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Close call for will of the people

By Staff | Apr 13, 2012

Larry Schopp

As anniversaries go, number seven doesn’t usually get much attention. This year it should.

It was seven years ago that Sanibel citizens went to the polls and adopted the “Peoples Choice” amendments to the Sanibel City Charter. And there is reason to take special note this year, because we came very close to losing those amendments through an act by the Florida State Legislature that put them in jeopardy. More on that in a moment, but first a little background on the Charter amendments.

The “People’s Choice” amendments were about the fundamental right of citizens, by means of a referendum at the polls, to prevent or undo unwise or unpopular decisions of their elected representatives. The means of ensuring such referenda was to enshrine critical land-use protections in the Sanibel Charter, which would render them unchangeable without a vote of the people.

The Charter amendments were written by members of Committee of the Islands to help insure that Sanibel’s small town sanctuary character would never be compromised over the objection of its citizens. The formula is simple: There can be no weakening of fundamental land-use restrictions on (1) building height, (2) residential density, or (3) clearance and coverage of building lots, without voter approval.

The campaign for passage

Even a highly successful petition drive to put the amendments on the ballot was no guarantee they would be passed. During a hard-fought campaign for votes, a recurring argument against the amendments was that they were unnecessary because bureaucrats in the Florida Department of Community Affairs which had oversight over local land-use policy under the Growth Management Act would provide all the protection necessary.

Those of us who wrote and believed strongly in the amendments were not persuaded. We asked why Sanibel residents should trust the vagaries of state law or the state bureaucratic process to protect their vital interests. Instead, we proposed that the people themselves could do it more reliably by simply amending the City Charter. A majority of Sanibel voters apparently felt the same way and voted “yes” on the amendments.

In addition to giving citizens the peace of mind of knowing they are in control of their own destiny, at least on major land-use issues, the Charter amendments contained language which enabled action by the City Council on two long-neglected issues – post-disaster build-back and redevelopment – both of which have now been addressed.

Changes in the wind

Now let’s fast forward to Tallahassee in early 2011, where major changes were in the wind. Under the banner of job creation, economic growth and reduced state regulation, the state legislature scrapped the Growth Management Act of 1985 and replaced it with a much more development-friendly “Community Planning Act.” It also dismantled the Department of Community Affairs and replaced it with a relatively toothless “Department of Economic Opportunity.” These were fundamental changes in the state’s approach to land-use regulation that few would have anticipated a few years ago.

The argument against reliance on state bureaucrats to protect Sanibel’s character proved prophetic. For all intents and purposes, state oversight of the local comprehensive planning process is over. The very state law and state agency that opponents said made the “Peoples Choice” amendments unnecessary are now gone, and the focus at the state level is once again on growth not growth management.

Attack attempted on citizens’ rights

But that’s not all that happened. A year earlier, citizens concerned about Florida overdevelopment had tried, unsuccessfully, to enact a “hometown democracy” amendment to the state constitution that would have required voter approval of all comprehensive land-use plan amendments.

Subsequently the legislature, in what appeared to be a punitive overreaction to this failed effort, prohibited any “referendum or initiative process in regard to any local comprehensive plan amendment.”

In other words, the prohibition abolished the right of citizens statewide to reverse unwise or unpopular land-use decisions made by local governing bodies! Since the “Peoples Choice” amendments could trigger a vote on changes to the Sanibel Plan which would involve building height or residential density, they were in potential conflict with state law and likely unenforceable a major setback for the right of self-determination for Sanibel citizens.

End of story?

That might have been the sad end of the story but for one final twist, involving the tiny north Florida town of Yankeetown. Like Sanibel, Yankeetown had a charter provision that required voter approval of certain comprehensive plan amendments, and it was not about to give that up without a fight. It retained Lee County attorney Ralf Brookes, who went to state court and challenged, on several grounds, the constitutionality of the new Community Planning Act.

The people in power in Tallahassee were understandably concerned. The Community Planning Act was a major legislative enactment, and they were reluctant to risk a successful court challenge. So, with a nod of approval from the legislative leadership, attorneys for the state agreed to a settlement by which the legislature would do some back-pedaling and “grandfather” any local charter provision like Yankeetown’s or, for that matter, Sanibel’s.

And that’s just what happened.

With little fanfare, the following new language was recently added to the Community Planning Act’s sweeping prohibition of referenda on plan amendments: “However, any local government charter provision which was in effect on June 1, 2011, for an initiative or referendum process in regard to local comprehensive plan amendments may be retained and implemented.” This legislation passed by overwhelming majorities in both houses and was signed into law by Governor Scott on April 6.

So, whether or not Sanibel’s “Peoples Choice” charter amendments are in conflict with state law has become a moot question, thanks to the Yankeetown case. If our amendments were in conflict, they no longer are. They are clearly grandfathered and fully enforceable, as written and that’s the end of the story.

Happy seventh anniversary!