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Advisory Legal Opinion
Number: AGO 98-78
Date: December 11. 1998
Subject: Safe neighhorhood district boundary change, referendum
Mr. Richard Kane
Hallandale City Attorney
400 South Federal Highway
Hallandale, Florida 33009-6433
RE: MUNICIPALITIES--SAFE NEIGHBORHOOD DISTRICTS--SPECIAL
DISTRICTS--ORDINANCES--REFERENDUMS--whether municipality
may enact ordinance for changing boundaries of safe
neighborhood district and include requirement that majority
of electors in district approve any such change. Part IV,
Ch. 163, Fla. Stat.
Dear Mr. Kane:
You have asked for my opinion on substantially the
following question:
When a municipality has created a local government safe
neighborhood district pursuant to section 163.506, Florida
Statutes, may it subsequently adopt an ordinance requiring
that any change in the boundaries of the safe neighborhood
district will be effective only after approval by a
majority of the original district's electors?
In sum:
An ordinance providing for an expansion or increase in the
boundaries of a previously created local government
neighborhood improvement district with ad valorem taxing
power must be approved by a vote of those property owners
who are subject to the district's taxing power, including
those property owners in the area proposed for inclusion.
According to information you have submitted, the City of
Hallandale created the Golden Isles Safe Neighborhood
District in 1989. The diatrict was created by ordinance
pursuant to s@ction 163.506, Florida Statutes, and is
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funded by a levy of ad valorem taxes within the district.
·The city commission serves as the board of directors of the
district and the district also has an advisory council made
up of property owners and residents of the district.
Recently, citizens of certain areas of the city that adjoin
the district's boundaries requested that the commission
consider expanding the district's boundaries to include
these adjoining areas. This proposal was subsequently
withdrawn. However, the city is now considering the
question of whether it may validly amend the original
ordinance creating the district to authorize a change in
district boundaries only when such a change is approved by
a majority of those electors residing inside the original
district boundaries.
In drafting and approving the 1968 Constitution, the
citizens of the State of Florida reserved to themselves the
power to deal directly with some governmental measures
through referendum. [1] As provided in the Florida
Constitution:
"Article I. Section 1. Political power.--All political
power is inherent in the people. The enunciation herein of
certain rights shall not be construed to deny or impair
others retained by the people •
Article VI. Section 5. General and special elections.--•.
. Special elections and referenda shall be held as provided
by law. II
It is Article VI~ section 5, Florida Constitution, that
actually controls the manner in which the power of
referendum may be granted, that is, as "provided by law."
Under the Constitution, the phrase lias provided by Lew"
means as passed "by an act of the legislature. If (21
The Florida Constitution and statutes make specific
provision for referenda relating to the imposition of ad
valorem taxes by local governmental bodies. Article VII,
section 9(b), Florida Constitution, authorizes the levy of
ad valorem taxes by special districts at a millage rate
authorized by law, but requires that any such levy be
"appr-oved by vote of the electors who are owners of
freeholds therein not wholly exempt from taxation. II This
constitutional provision is implemented for districts, such
as the Golden Isles Safe Neighborhood District, in section
163.506 (1) (c), Florida Statutes (1998 Supplement). The
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statute author~zes the district to levy ad valorem taxes on
"real and personal property up to two mills annually.
The Golden Isles Safe Neighborhood District is funded by a
levy of ad valorem taxes within the district. Any action to
extend the boundaries of the district would necessarily
implicate a tax burden in this new area. Under the
statutory and constitutional provisions discussed above,
such a burden may not be imposed on property owners without
referendum consideration. Thus, an ordinance to extend the
boundaries of a special district with taxing authority must
be approved by those who will be taxed to provide these
special improvements or district expenses and cannot be
limited to exclude any portion of them.
The Charter of the City of Hallandale contains the
following provision:
"The qualified electors of the City shall have power to
require reconsideration by the Commission of any adopted
ordinance and, if the Commission fails to repeal an
ordinance so reconsidered, to approve or reject it at a
City election, provided such power shall not extend to the
budget or capital program or ordinance relating to
appropriation of money or levy of taxes. II [3]
Clearly, this provision recognizes the approval or
rejection of ordinances by referendum and extends this
power to all the qualified electors of the city. However,
this general referendum power in the city charter cannot
preempt the specific constitutional and statutory
requirements for referenda relating to the imposition of ad
valorem taxes discussed above. (4]
In sum, it is my opinion that an ordinance providing for an
expansion or increase in the boundaries of a previously
created local government neighborhood improvement district
must be approved by a vote of those property owners who
will be subject to the district's ad valorem taxing power
including those property owners in the area proposed to be
added. However, it may be advisable for the Legislature to
revisit these statutes and make its intent more clear
regarding the modification of safe neighborhood district
boundaries and the procedures to accomplish these changes.
Sincerely,
Robert A. Butterworth
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~ttbrney General
RAB/tgh
[1] See, Florida Land Company v. City of Winter Springs,
427 So. 2d 170 (Fla. 1983). See also, City of Eastlake v.
Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct. 2358,
49 L.Ed.2d 132 (1976).
[2] Broward County v. Plantation Imports, Inc., 419 So. 2d
1145, 1148 (Fla. 4th DCA 1982).
[3] Article VII, s. 7.03, Hallandale Code.
[4] A municipality cannot forbid what the Legislature has
expressly licensed, authorized or required, nor may it
authorize what the legislature has expressly forbidden (12
Fla. Jur. 2d Counties and Municipal Corporations e. 187;
Rinzler v. Carson, 262 So. 2d 661, 668, (Fla. 1972); City
of Miami Beach v. Rocio Corp., 404 So. 2d 1066, 1069 (Fla.
3d DCA 1981), pet. for rev. den., 408 So. 2d 1092 (Fla.
1981); Wyche v. State, 619 So. 2d 231. 237 (Fla. 1993).
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