussed below.
Existing Law Authorizes Land Use Plan Referenda
The Court majority may have been misled into the
erroneous conclusion that referenda are not presently
available for citizen action on land use plans and plan
amendments by part of the "Statement and Purpose" text of
the subject initiative.
The first sentence of "Statement and Purpose" provides
(emphasis supplied):1
The Legislative has enacted growth
management and land use planning
legislation; these laws do not provide
for voter's direct approval of the
resulting plans or amendments.
While existing legislation does not require referenda
on land use plans and plan amendments, existing law
authorizes such referenda under certain circumstances.
Section 163.3178(12), Florida Statutes (2008)("Scope of
Act") 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.
In Advisory. Op. to Atty. Gen. re: Referenda Required
for Adoption and Amendment of Local Gov't Comprehensive Land
Use Plans, 902 So.2d 763, 769 (Fla. 2005), this Court
acknowledged that statutory authorization of land use
referenda:
the statutory scheme in place allows
local governments to utilize a
referendum process in regard to a plan
1
This mischaracterization of existing law was repeated in
the Sponsor's Answer Brief, where it stated: "At present,
citizens have no right to force a referendum on changes to
their growth management plans...." [Sponsor's Answer Brief,
p. 17]. Indeed, as established by the City of St. Pete Beach
Charter, Section 3.15, some Floridians have an existing
right to referendum on all amendments to the local
comprehensive plan or plan amendment, which right was
secured by an initiative petition to amend the Charter.
[Florida Hometown Democracy, Inc. Appendix to Initial Brief;
and Citizens for Responsible Growth v. City of St. Pete
Beach, 940 So.2d 1144, 1149-50 (Fla. 2nd DCA 2006)].
2
amendment if the amendment affects more
than five parcels of land. See
§163.3167(12), Fla. Stat. (2004).
The Court repeated that quotation in its June 22, 2006,
opinion approving Florida Hometown Democracy, Inc.'s ballot
language. Advisory. Op. to Atty. Gen. re: Referenda Required
for Adoption and Amendment of Local Gov't Comprehensive Land
Use Plans, 938 So.2d 501, 504 (Fla. 2006).
In Citizens for Responsible Growth v. City of St. Pete
Beach, 940 So.2d 1144, 1149-50 (Fla. 2nd DCA 2006), the
Second District Court of Appeal held that a charter
amendment to require referenda for any comprehensive plan or
plan amendment affecting more than five parcels was
constitutional "not because they merely add another step in
an already detailed process but because they are
inferentially permitted by Section 163.3167(12)...."
After the decision in Citizens for Responsible Growth
v. City of St. Pete Beach, a majority of the voters approved
an amendment to the City of St. Pete Beach Charter to
require such land use referenda. Section 3.15 of the City
Charter was included in the Appendix to Florida Hometown
Democracy. Inc.'s Initial Brief in this cause.2
2
The St. Pete Beach referendum provision was created
through a charter amendment as authorized by Section
166.031, Florida Statutes. That process merely requires a
"petition signed by 10 percent of the registered voters as
of the last preceding municipal election." None of the
draconian limitations on the petition process that the
majority characterized as "details of the petition process"
(e.g. petition can only be signed by registered voters at
certain government offices within a sixty-day period) are
3
So, contrary to the "Statement and Purpose" text of the
subject initiative, Florida's existing land use planning
legislation does "provide for" referenda with respect to
some comprehensive plan amendments. The majority opinion
clearly overlooked or misapprehended existing law on land
use referenda.
The Initiative Would Limit Existing Referenda Rights
The Court majority overlooked or misapprehended the
legal effect of the subject initiative.
The majority opinion provides in relevant part:
The current ballot title and summary do
not mislead voters into thinking that
the amendment would extend a right to
decide while in actuality the amendment
would effectively restrict opportunities
for voters to decide local growth
management plans. The proposed
amendment states that it will operate
"[i]n addition to any power or ability
of voters to participate in growth
management planning processes provided
by this Section or by general law."
Thus, the proposed amendment, even with
its petition requirements, will not have
the effect of limiting rather than
expanding opportunities for voters to
become involved in the adoption and
amendment of local growth management
plans.... Because the Smarter Growth
amendment will not conflict with or
restrict any existing rights to subject
local growth management plans to local
referenda, the lack of detail concerning
the petition process does not render the
title and summary misleading.
Id. at S969 (emphasis in original).
When viewed properly in pari materia with the full text
of the initiative, it is clear that the subject initiative
part of St. Pete Beach's referendum
4
process.
would limit existing rights under Section 163.3167(12),
Florida Statutes.
The majority opinion relied only on the first sentence
of the "Statement and Purpose" text of the Floridians for
Smarter Growth, Inc. initiative. However, the full text of
the initiative is more specific and relevant to the legal
effect of the proposal than that first sentence.
The second sentence of the "Statement and Purpose" sets
out the "chief purpose" -- "The purpose of this amendment is
to provide a limited opportunity for voters to approve or
disapprove these plans or amendments."
The third sentence of the "Statement and Purpose"
provides in relevant part: "[t]his amendment would limit
such referenda to situations where a sufficient number of
persons file a petition seeking such a referendum during a
set period of time."
The plain language of this phrase is
to limit the use of the referendum power regarding land use
plans or plan amendments -- properly described as a "limited
opportunity" in the second sentence.
The last sentence of the "Statement and Purpose"
provides:
This amendment is intended to modify
existing law, permit flexibility in
future growth management-related
legislation (except rules which would
affect voters' ability to petition for
referenda), and pre-empt or supersede
recent proposals to subject all
comprehensive land use plans and
amendments to votes, thus balancing
competing interests without overburdening voters.
5
The only "existing law" which could be "modified" by
the initiative is Section 163.3167(12), Florida Statutes
(2008), which implicitly authorizes local government
referenda on some land use plan amendments (as in St. Pete
Beach).
Indeed, Floridians for Smarter Growth, Inc.'s Brief
specifically cites to Section 163.3167(12), Florida
Statutes, and to Advisory. Op. to Atty. Gen. re: Referenda
Required for Adoption and Amendment of Local Gov't
Comprehensive Land Use Plans, 902 So.2d at 763, and states
that the initiative "modifies that statutory law."
[Sponsor's Initial Brief, p. 20].
As for prospective, future legislation, the stated
intent is to forbid "rules (sic) which would affect voter's
ability to petition for referenda." Advisory. Op. to Atty.
Gen. re: Florida Growth Management Initiative Giving
Citizens the Right to Decide Local Growth Management Plan
Changes 33 Fla. L. Weekly at S967a.
In addition to overlooking or misapprehending the
"Statement and Purpose" language, the Court failed to credit
subsection (b) in the text of the proposal.
It provides in
relevant part (emphasis supplied):
If a valid and sufficient Florida Growth
Management Initiative Petition is not
filed for a particular plan or
amendment, notwithstanding any other
provision of this Section, or of general
law, no referendum on that particular
plan or amendment shall be held pursuant
to this Section.
6
This language is clearly intended to preempt any other
legal right for a referendum on a local land use plan or
plan amendment.3
One cannot reconcile one, general phrase in subsection
(a) ("in addition to any power or ability of voters to
participate") with very specific and repeated references in
the "Statement and Purpose" text and subsection (b) to
preempt any referendum on a plan or plan amendment under
Article II, section 7 or under general law (including
Section 163.3167(12), Florida Statutes).4
Simply put, the initiative is intended to "modify
existing law", and "notwithstanding any other provision of
this Section or of general law" a referendum could only be
held on a land use plan or plan amendment if a "valid and
sufficient" Florida Growth Management Initiative Petition
were filed.
The Court majority clearly overlooked or misapprehended
the legal effect of the initiative. Since the legal effect
of the initiative will be to limit or modify existing
3
Notably, subsections (a) and (b) both refer to "this
Section" meaning Article II, section 7 of the Florida
Constitution. So, while subsection (a) promises an
additional power or ability to participate in planning
processes, subsection (b) clearly limits the use of a
referendum on a local plan or plan amendment to only the
"Florida Growth Management Initiative Petition."
4
Indeed, the Sponsor states that "[t]he Smarter Growth
amendment allows a referendum only if a valid and sufficient
petition is duly filed and at least 10% of the voters of the
affected city or county sign the petition." [Sponsor's
7
rights, by providing a "limited opportunity," the ballot
title and summary are defective for omission of material
information and for use of the phrases "giving citizens the
right to decide" and "allows Floridians to call for voter
approval..."
As such, the majority opinion is inconsistent with
prior precedents, including but not limited to: Advisory Op.
to Atty. Gen. re: Amendment to Bar Government from Treating
People Differently Based on Race in Public Education, 778
So.2d 888 (Fla. 2000); Advisory Op. to the Atty. Gen. re:
Right of Citizens to Choose Health Care Providers, 705 So.2d
563 (Fla. 1998).
The ballot title and summary are clearly misleading and
fail to fairly put the voter on notice of the legal effect
of the proposed amendment.
WHEREFORE, Florida Hometown Democracy, Inc., an
interested person, respectfully moves for rehearing and/or
clarification of the Court's December 18, 2008 opinion in
Case No. SC08-318; asks the Court to withdraw that opinion,
and to issue a new opinion striking Floridians for Smarter
Growth, Inc.'s initiative from ballot consideration, and
granting such other relief as is just and proper.
Respectfully submitted,
_______________________
Ross Stafford Burnaman
Attorney at Law
Initial Brief, p. 6].
8
Fla. Bar No. 397784
1018 Holland Drive
Tallahassee, Florida 32301
(850) 942-1474
Counsel for Interested Person
Florida Hometown Democracy, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U.S. Mail to the following
persons this ___ day of January 2009.
Honorable Bill McCollum, Attorney General
Louis F. Hubener, Chief Deputy Solicitor General
The Capitol, PL-01
Tallahassee, Florida 32399-1050
Stephen H. Grimes, Esquire
Holland and Knight, LLP
P.O. Drawer 810
Tallahassee, Florida 32302
Susan L. Kelsey, Esquire
Kelsey Appellate Law Firm
115 N. Calhoun Street
Tallahassee, Florida 32301
_______________________
Ross Stafford Burnaman
CERTIFICATE OF FONT
I HEREBY CERTIFY that the foregoing was word processed
using Courier New, 12-point font in compliance with Rule
9.210(a)(2), Florida Rules of Appellate Procedure.
______________________
Ross Stafford Burnaman
Attorney at Law
Fla. Bar No. 397784
1018 Holland Drive
Tallahassee, Florida 32301
(850) 942-1474
9
Counsel for the Sponsor
10