MEMORANDUM. Mayor and Town Commission. Paul Gougelman, Town Attorney. SUBJECT: Rezoning Referendum. DATE: July 15, 2013

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1 MEMORANDUM TO: FROM: Mayor and Town Commission Paul Gougelman, Town Attorney SUBJECT: Rezoning Referendum DATE: July 15, 2013 Recently, I have received several questions from Commissioners and Members of the P&Z Board with regard to the changes to state law and how that affects the referendum provision for rezonings set forth in the Town Charter. 1 The Town Manager has asked that I research this issue and report to you, especially given that the owner of the Osceola Building has indicated an interest in seeking a rezoning of his building. 2 In short, it is my opinion, as a result of changes to state law adopted in 2013, that for the time being referenda for rezonings are not permitted by Florida law. BACKGROUND AND ANALYSIS: In 2005 the electorate approved Section 6.06 amending the Town Charter. In 2011, a further amendment was approved to preserve to the extent legally possible the people s right to approve a change in rezoning designations of property. The 2011 amendment was adopted based on a change in Florida law limiting citizen referenda on zoning matters. The Charter currently states: Sec REZONING APPROVAL. No rezoning of one single parcel of property or group of parcels of properties shall be effective that changes the zoning district classification from one zoning district to another zoning district until the rezoning proposal shall be approved by a majority of the Town electorate voting in a general or special election. The foregoing requirement to submit a rezoning proposal to the Town electorate shall only be effective if the Town Commission first certifies that submitting the rezoning proposal to the Town electorate is not prohibited by Florida , Charter of the Town of Melbourne Beach, Fla. Kim Rezanka. 2 This has been reported by the Osceola Building s attorney,

2 Page 2 law. Prior to any proposal being placed on the ballot, to the extent required by law the Town government shall make a determination whether the proposed rezoning is consistent with the Town's comprehensive plan. This provision shall apply regardless of whether the rezoning proposal is initiated by a property owner, member of the general public, the Town, or other person, natural, corporate, or otherwise. (emphasis supplied). During the 2011 legislative session Section (8), Florida Statutes, was amended to limit the ability of local governments to have citizen referenda with regard to development proposals, comprehensive plan changes, and rezonings. Since 2011, Section (8), Florida Statutes, has been amended four times, 3 the latest amendment being in The latest version of the statute is a substantial change from what previously existed. The key language is underlined. To understand the scope of the amendment, you will need to understand what the definition of a development order and a development permit is. Those definitions are set forth below following the new language set forth in Section (8), Florida Statutes Scope of act. * * * (8)(a) An initiative or referendum process in regard to any development order is prohibited. (b) An initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is prohibited. However, an initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is allowed if it affects more than five parcels of land and is expressly authorized by specific language in a local government charter that was lawful and in effect on June 1, 2011; a general local government charter provision for an initiative or referendum process is not sufficient. 3 See 7, Chap , 1, Chap , 1, Chap , and 3, Chap , Laws of Fla.

3 Page 3 (c) It is the intent of the Legislature that initiative and referendum be prohibited in regard to any development order. It is the intent of the Legislature that initiative and referendum be prohibited in regard to any local comprehensive plan amendment or map amendment, except as specifically and narrowly permitted in paragraph (b) with regard to local comprehensive plan amendments that affect more than five parcels of land or map amendments that affect more than five parcels of land. Therefore, the prohibition on initiative and referendum stated in paragraphs (a) and (b) is remedial in nature and applies retroactively to any initiative or referendum process commenced after June 1, 2011, and any such initiative or referendum process that has been commenced or completed thereafter is hereby deemed null and void and of no legal force and effect. (emphasis supplied) Community Planning Act; definitions. As used in this act: * * * (15) Development order means any order granting, denying, or granting with conditions an application for a development permit. (16) Development permit includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land. (emphasis supplied). It should be clear that the [a]n initiative or referendum process in regard to any development order is prohibited. A development order includes a rezoning. Thus, the zoning referendum requirement of Section 6.06 is currently ineffective. You may be interested in knowing what has started these legislative amendments. Opposition to development projects and changes in comprehensive plans in St. Petersburg Beach and Yankeetown 4 were substantial causes. 5 North of Tampa. 4 Yankeetown is a small municipality on Levy County on the West coast about 70 miles 5 See Florida House of Representatives Final Bill Analysis, Economic Development & Tourism Subcommittee, CS/HB-7019 at p.4 (2013 Sess.).

4 Page 4 An excerpt from the Final Bill Analysis of the Florida House Economic Development & Tourism Subcommittee with regard to the CS/HB-7019 from the 2013 Session is set forth below. It gives a good historical summary. In 2006, voters in St. Pete Beach amended the city s charter to require voter referendums on all future changes to comprehensive plans, redevelopment plans, and building height regulations. 6 This process, often called Hometown Democracy, caused delay in the local development process. 7 In November 2010, Florida voters decided against implementing Hometown Democracy statewide with a 67.1 percent no vote on Amendment 4. 8 Shortly thereafter, in March 2011, voters in St. Pete Beach repealed the town s Hometown Democracy provisions by percent. 9 The 2011 Legislature passed HB 7207, known as the Community Planning Act. The bill prohibited local governments from adopting initiative or referendum processes for any development orders, comprehensive plan amendments, or map amendments. 10 At the time, very few local governments had a land use referendum or initiative process in place. 11 One of these affected governments, the 6 Is St. Pete Beach a Valid Case Study for Amendment 4? St. Petersburg Times, March 19, Retrieved from: (2/25/13). 7 Id. 8 See, November 2, 2010 General Election Official Results provided by the Florida Department of State. Retrieved from: Date=11/2/2010&DATAMODE= (2/26/13). 9 See, 2011 Municipal Election Results provided by the Pinellas County Supervisor of Elections. Retrieved from: (2/26/13). 10 See, The Community Planning Act, s.7, ch , L.O.F., 2011 CS/HB Yankeetown. 11 Longboat Key, Key West, Miami Beach, and the Town of

5 Page 5 Town of Yankeetown (Yankeetown), had a charter provision which specifically authorized a referendum vote on comprehensive plan amendments affecting more than five parcels of land. 12 Following the enactment of HB 7207 (2011), Yankeetown filed a complaint in the Leon County Circuit Court against the Department of Community Affairs (DCA), now the Department of Economic Opportunity (DEO), stating its desire to maintain its charter provision. 13 In September 2011, DCA and Yankeetown reached a proposed settlement agreement contingent upon the Legislature passing, and the Governor signing into law, a proposed amendment to the Community Planning Act. 14 The resulting bill, CH/HB 7081 (2012), was designed to allow charter provisions like that of Yankeetown to remain valid. The bill was intended to have a limited impact, protecting only those local government charter provisions that: 1) were in effect as of June 1, 2011, and 2) authorized an initiative or referendum process for development orders, comprehensive plan amendments, or map amendments. 15 The Legislature passed the bill on March 7, 2012, and the Governor signed CS/HB 7081 (2012) into law on April 6, CS/HB 7081 (2012) left open the possibility for an interpretation that allowed all referendum or initiative provisions in effect as of June 1, 2011, not merely those specifically for 12 See, Town of Yankeetown, FL v. Dep t of Econ. Opportunity, et. al., No CA (Fla. 2d Cir. Ct. 2011), Town of Yankeetown's Amended Complaint for Declaratory Judgment, p. 3 (Aug. 9, 2011). 13 Id. The complaint alleged that ch , L.O.F., violated the single subject provision in s. 6, Art. III, State Constitution, and that it was read by a misleading, inaccurate title. Yankeetown also alleged that the law contained unconstitutionally vague terms and contained an unlawful delegation of legislative authority. The city of St. Pete Beach also filed a motion to intervene as a defendant in the case, on the same side as the state. 14 Settlement Letter between the Department of Community Affairs and St. Pete Beach and Yankeetown, Re: Case No CA (9/28/2011). 15 Section 1, ch , L.O.F.

6 Page 6 development orders, comprehensive plan amendments, or map amendments. In October 2012, the Palm Beach County Circuit Court ruled that CS/HB 7081 (2012) extended the exception to all local government general referendum or initiative charter provisions in effect as of June 1, The court held that such a general provision encompassed specific land amendments, such as development orders and comprehensive map amendments, despite the charter language not specifically authorizing either. This broad interpretation is contrary to the intent of the 2011 and 2012 legislation, which sought to restrict these voting mechanisms. pc: Members of the Planning & Zoning Board 16 City of Boca Raton v. Kennedy, et. al., No CA MB (Fla. 15th Cir. Ct. 2012), Order denying plaintiff, City of Boca Raton s and Intervener/Co-Plaintiff, Archstone Palmetto Park, LLC s Motions for Summary Judgment and Granting Defendants Motion for Summary Judgment. J. Chernow Brown, Oct. 16, 2012.