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Request for Attorney General Opinion ~or~7-2 lo(~ 3~ ,L~u~T ~l rd/tNG`'f ~euC r ~-~ ~orn~a1~ CITY OF MIAMI BEACH OFFICE OF THE CITY ATTORNEY LETTER TO COMMISSION TO: Mayor David Dermer Members of the City Commission and/ Jorge M. Gonzalez, City Manager FROM: Jose Smith, City SUBJECT: Request for Attorney Gen al Opinion -- interpretation of Florida Statute Section 163.3167(12) prohibiting referendum regarding development orders/comprehensive plan amendments affecting five or fewer parcels of land. DATE: September 12, 2007 Consistent with the City Commission's directive of September 5, 2007, attached please find my request for an Attorney General Opinion regarding the above-referenced matter. As stated therein, this request focuses upon Vice Mayor Bower's proposed ballot question concerning "Hospital Districts" and the effect of Florida Statute, Section 163.3167(12) on said ballot measure. Inasmuch as the proposed ballot measure will be placed on the City Commission's October 17, 2007 Commission Meeting agenda, I have requested that the Attorney General provide his opinion on an expedited basis. Upon receipt of the Attorney General Opinion I will forward it to you, and advise you accordingly. cc: Robert Parcher, City Clerk JO/sc F:latto\OLIJ\CAO-LTC\?.GO.doc OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE -MIAMI BEACH, FLORIDA 33139 OFFICE OF THE CITY ATTORNEY L O R JOSE SMITH City Attorney Bill McCollum Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 D A Telephone: (305) 673-7470 Facsimile: (305) 673-7002 Via FedEx Express Delivery Re: Request for Attorney General Opinion -- interpretation of Florida Statute Section 163.3167(12} prohibiting referendum regarding development orders/comprehensive plan amendments affecting five or fewer parcels of land Attorney General McCollum: Pursuant to § 16.01(3), Florida Statutes, and consistent with the Miami Beach City Commission's directive made at its September 5, 2007 meeting, I hereby request an advisory opinion from the Attorney General's Office relating to the official duties of the City's elected officials with regard to their placement of a measure on a future ballot for electorate vote. Specifically, the City Commission will consider at its October 17, 2007 Commission Meeting the following ballot question: Shall the Charter be amended to provide that when a "Hospital District" is rezoned, such property shall (in accordance with procedures established by ordinance) be rezoned to a district or combination of districts with a floor area ratio no greater than the abutting land (sharing lot line), except that "Hospital District" property exceeding 15 acres may exceed this limitation if adequate buffers are provided to protect abutting uses? This request for opinion is premised upon statutory limitations on land use referendums established in the "Local Government Comprehensive Planning and Land Development Regulation Act" (hereafter "Act"), Florida Statutes Chapter 163, Part II. Specifically, § 163.3167(12), Florida Statutes provides that: *,!~. .~ September 12, 2007 1700 Convention Center Drive -- Fourth Floor -- Miami Beach, Florida 33139 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. Although the City Commission possesses inherent power to place legislative matters on a ballot, the subject Statute may affect the elected officials' ability to present to City voters the instant proposed Charter Amendment. Accordingly, guidance is sought with regards to the following question: WHETHER THE TERM "REFERENDUM PROCESS" CONTAINED IN SECTION 163.3167(12), FLORIDA STATUTES, REFERS TO A STANDING PROCEDURAL REQUIREMENT MANDATING FUTURE REFERENDA BASED UPON SPECIFIC APPLICATIONS FOR DEVELOPMENT ORDERS / COMPREHENSIVE PLAN AMENDMENTS, AND NOT TO BALLOT MEASURES WHICH IMPOSE GENERAL POLICY STATEMENTS REGARDING LAND DEVELOPMENT REGULATIONS WITH NO REQUIREMENT FOR FUTURE REFERENDA? LEGAL ANALYSIS Rules of statutory construction require that statutory language be given its plain and ordinary meaning, unless the words are defined in this Statute or by the clear intent of the legislature. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984). The express language of the Statute supports the conclusion that the term "referendum process" is limited to measures which impose requirements for future voter approval of specific land development applications, and not to measures which implement general policy statements regarding land development regulations with no requirement for future referendums. The Act defines the term "development order" as: "an order granting or denying an application for a development permit." § 112.3164(7), Fla. Stats. Further, a "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." § 112.3174(8). Although the term "referendum process" is not defined in the Act, the express language of the Statute states that such process must be "in regard to" a "development order" or "comprehensive plan amendment" -- inasmuch as the meanings of these terms are expressly premised upon individual applications for land development approval, the term "referendum process" must similarly be limited to voter approval of a specific application for land development approval. The subject statutory language thus evinces a legislative intent to prohibit ballot measures with regard to individual development applications. (See, Elza v. City of Miami Springs, Florida, Case No. 06- 2 :)FFICF Of- THE CITY ATTOfiN~" - 1700 CON\/EN'f'!ON CENTER DRIVE -MIAMI BEACH, FLOP.IDA 33139 00399 CA 21 (Fla. Cir. Ct. 2006), invalidating a ballot question as violative of ,~ 163.3167(12), Fla. Statute, in that it impermissibly required voter approval of specific development orders.) Conversely, ballot measures that solely implement municipal policy statements, and are neither based upon individual land development applications or require future referendum for approval of said individual land use applications, do not fall within the prohibition of § 112.3167(12). Consistent with the general proposition of statutory construction that the mention of one things implies the exclusion of another -- "expressio unius est exclusio alterius," Peeples v. State, 35 So. 223 (Fla. 1903) -- the legislative prerogative of seeking voter approval to establish policy matters without a future referendum appears beyond the Act's reach. Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144 (Fla. 2d DCA 2006), is the only reported relevant decision and supports this position. In Citizens the Court held that a proposed ballot measure requiring a unanimous vote of a municipal governing body to approve a comprehensive land use plan amendment did not violate § 163.3167(12), Florida Statute, because "it would establish only an internal operating or procedural rule regarding the number of commissioners who must agree on an amendment affecting five or fewer parcels....the procedural requirement imposed by the proposed amendment does not qualify as a `referendum' proscribed by the Statute." Id. at 1148. Citizens thus established that the adoption of a rule of policy by referendum is not a "referendum process." The City of Miami Beach's proposed ballot question similarly implements policy and is therefore not a "referendum process" prohibited by the Statute. Due to the time constraints imposed by the County Elections Department, the Miami Beach City Commission has scheduled consideration of the proposed ballot question for its October 17, 2007 Commission Meeting agenda, -- the City thus respectfully requests expedited consideration of this matter. Any question concerning this opinion request may be directed to First Assistant City Attorney Gary Held at (305)673-7000 ext. 6532. Very truly rs,~ Jose S~rlith City Attorney JO/sc F:\atto\OLIJ\LTRS\Atty Gen requesting AGO.doc Copies of cited caselaw are attached hereto. 3 OFFICE OF'THE CfTY ATTORNEY - 1?f10 CONVEP!TION CENTER DRIVE -MIAMI BEACH, FLORIDA 33139 ' 81i'28/2086 12:32 39~37400E1 TANNEB~LJM WEISS LL? PAGE 02 IN THE CIRC[TI'T COURT OF THE u~ JUDICIAL CIRCUIT IN AND FOR MIAHII-AADE COUNTY, FLORIDA G~ JURISDICTION DIVISION Case No. 06-0099 C~- 2t ERIC B. ELZA, JOSE CAI.LENO, GII.BERTO R. SANTAN.A., and - w~rL1.IANt woz.AR, .. - Plaintiffs, ~. CITY OF MIAMI SPRINGS, FLORIDA, a municipality, and LESTER 30I.A, the 3upe~zvisox of Elections for Miamd-Dade County, l:lorida, Defendants. F~fL" JUAGM~N'l G~iGlN'dTNG 1~Fs[~ARAT'aRX,~.ND ~Y RF.I.LSF T'IiTS MATTER having come before this Court upon Plaintiffs' Motion for Final Hearing on the Complaint for Declaratory arsd Injuncdve Relief on January i8, zoo6, and the court having been duty advised in the premises, the Court makes the following findings of fact and conclusions of law. The City of Miatui Springs passed a resolutioaa calling for the holdi~o4g of a special election on',hiesday, January 31, zoob for the following proposed Charter .Amendment: Shall the Charter of the Gity of Miami Springs be amended to read as follows: Development of properties within the City of Miami Springs shall not exceed the maximum allowable floor areas, densities, or bwldiutg heights set out is the Miami Springs Cvraprehensive Plan or City Code in effect on tba date this amendment a arpprwsd, whichever provisions are most restrictive, unless approved by a rn~jor~- vote of the city's electors. Thfs provision shall not be repealed, revised, amended or superseded without a majority vote of the at~s electors? [sic] i 81/20; 2996 12:32 30537408°i ?;NNESAtJM WcTSS LLP ?AGc B3 Thereafter, the City noticed the election pursuant to the Home Rule Amendment and Charter of Miami-Dade County, Florida. On January 9, aoo6, four citizens, taxpayers, and residents of the City of IVlami Springs filed a complaint alleging the proposed charter amendment was unconstitutional and unlawful becatve the charter amendment attempts to change the way the caitizens amend the municipal charter in violation of the ]rorida Conetittrtion; requires a referendum where the plorida Statutes specificxl]y prohibit a referendum in violation of Florida law; and is vague, uncertain, and misleading. On January i8, 2006, Save Miami Springs, Inc., anon-profit corporation whose pRUpose is to protect end preserve the quality of lifie in the City of Mai Sp=iags, moved to intervene as a~n imterested party in favor of the placement of the proposed baIlot question~~ on the ballot. The Court granted the motion to tntetvene. liamediately thereafter, the Court held an Emergency Final Hearing on the Complaint, because when there is a dispute as to the constitutionality of a proposed charter amendmea~t; the Court should consider and determine t21e amendment's t+alidity prior to an election. West Palm Beach Assoc. of ~ireftghters Locat Union 7Z7 v, Board of Cty Commissioners of the Cty of West Palm Beach, 448 So. 2d 1Z32, ~t4 (Fla. 4m DCA, 1984), Save Miami Springs, Inc argued that Plaintiffs' Complaint was untimely because Plaintiflfe were dilatory when they filed a Complaint on the azaeadinent on Januaryy g, 2006, a mere 22 days before the election. Ballot items are advertised to give citizens proper notice of an election and give those who object . 2 el/26/280t ~?:32 38537420°1 TANtveEalM1 WE:.SS LLP PAGE 04 to the constitutionality of the provision an opportunity to challenge in the provision in Court. Armstro~tg v. Harris, TT3 So. 2d 7, u (P1a. 2000). In this case, the ballot provision was advertised in the month of December. ~Feilure to file a petition seeking a declaratory judgment three and a half weeks before an election is not dilatory. Id. Plaintiffs are concerned citizens who, upon receiving notice, required a r~.sonable period of time In which to meet and discuss the matter, organize, cllgrt a course of action, reta9n coiiasel, research tle issues and file snit. Id. Plaintiffs' complaint was timely $led. T'he Proposed Crhatter A,aae,ndment it wnconetitutionel because it att~oapte to preempt the exelus~ve prorviaion for mnxtitcipal ehzrter amendments in the Miami-bade County Home Rune Amgndmatt. The Court now turns to the merits of the Plainti$s' allegations. F"ust, the Plaintiffs allege tb~at the proposed charter amendment is unconstitutional because it violates the exclusive provision for municipal charter anaendmeunt~s in the Miami-Dade County Home Rule Amendment The ~Y of Miami Sprfngs has only the powers conferred upon it by the Florida Constitution a~od the Miami-Dade County Home Rule Amendment and Charter. The Flo~da Constitution establishes municipalities and gives them the power to govern themselves except as otherwise provided by law. FIA. Coxsr. Art. V1II, §2(b) (2005). 'through the home rule charter amendment, it requires Miami-Dade County to provide an exclusive process for municipalities in Dade County to make, amend or repeal their oven charters. Fi~-. Coxsr. Art. VIR, §u(g) (2005). City of .&liami v. Miami Assoc. of ~"ireftghters, Local 58T, y44 So. 2d 565, 556 tom- 3d DG4 X999) (holding the Miami-Dade County Home Rule 3 ' 81/28!2066 12:32 303748061 7ANNESAUM WEISS LLP PAGE @5 Amendrneot makes the procedure for amendments to charters for municipalities eaclLtSive). As a result of the directive by the Florida Constitution, the Miami-Dade County Home Rule ,A~zaeadment and Charter zequires that in order to change the mutaidpal charter each `proposal approved by a majority of the electors voting on ssacl~t proposal shall became e~ectiva at the time feed in the proposal.A . Miami-Dade County Home Rule Amendrent and Chu~ar §S.o3 (emphasis added). The proposed charter amendment attempts to preempt the Florida , Constitution and provide that in order for a proposal to become effective, it most be approved by a majority vote of the city's electors, which ie vastly di#l'ereat than a majority of the electors wting on such proposal. The local government c~a govrzn only as provided by the Flarida Constitution. The Home Rule CharEea' Amendn~eat, as adopted into the Constitution, provides the exclusive means to amend a muaidpal charter in Miami-Dade County and provide for when a proposal is eve. If the Miami Dade County Nome Rule .A,raendment is violated; it is deemed a violation of the Florida Conatitution, because all provisions of the Metropolitan Dade County Home Rule Chaxtor adopted by the electors of Dade County are incorporated into the Florida Constitution. Ft..~,,. Coxsr. Art. VItI, §6(e) (2000. The proposed charter amendments attempt to supersede the Home Rule Charter.A-mendme~ is unconstitutional. Save Miami Springs, Inc. argued that the requirement in Qg.og of the Miami-Dade County Home Rule Amendment that "each proposal approved by a 4 81728.'2006 22:32 3853740BS1 TAhiNBAUM WEISS L!_.p PAGE 06 majority of the electors voting on such proposal shall become effective at the time fixed in the proposal' applies only to the sentence prior to lt, which .allows altrez~Aatc proposals to be submitted. However, this argument flies in the face of the plain language of the Miami-Dade County Home Rule Chatter Amendment, which erplaine that when a proposed charter amendmmnnt (whether by citfzen initiative or otherwise) is submitted to the electors of the municipalities that the proposal shall be beard on a special electfon and copies of the proposal shall be made available to electors prior to the election. §fi.0~ Miami-Dade County Horne Rule Ch2,rterAmtendment (2005). . The proposed charter arnendraent would provide a new standard for repealing, revising or amendiag the city charter. 'I"he method for municipal charter amendments establiished by the bade County Home Mule Amendment and Charter is exclusive. The Miami-Dade County Charter provides that "[e]ach muniapality shaIl have the authority to ea:ercase all powers relating to its local affairs not inconsistent with this Charter. ° Miami-Dade .County Home Rule Amendme~ and Charter $5.02 (aoo5) (emphasis added). T'lxerefore, the Dade County Home Rule Amendment and Charter preempt auy attempt to amend the bnethod of charter z~evision and the proposed ehazter amendment is unconstitutional. The proposed c.~mrter an~e~nd~aotent is naco~nsiitntitonal becsttsse it is in dfrect conflict with Ffa. 9t1t. §i6s.3i6y(i2). A municaipality is not perautted to e~tercise any powers other than those branted directly bythe constitution or authorized as valid by duly enacted general or special acts. Barry v. Garcia, 573 So. zd 932.937 (tea. 3d DCA xggx); Miami- Dade Home Rule Amendment §6; ~.~,. CoNST. Art VIII, §u(6). An amendment 5 81!20.'2@06 12:32 3053740861 TL:tdt~iE.B:+IJP+I wEISS tL° PACE e? to a munidpal charter is invalid if it is inconsistent or cannot coexist with general law. Charlotte County Board of County Commissioners v. Taylor, 650 So. 2d 146 (Fla. zd DCA 1995) (b-oldin8 a ~ ~P citizen initiative petition amendment to a home rule charter unconstitvtionaltiecause it was inconsistent with Fla. Stet 129 and 20o because 'counties operating under county charters sbaIl have all powers of local self-government not inconsistent ~-ith general laves; West Patin Beach Assoc. of Firefighters, Roca! Union ~7 v. Bd Of Cty. Commissioners of Cty of Wtst Palm Beach, 448 So. 2d 1212, 1214. (F_1a. 4~ DCA 1984) (holding a citizen initiative petition city chatter amendment was unconstitutional because it conflicts with oaneral law contained in Chapter qqy). T'he proposed charter amendment is is direct conflict with ~'he. Local Government Comprehensive Planning and Land Development Regulation Act (hereina#ter "the A,ct'}. ~ ~e Act gives municipalities end counties power and authority set out in the act to plan for their future growth and dev~loprnent. Fla. 3tat. §~t63.3i6~ (1) (loos). The intent of tb~e ed i& to guide and control future development Flat. Stet. §16$.3161 (2) (zoos). It is the intent of the legislature that §§x63.3161 through 163.321, provide the necessary statutory direction and basis for municipal offl©als to carry out their Land development rogulation powers, duties, and re_sport9ib]lities. Fla. Scat. §163.3i61(S) (2005). The Acc specifically prohibits an initiative or referendum process in regard to any dev~elopmeut order or in regard to any local comprehensive plan anaendmeat or map amendment that affects five or fewer parcels of land. ' F'la. Stet. §z63.3x6~ (i2) (zoob). ~'he Act defines "development order" and "parcels of land." A 6 81/28/2096 ?2:32 3@SS7d8BSi TANh~BAUM Wc~SS LLP PACE B8 "development order" is an order grnating or denying am application for a developmtent permit. _ Fla. Stat. ~i63.3a.64 (7) (2005). A "development permit" is a binding 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 laud_ Fla. Star. §163.3164 (9) (zoo5). "Parcel of land" mesas a~+ quantity of land capable of beung described with such definiteness that fts locations and boundarie9 may be established, which is designated by ib owner or developer as land m be used, or developed as, a unit or which has been used or developed as a unit. Fla. Stat, §~63.gi64 (z6) (zoos). A developmatrt order for a parcel of lead is an order on a zoning penuit, rezoning, variance, or other permit for the development of developmental unit Qf 'lard. The Act prolzibita an initiative or referendum pmcess in regard to individual development schemes. A referendum ~ not permitted unless there are at Ieast 6 development units or parcole of land at issue. In contrast, file charter amendment requirq an election when there is any development of propezty exceeding limits unposed by the owncent code. Save lvliami Springs, Inc. argued that the Fla. 9tat. §t63.3~6?(12) is unconsti'utional. It did not raise a~ specxf'ic authority for this assertion. The ' Florida Sta#utes xegtrire that if is aAeged to be unconstitutional, tha Attorney General or the state attormoy of the judicial eircait in which the action is pending shall be served with a copy of the complaint and be entitled to be hegrd. Fla Stet. ¢86.ogi (2005). If gave Miami Springs, Inca believes Fla. Stat. §i63.3i6y (z2) is unconstitutional, it should seek an opinion from the .Attorney General prior to 7 81/292886 12:32 3853?4e8E1 TANNEEAUM wETSS LLP PAGE 09 arguing the statute should not preempt a municipal charter amendment Fla. $tat. §163.316 (z2) wa9 enacted over to years ago and has not been deemed unconstitutional to date. Save Miami Springs, Ines allegation of unconstitutionality cannot preva~ in this proceeding since it cannot be entertained without notice to the Attorney General. _ k1a_ Stat. §263.3x6y(i2) prohibits a referendum requirement for development of property, while this charter amendment atbempb to institute a referendum requirement for the development of property in Miami Springs. The pxopoaed charter amendment is in direct conflict with the Florida Statutes and is therefoxe unconstitutional, Because the Court finds the proposed charter amendment unconstitutional on the fast tw+o gxounds argued by Plaintiffs, it is unnecessary fox the Court to reach the issue of whether the proposed euooemdment is vague, uncertain, and misleading. In conclusion, the charter amendment is ~mconstitutional for two reasons. First, it attempts to preempt the Miami~Dade dome Rule Amendment provision providing that each "proposal approved by m~jox ity of the electors voting on sacb~ proposal shall become effective at the time fined in the proposal" and change it to require approval by a majority of the city's electors in order for a repeal of the proposed chartex Pmendment to become efftotive. Second, it directly conflicts with Fla. Scat. §~t63.3z6~ (~). Muniapal law is subordinate to state law and where there is a conflict, state law w~l preva~. Article VIII, §2(b) of the FToride~ Constitution prohibits uaunicipalities fxona enacting provisions that conflict with state statute. Because the proposed charter 81/26/2086 12: ?2 3853~<30E2 TaNNEBaJM WEISS LLP PAGE 1A amendment conflicts with Fla. Stet. ~ib3.316~ (I2), it violates Art. VIII, §2(b) of the Florida Constitution and h is invalid. Because the proposed charter amendment fs unconstitutional, it should not be submitted to the voters. To submit an unconstitutional charter amendment to the voters would be a vain and useless thing. Dade Cty. v. Dade Cty. League of MuniripaIities, so4 So. 2d 512, 514 (~'la- 1958)• Therefore, tb~ Supervisor of Elections and the City of Miami Springs are enjoined fmm having an election on the proposed charter amendment oa January 31, zoo6. It is hereby ORDERED AND ADJUDGED that the Motion for Hearing is granted; the Miami Springs Charter Amendment set for election on January 3t, 2006 by resolution Zoos-3Soi of the City Council is declared to be unconstitutional; and the election schedwed for January 31, 2oob on this issue is ez~oined Judgment is hereby entered in favor of Plaintiffs and' against Defendants, and the Court hereby reserves jurisdiction to entertei~a a motion bq Plaintiffs for costs and fees. • AND ORDERED in chambers is Miami-Dade County, Florida, this day of January, 2oob. ,~ ~ ~.,^,~ .f Copies furnished to: Cotwsd of Reo~rd A. Stettin ' t Stettin, Sen3Qr ~udg~ 9 -~ We~Re~rt~_Imaae~P~ 940 So.2d 1144, 31 Fla. L. Weekly D2196 Briefs an_d.O~her_Related_Doc_u.ments District Court of Appeal of Florida, Second District. CITIZENS FOR RESPONSIBLE GROWTH, a political committee, Terry Gannon, Chairman, Linda Chaney, Treasurer, and Harry Metz, Deputy Treasurer, and Intervenors Muriel Desloovere and Cheri Haigley, Appellants/Cross-Appellees, v. CITY OF ST. PETE BEACH, a Florida municipality, Appellee/Cross-Appellant. No. 2D06-550. Aug. 18, 2006. Rehearing Denied Sept. 6, 2006. Background: City brought declaratory judgment action against political action committee claiming that proposed amendments to city charter that would require voter approval of changes to city's comprehensive plan were preempted by current law. The Circuit Court, Pinellas County, Walt Logan, J., ruled that three of the four proposed amendments were unconstitutional as having been preempted, but the fourth amendment was not preempted and should be on the ballot for a voter referendum. Parties appealed. Holdings: The District Court of Appeal held that: j~ trial court had jurisdiction; j2.~ proposed amendment that would require unanimous approval by city commission for plan changes affecting five or few parcels was not preempted by state law; and ~~ proposed amendments that would require referendum approval for changes in development plans and comprehensive plans or amendments was not preempted by state law. Affirmed in part, reversed in part, and remanded with instructions. West Headnotes KC jil Ke~Cite Notes 268 Municipal Corporations <_ -~268II Governmental Powers and Functions in General -- ::- 268k58, k. Construction of Charters and Statutory Provisions. Most Cited Cases District Court of Appeal, if possible, must interpret an amendment to the municipal charter as constitutional, in recognition of premise that all political power is inherent in the people. KC f 2] KeyCite Notes ~. --268 Municipal Corporations ~- 26.8I. Creation, Alteration, Existence, and Dissolution :- 268IL~ Amendment, Repeal, or Forfeiture of Charter, and Dissolution 268k46 k. Amendment of Charter or Special Act. Most Cited Cases When a petition for amendment to a municipal charter can have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in httn://web2.westlaw.com/result/d~eumenttexf acnx~~nncamnlP=Fa1cPR,c~,=Cn1~r.Yrcarv;~o_ nai~ ~i~nn~ contravening the organic law, it must be submitted to the electorate. K [3] KeXCit~_ Notes ,. 268 Municipal Corporations 2ti8I Creation, Alteration, Existence, and Dissolution 268I C Amendment, Repeal, or Forfeiture of Charter, and Dissolution . 268k46 k. Amendment of Charter or Special Act. Most Cited Cases Only when a petition for amendment to the municipal charter is unconstitutional in its entirety may it be precluded from placement on the ballot. K LJ KeyCiiie Notes -268 Municipal Corporations 268I Creation, Alteration, Existence, and Dissolution :.~~ 268I C Amendment, Repeal, or Forfeiture of Charter, and Dissolution :=-~268k46 k. Amendment of Charter or Special Act. Most Cited Cases If the opponent of a proposed amendment to a municipal charter in good faith questions the constitutionality of the ordinance in its entirety and on its face, the court may properly consider that question in advance of an election concerning its approval. K ~5.~ KgyCte.N_.otes. :.~ 268 Municipal Corporations 268IV Proceedings of Council or Other Governing Body ~- ~268IV B Ordinances and By-Laws in General ,:<~268k111 Validity in General ~_ -~268ki11 2~ k. Conformity to Constitutional and Statutory Provisions in General. Most Cited Cases Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation by municipalities may not conflict with state law, and if conflict arises, state law prevails. K KeyCite Notes 118A Declaratory ]udgment :- • 118AIII Proceedings : • 118AIII(C) Parties •; =118Ak291 k. Parties in General. Most Cited Cases K 3~3_ Stipulations Cite Notes •: 363k14 Construction and Operation in General 363k14~ k. In General. Most_Cited Cases Trial court had jurisdiction over declaratory judgment action brought by city seeking to keep citizen proposed amendments to city charter off the ballot as facially unconstitutional, even though trial court httn://web2.westlaw.com/result/documenttext.asnx?dnccamnle=FalcP,~cv=Cnl;tR,cPn~;rP= n4/t ~i~nm did not precisely determine that all parties were property before the court, given that parties stipulated to entry of supplemental order finding that citizens group and individuals were proper party defendants in the action: KC [71 K~Cite Notes .~ 414 Zoning and Planning :-- 414I In General 414k14 k. Concurrent and Conflicting Regulations. Most Cited Cases K -414 Zoning and Planning Ke~ite Notes.. :-- 414II Validity of Zoning Regulations ::::414IIr'C Procedural Requirements ,. -4i4k134 Notice and Hearing ::- 414k134_1 k. In General. Most Cited Cases K 414 Zoning and Planning ~Cte_Notes._ . -414III Modification or Amendment ,= 414III B Manner of Modifying or Amending ~::~>414k198 k. Number of Votes Required. Most Cited Cases Citizens' proposed amendment to city charter that would require unanimous approval by city commission for land use plan or amendment affecting five or fewer parcels was not preempted by state law that prohibited a referendum on such plans, given that proposed amendment would establish only an internal operating or procedural rule for the commissioners. West's F.S.A. ~ 163.3167_(12.j. KC L81 KeyCite Notes :- 268 Municipal Corporations ~:~ 268X Police Power and Regulations :- 268X A Delegation, Extent, and Exercise of Power ~: 268k592 Concurrent and Conflicting Exercise of Power by State and Municipality •_-- 268k592L1~ k. In General. Most. Cited .Cases Preemption essentially takes a topic or field in which local government might otherwise establish local laws and reserves that topic for regulation exclusively by the legislature. K j91 KeyCite Notes 414 Zoning and Planning ~_- 414I In General 414k14 k. Concurrent and Conflicting Regulations. Most Cited Cases K 4.14 Zoning and Planning Key._Cite.No~es_ ,: 414II Validity of Zoning Regulations 414I11Cj Procedural Requirements ,:~ -414k136 k. Approval of Voters or Property Owners. Most Cited Cases httn'//weh2.wectlaw.r.~m/recitlt/(jf1l11mAnttP.Xt acnx9~ln~camnle=FalcP.Qicu=Cr~litRrcPn,;rP= (1Ql1~/7llm _ _.0_ _. KC -41.4 Zoning and Planning KeyCite JVotes -414III Modification or Amendment ~.-- 414III B Manner of Modifying or Amending 414k191 k. In General. Most Cited Cases Citizen petitions for proposed amendments to city charter, which would require voter approval by referendum for changes to community development plans or city land use plans or amendments, were not preempted by state statutory framework implementing policy on growth and redevelopment, given that statute that prohibited referendum approval for changes in local comprehensive plan or amendment affecting five or fewer parcels, by inference, permitted referendum approval for changes to development or comprehensive land use plans and amendments affecting six or more parcels. West's F.S,A. § 163:316762.1. *1146 Kenneth L. Weiss, Treasure Island, and R Michael LarrinaQa of The Larrinaga Law Group, P.A., Tampa, for Appellants/Cross-Appellees. Thomas G. Pelham of Fowler, White, Boggs, Banker, Tallahassee, and Timothy P. Driscoll, St. Petersburg, for Appellee/Cross-Appellant. PER CURIAM. In this appeal we consider whether the electorate of a Florida ~~.ity should be given the opportunity to vote for or against amendments to the municipal charter that would require voter approval for certain changes to the city's land use and community development plans. After collecting the required signatures, Citizens for Responsible Growth, a political action committee, properly submitted four petitions for referenda to amend the charter of the City of St. Pete Beach. The proposed amendments seek to circumscribe the City Commission's authority to amend the Ciry's comprehensive land use and community development plans as defined in chapter 163, Florida Statutes (2005), by requiring voter approval of such changes. The four proposed amendments qualified for placement on the ballot. Rather than placing the proposals on the ballot, however, the City filed for declaratory relief pursuant to chapter 86, Florida Statutes (2005), claiming that the all-encompassing legislative directives contained in chapter 163 preempted the proposed amendments. The defendants in the action are the political action committee, its officers, and two intervening private citizens. (Hereafter, this opinion will refer to the defendants collectively as "the Citizens.") After a hearing, the circuit court entered a summary final judgment, an order denying the Citizens' motion for rehearing, a judgment on the pleadings, and an order supplementing the final summary judgment and judgment on the pleadings. These orders determined that the proposed amendments contained in Petitions I, III, and IV were unconstitutional as having been preempted and, therefore, would not appear on the ballot. The Citizens appeal from this judgment. The circuit court also ruled that the proposed amendment contained in Petition II did not suffer from a constitutional infirmity and allowed it to be placed on the ballot. The City cross-appeals that determination. We reverse the Citizens' main appeal and affirm the City's cross-appeal, and hold that all four proposals should be presented to the electorate of the City of St. Pete Beach. KC KC KC ~ f2j f31 We begin with the premise that "all political power is inherent in the people and that we must, if possible, interpret the amendment as constitutional." Charlotte. County..8d..._of County Commis v. Tavior, 650 So.2d 146, 148 r~Fla. 2d DCA 19~ (citing Miami Do%hins~Ltd. v. Metro_Dade Counter 394 So_2d 981 (Fla._19811). Our consideration of the issue is limited to whether the challenged petitions, individually, contravene the Florida Constitution as inconsistent with state law. When a petition can "have a valid field of operation even though segments of the *1147 proposal or its subsequent applicability to particular situations might result in contravening the organic law," it must be submitted to the electorate. Dade County v. Dede Count~League of Muni~alitie5~104.`3o.2d 512, 515..(1958). Only when a petition is unconstitutional in its entirety may it be precluded from placement on the ballot. This avoids the possible expenditure of substantial amounts of public money to do a "vain and useless thing." Id. a 14. httn://weh2.westlaw.cnm/re~ult;c~cir.nmenttext acnx~rinrcamnle=FalcaXrcv=Cnlit.Q~cPn,irP= (1Q/17/~f-M [4] ~ [5] ~ If the opponent of a proposed amendment "in good faith questions the constitutionality of the ordinance in its entirety and on its face[,] the court may properly consider that question in advance of an election concerning its approval." W. _Palm._Beach Assn. of Fir~.fighters~ Local Union 727 v.._Bd. of Cif Commis of the Citx of W._ Palm Beach, 448 So.2d_.12.12~ 1214 (Fla. 4th DCA 1984. "The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation by municipalities may not conflict with state law. If conflict arises, state law prevails." Id.__at. 1214-15 (quoting Miami Beachy. Rocio Cor _, 404 So.2d 1066_.,. 1070 Fla. 3d DCA 1981)). See also Tribune Co. v. Cannella, 458 So 2d 1075, 1079 (FIa.1984 (holding that "the legislative scheme of the Public Records Act has preempted the law relating to any delay in producing records for inspection" and could not be contravened by city policy). It j61 As a threshold argument, the Citizens claim that the circuit court lacked jurisdiction to entertain the City's declaratory action. We disagree. The circuit court properly analyzed this question in its order on jurisdiction. See Gaines._v__~iry_of Qrlando,_450. So,_2d_1174__(Fla..__5th DCA 1.84_) (holding that the circuit court has discretion to make apre-election determination of the facial constitutionality of any proposed amendment slated to appear on the ballot). Although the circuit court did not precisely determine that all parties were properly before the court, we note that the parties stipulated to the court's entry of a supplemental order finding that the defendants were proper party defendants to this declaratory judgment action. The Proposed Amendments to the City Charter The Citizens' petitions presented four proposed amendments to the City charter for the electorate's considerations. Because our dispositions are based on arguments applicable to one or more of these petitions, the proposed amendments FN1 are set forth in their entirety below: FN1. The section designations refer to the City charter. The underlined portion is apparently the summary or title of the section. Petition I Section 3.15 Voter approval required for approval of comprehensive land use plan or comprehensive /and use p/an amendments. A comprehensive plan ("Plan") or comprehensive plan amendment ("Plan Amendment") (both as defined in Florida Statutes Chapter 163) shall not be adopted by the City Commission until such proposed Plan or Plan Amendment is approved by the electors in a referendum as provided in Florida statute Section 166.031 or by the City Charter or as otherwise provided by law. Elector approval shall not be required for any Plan or Plan Amendment that affects five or fewer parcels of land or as otherwise prohibited by Florida *2148 Statutes including but not limited to Florida_Statutes [sic] Section 163..3.1.67. This amendment shall become effective immediately upon approval by a majority of the electors voting in such referendum. Petition II Section 3.16 Unanimous City Commission approval required for approval of comprehensive land use plan or comprehensive land use plan amendments affecting five or fewer parcels. A comprehensive land use plan ("Plan") or comprehensive land use plan amendment ("Plan Amendment") (both as defined in Florida Statutes Chapter 163), which Plan or Plan Amendment affects five or fewer parcels as defined in Florida Statutes. Section 163.3167, shall only be adopted by the City Commission (the "Commission") by a unanimous vote of the Commission. This charter amendment shall become httr+•//.uPh7 ~uPCtlavv rnm/rPCnlt/tln~nmenttPYt acn~~riin~cam»la=FalceR~cv=CnlitRrcPrvire= (1QJ1~/7(1(17 ...b.. ., .. ~ . effective immediately upon approval by a majority of the electors voting in such referendum. Petition III Section 3.17 Voter approval required for approval of or effectiveness of a community redevelopment plan. A community redevelopment plan as defined in Florida Statutes Section 163 shall not be adopted by the City Commission until such proposed community redevelopment plan is submitted to a vote of the electors by referendum as provided by Florida Statutes Section 166 031 or by the City Charter. This amendment shall become effective immediately upon approval by a majority of the electors voting in such referendum. Petition IV Section 3.18 Voter approval required for increase in allowable height of structure. No amendment to the City's Land Development Code providing for an increase in the allowable height (as defined by the Land Development Code) of any structure (as defined by the Land Development Code) shall be adopted by the City Commission until such amendment is submitted to a vote of the electors by referendum as provided by Flori~_Statute S 166 031 or by the City Charter. This amendment shall become effective immediately upon approval by majority of the electors voting in such referendum. Discussion Petition II K j71 The City contends that the circuit court erred when it permitted Petition II to appear on the ballot. The proposed amendment requires a unanimous vote by the City Commission for matters affecting five or fewer parcels under the comprehensive land use plan. The City relies on section 163.3167(12), which .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 proposed charter amendment does not clash with chapter 163 because it would establish only an internal operating or procedural rule regarding the number of commissioners who must agree on an amendment affecting five or fewer parcels. We agree with the Citizens that the procedural requirement imposed by the proposed amendment does not qualify as a "referendum" proscribed by the statute. In other provisions, such as emergency ordinances in section 3.11(b), the City charter also requires asuper-majority vote. Furthermore, we find no merit in the City's argument that the amendment is vague, ambiguous, *1149 or misleading. We affirm the cross-appeal. Petitions I, III, and IV Petitions I, III, and IV all require that certain measures be submitted to a general referendum before final adoption: the City's comprehensive land use plan or amendments thereto in Petition I; the City's community development code or amendments thereto in Petition III; and changes in building height restrictions in Petition IV.FN2 The comprehensive land use plan and the community redevelopment code of local governments are addressed in parts II and III of chapter 163, in which the legislature enunciated a statewide growth and redevelopment policy. The statutes specify processes for the adoption and amendment of a comprehensive plan and a redevelopment code. For example, in part II, titled "Process for adoption of comprehensive plan or plan amendment," section 163.3184(13) httn•//wPh~ wectlaw rnm/rPCiilt/~nnnmPnttext acnY~~~ecamnlP=FalcP.?rcu=4nlit.Q~cPn~irP= (14117/~M7 C ~ wbv . va states that the "proceedings under this section shall be the sole proceeding or action for a determination of whether a local government's plan, element, or amendment is in compliance with this act." Part III contains similar provisions. See, e. g., § 163.356 ("[A]ny county or municipality may create a public body corporate and politic to be known as a 'community redevelopment agency.' "). The statutes also address public hearing and administrative review requirements. FN2. Although we do not address the wisdom of the proposed amendments, we note that Petitions III and IV appear to provide merely for an advisory opinion by the electorate, unlike Petition I, which requires that the electorate must approve the question before the City Commission may finally adopt the land use plan or any amendment to it. KC j81 In finding that chapter 163 preempted the proposed amendments in Petitions I, III, and IV, the circuit court recognized the general principle that "[p]reemption essentially takes a topic or field in which local government might otherwise establish local laws and reserves that topic for regulation exclusively by the legislature." Cit~of Hol/y_wood v_Mulligan,._9~4 So..2d 1238,_1243 (Fla_ 2006 (quoting Phantom ofC/earwater, Inc v Pinellas County, 894 So.2d 10111018 fFla. 2d DCA 200_). The Citizens advance the contrary view: that the proposed amendments are neither inconsistent nor irreconcilable with the statutory framework and thus are constitutional. As authority, the Citizens cite this court's opinion in Hillsborough County v Florida Restaurant Assn, 603 So.2d 587 l Fla. 2d DCA 199., which held that a county ordinance requiring that establishments serving alcohol post signs warning of the dangers of drinking alcohol was neither expressly nor impliedly preempted by statutes relating to food protection or by Florida's interest in regulating alcohol packaging and sales. See also Phantom of Clearwater, 894 So.2d at 1020 (holding that a Pinellas County ordinance regulating the business of fireworks sales was, with one minor exception, lawfully enacted, because chapter 791 does not expressly or impliedly preempt the field of fireworks regulation). Similarly, in this case, the proposed City charter amendments and the statutory framework regulating the adoption and amendment of comprehensive land use plans and community redevelopment codes can co-exist. Conclusion K j~ We hold that the proposed amendments are neither facially unconstitutional nor unconstitutional in their entirety, not because they merely add another step in an already detailed process but because they are inferentially permitted by section 163,_3167(12.).: *1250 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. . Clearly, the Legislature has proscribed use of the initiative and referendum process in matters affecting five or fewer parcels of land. And just as clearly, the Legislature inferentially permitted use of the initiative and referendum process in development orders or comprehensive plans or amendments affecting six or more parcels. This conclusion logically derives from a general principle of statutory construction, expressio unius est exclusio alterius, which means that "express mention of one thing is the exclusion of another." Inman v State~916 So 2d 59, 61 (Fla. 2d DCA 2005). Thus, because the law expressly describes the particular situation to which the prohibition against referenda applies (e.g., amendments affecting five or few parcels), the inference must be drawn that those situations not included by specific reference (e.g., amendments affecting six or more parcels) were intentionally omitted or excluded. See, e. g., Gay v. Singletary, 700 So.2d 1220_~FIa.199~. Language from a recent Florida Supreme Court advisory opinion, albeit dicta, further bolsters our reasoning: (T]he statutory scheme already in place allows local governments to utilize a referendum process in httn•//wPh7 wectla~~.~ ~nm/rPCUIt/rlnrnmPnttwt acnv9~inrcamnlP=Fa1cP.Q~c~~=CnlitRrePr~riro= noii ~»nn~ --o- - --~ regard to a plan amendment if the amendment affects more than 1<ve parcels of land. See § 163.317 j12) Fla.__Stat._.(2004) ("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."). Thus, this initiative would mandate a process already approved by the Legislature in certain instances. Ad_v_iso~.Op._ to Arty G.en __Re.:__Referenda__Re~uired fob. Adoption &_Amendm...en[..of_Loca_ l__Gov't Comprehensive Land Use Plans, 938 So.2d 501~04~FIa.. 2006). (quoting, with emphasis, Advisory Oo to the Att'y Gen re • Referenda Required for Adoption & Amendment of Local Gov't Compre~nsive Land Use P/ans~902 So_2d_.7~3 _.769 (Fla_200.~a).FN3. Rather than conflicting with the statutory framework, the proposed City charter amendments complement it: they are the flip side of the proverbial coin. FN3. In its 2006 Land Use Plans opinion, the supreme court approved an issue for placement on the ballot that, if passed, will render our discussion moot. The relevant language of the proposed constitutional amendment is as follows: Establishes that before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan, such proposed plan or plan 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 as provided by general law, and notice thereof in a local newspaper of general circulation. 938 So.2d at 502. There should be no concern that such things as repeated refusals to approve a plan or amendment will thwart the statewide policy. Section 163.3167~2~ authorizes the Administration Commission to impose sanctions on a local government that fails to timely submit a plan; and subsection (3) empowers the responsible regional planning agency to adopt any missing elements of a local government's plan. Generally, however, "it would be inappropriate for this court to undertake to discuss in any measure either the wisdom or the lack of wisdom reflected by the proposed amendment." Dade County League of Munic~alities, 104 So.2d at 515;_ see also *1151 Gaines, 450 So.2d at 1178. But the citizens of the City of St. Pete Beach are entitled to express their views on how their City Commission should handle land use problems, despite a pervasive statutory framework implementing a statewide policy on growth and redevelopment. Because placement of the proposed amendments on the ballot does not conflict with chapter 163, we affirm the judgment as to Petition II, reverse the judgment as to Petitions I, II, and IV, and remand with instructions for the circuit court to enter judgment in favor of the Citizens and to order the City to place all four of the proposed amendments on the ballot. Affirmed in part, reversed in part, and remanded with instructions. CASANUEVA, SALCINES, and CANADY, JJ., Concur. FIa.App. 2 Dist.,2006. Citizens For Responsible Growth v. City of St. Pete Beach 940 So.2d 1144, 31 Fla. L. Weekly D2196 Briefs and Other Related Documents (B. ack__to._top) • 2D06-550 (Docket) (Feb. 8, 2006) END OF DOCUMENT httn•//wPh2 ~uPCt!aw rnm/reaiilt/titx•nmPnttext acnx7~inrcam»IP=Fa1cARrc~~=RnlitRrcPn~irr~= (1Q/1 7/7(1(17 --o-' --~ West Reporter Image (PDF) (C) 2007 Thomson/West. No Claim to Orly. U.s. Govt. Works. httn://weh2.wectlaw.~~m/rPCnlt/tjnr»mPnttPxt acnx~ti~camnlP=FalePRrcv=CnlitRrePn,irP= (1Q/1 ~/~(N17