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FLORIDA LEGISLATURE AMENDS EMINENT DOMAIN LAWS
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CONSTITUTIONAL CRISIS
By Keith W. Bricklemyer
Vice President, Public Affairs
National Association of Office and Industrial Properties (NAIOP)
The United States Constitution has been amended 27 times in 215 years. The Florida Constitution has been amended 95 times since 1970, and is 5 times longer than the United States Constitution. In last year's election, Florida voters passed an amendment to the Florida Constitution initiated by animal rights activists that governs the way pregnant pigs are confined. So far this year, 52 citizen-initiated amendments to our State Constitution have been filed with the Division of Elections. The latest amendment filed is to limit the length of school bus rides to two hours, one-way. While this may be a great idea, it does not belong in our State Constitution. Florida is one of only 24 states that allows such initiatives, and the process is clearly running amok.
Governor Bush and the legislature are searching for solutions. Both the House of Representatives and the Senate have formed Select Committees to seek public input. The Florida Chamber of Commerce is endorsing the adoption of a Joint Resolution by the Legislature to amend the citizen-initiative process in the August 31, 2004 primary election to increase the number of signatures required to put an amendment on the ballot and to increase the votes required for approval. To stay informed about, and participate in, the effort to cure this crisis, add the website "www.VoteSmartFlorida.org" to your favorites list. This is an effort worthy of your involvement.
The most troubling of the current batch of citizen-initiative amendments is the one proposed by a group calling itself Florida Hometown Democracy ("FHD"). This proposed amendment is to require a referendum before a local government may adopt a comprehensive land use plan or amend an existing one. FHD's premise is that the 1985 Florida Growth Management Act and our current system of comprehensive planning has not proven adequate to effectively manage the explosive population growth the State has experienced over the last 20 years. The problem is that their proposed cure is worse than the disease.
A little background is essential. Our current system of adopting or amending a land use plan is already extremely complex, costly and time consuming. A simplistic outline of Hillsborough County's process is as follows (the Procedures Manual is 51 pages long):
1. Filings are limited to two times per year (September and March).
2. Planning Commission (the "Local Planning Agency" or "LPA") Staff reviews the application (5 Months).
3. The LPA holds an advertised and noticed Public Hearing (Month 6).
4. The Board of County Commissioners ("BOCC") holds an advertised and noticed Public Hearing (Transmittal Hearing) to forward the amendment (or not) to the Florida Department of Community Affairs ("DCA") (Month 7).
5. DCA and other state agencies review and prepare an Objection, Recommendations and Comments Report ("ORC Report") (3 Months).
6. After receiving the ORC Report, the BOCC holds a second advertised, noticed Public Hearing (Adoption (or not) Hearing) (Month 11).
7. DCA reviews the adopted amendment for "compliance" with State law, the State Comprehensive Plan, the applicable strategic regional policy plan and Rule 9J-5 of the Florida Administrative Code.
8. An "affected person" may request an administrative hearing to challenge the results of either BOCC public hearing or an "in compliance" determination by DCA.
Does this sound like a process with inadequate public input? Does it make sense to expand public input by allowing all voters in a jurisdiction to vote on an amendment whether they are "affected persons" or not? Will such an approach yield better results, especially considering that in 2002 almost 9,000 plan amendments were processed? We believe the answers to all these questions is an unqualified "No!" That belief is shared by most planners and government officials we've talked to.
The anti economic development implications of this amendment being approved are nothing short of catastrophic. Depending on when a land use plan amendment reaches the stage at which it would be subject to a referendum (the amendment provides no guidance), and assuming local governments will not want to incur the expense of holding special elections, a final decision could be delayed up to two additional years pending the next general election. If such a plan amendment were to accommodate a new employment center desirable in all respects to all parties, such a delay could send the project to a competing state, even if a positive result appeared likely. The additional costs of such delays would also doom the good with the bad.
The current system of securing final approval of a proposed plan amendment includes an element of uncertainty. However, judging how a city council or county commission will vote is indisputably more predictable that foretelling the results of a referendum on an issue that most voters will know nothing about, and about which they may care even less. Further, the opportunity for NIMBYs opposed to any particular plan amendment to use the internet to gain support from voters who would like to lock the gates to Florida is chillingly real – and the rhetoric need not occur in a public hearing where allegations are subject to being verified.
If you accept the premise that our current comprehensive planning process does not necessarily produce the best results, you need not accept voter referendums as the only viable solution. If approved, this constitutional amendment would be the poster child for the rule of unintended consequences. Even if the additional delay, cost and uncertainty of plan amendments by voter referendum did not drive a good project elsewhere, the no-growth advocates in any jurisdiction could much more easily mobilize their cohorts to vote "no" than they could convince elected representatives, who must consider the welfare of the entire community, to do so. We would be forced to live with the very land use plans FHD says are no good. An article in the Summer 2003 issue of The Journal of the James Madison Institute concludes that the proposed amendment is "bad news" and that it would usurp the function of local government, polarize communities and enable no-growth advocates to advance their agenda under the guise of democracy. Here, here.