HomeMy WebLinkAbout1995 05 10 Advisory Legal Opinion - Authority of Municipality to Amend Comp. Plan.pdfPage 1 0[6
Advisory Legal Opinion
Number: AGO 95-32
Date: May to, 1995
Subject: Authority of municipality to amend comp. plan
Ms. Patricia A. Petruff
General Counsel
City of Holmes Beach
1111 Third Avenue West
Suite 300
Bradenton, Florida 34205
RE: MUNICIPALITIES--COMPREHENSIVE PLAN--CHARTER-
REFERBNDA--preemption of authority of municipality to
amend comprehensive plan. s. 163.3189, Fla. Stat.
Dear Ms. Petruff:
You have asked for my opinion on substantially the following
questions:
1. Does section 163.3189, Florida Statutes, preempt
the authority of the City of Holmes Beach from adopting
a charter amendment that would require any increase in
density limitations contained in the existing
comprehensive plan to be approved by the voters of the
City of Holmes Beach?
2. Does a charter provision that requires voter
approval to increase density limitations contained in
the existing comprehensive plan result in unconstitu
tional denial of the due process rights of property
owners?
3. Does the reservation of power by referendum as set
forth in the Florida Constitution include the reserva
tion of comprehensive planning power?
In sum:
1. Section 163.3189, Florida Statutes, prescribes the
exclusive method for amending comprehensive plans that
have been found to be in compliance with the Local
Government Comprehensive Planning and Land Development
Regulation Act, Part II, Chapter 163, Florida Statutes.
This statute constitutes a preemption of this subject
to the state.
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,
2. This office cannot comment on the constitutionality
of proposed local legislation such as a charter
amendment.
3. The Florida Supreme Court has stated that the
referendum power can be exercised whenever the people,
through the Legislature, decide that it should be used.
The only case in which the Court has recognized such
authority deals with section 163.215, Florida Statutes,
involving a change in municipal zoning.
According to your letter the City of Holmes Beach is governed
by a charter adopted by the electors in 1976. Article XII of
the charter states that amendments to the charter may be initi
ated by ordinance or petition. Presently, the city council is
considering initiating by ordinance an amendment that would
establish density limitations. Your questions relate to the
effect of such an ordinance. While this office cannot construe
local legislation, an analysis of state law as it relates to your
questions is set forth herein.
Question One
Section 163.3189(1), Florida Statutes, provides that:
The procedure for amendment of an adopted comprehensive
plan or plan element which has been found to be in
compliance shall be solely as prescribed by this
section. (e.s.)
When the Legislature has prescribed how a thing must be done,
that method must be observed. When the controlling law directs
how a thing shall be done that is, in effect, a prohibition
against its being done in any other way. [1]
While the statute does not define the term "solely" it is the
rule that words of common usage, when used in a statute, should
be construed in their plain and ordinary sense. [2] "Solely" has
been defined as "without another: sing1y[;] to the exclusion of
all e1se[.]"[3] The term "sole" means "single; on1y[.]"[4]
Thus, the Legislature's use of the term "solely" to apply to the
amendment of an adopted comprehensive plan would mandate use of
section 163.3189 to the exclusion of any other method.
Although municipalities derive broad constitutional home rule
powers from section 2(b), Article VIII, Florida Constitution, [5]
one impediment to the exercise of these broad municipal powers
is the existence of a conflict with state law. [6] Municipal
ordinances are inferior in stature and subordinate to the laws of
the state. Therefore, an ordinance must not conflict with any
controlling provision of a state statute, and if any doubt exists
as to the extent of a power attempted to be exercised that may
affect the operation of a state statute, the doubt must be re
solved against the ordinance and in favor of the statute. A
municipality cannot forbid what the Legislature has expressly
licensed, authorized or required, nor may it authorize what
the Legislature has expressly forbidden. [7] However, while local
legislation may not conflict, in those areas that have not been
preempted by the state, legislation may be concurrent, i.e.,
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enacted by both state and local governments. [8]
The language of section 163.3189, Florida Statutes, constitutes
a preemption of this subject by stating that it is the sole
procedure for amendment of an adopted comprehensive plan. Thus,
a city is precluded from imposing additional, supplemental pro
cedures to those described in section 163.3189, Florida Statutes.
Question Two
Your second question requires comment on the constitutionality
of proposed local legislation, which is outside the scope of this
office's authority. Therefore, no response may be made to this
question.
Question Three
Your third question deals with the referendum power reserved to
the people in the 1968 Constitution as delineated by the Florida
Supreme Court in Florida Land Company v. City of Winter Springs,
a 1983 case. [9} The case itself dealt with the submission of a
city ordinance effecting a change in zoning for a specific parcel
of land to a referendum vote of municipal citizens.
The Court in the Florida Land case stated that:
The citizens of the State of Florida in drafting and
adopting the 1968 Constitution reserved certain powers
to themselves, choosing to deal directly with some
governmental measures. The referendum, then, is the
essence of a reserved power. (citations omitted) A
reading of article I, section 1 along with the words of
article VI, section 5 of our state constitution, makes
this abundantly clear:
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.
This referendum provision was not provided for in
such a general fashion in the Constitution of 1885.
Referendum provisions in that constitution dealt with
certain specific sections. The concept of referendum
is thought by many to be a keystone of self-government,
and its increasing use is indicative of a desire on the
part of the electorate to exercise greater control over
the laws which directly affect them. [10]
As the Court pointed out, [o]nce the referendum power isII
reserved, particularly as done in our current constitution,
this power can be exercised wherever the people through their
legislative bodies decide that it should be used. II [11]
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Article 6, section 5, Florida Constitution, controls the manner
in which the power of referendum may be granted. That section,
quoted above, provides that referenda shall be held "as provided
by lllw.~ Under the Constitution, the phrase "as provided by
law" means as passed "by an act of the legislature."[12] Since
the Constitution expressly provides that the power of referenaum
can be granted only by the legislature, it is beyond the power of
the electorate to say what shall or shall not be done by referen
dum. [13]
There may be land use and other legislative issues that may
be the subject of It referendum vote of citizens pursuant to the
reserved referendum provisions of the Florida Constitution. [14}
In Florida Land Company v. City of Winter springs, a change in
zoning for a specific parcel of land pursuant to section 163.215,
Florida Statutes (1981), was the subject of a referendum vote of
the citi2ens.
However, this reservation of the referendum power would not
extend to those areas of legislation preempted to the state,
such as section 163.3189, Florida Statutes. A local referendum
to approve or disapprove legislation presupposes that local
legislation is appropriate on a particular topic. Preemption
by the state would forestall any such local legislation. As
the Court in the Florida Land case determined, the referendum
process was properly used to approve or disapprove a proposed
zoning ordinance in those cases where a city'S charter
specifically provided for direct citizen control over ordi
nances. [15] In the case of state preemption, there can be no
viable local ordinance.
Therefore, it is my opinion that the provisions of section
163.3189, Florida Statutes, are not subject to local referendum
action under the reservation of the referendum power enunciated
in the Florida Land Company v. City of Winter Springs case.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/tgh
[1] Alsop v. Pierce, 19 So. 2d 799, 805 (Fla. 1944). And see,
Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952);
Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976).
(2) Pedersen v. Green, 105 So. 2d 1, 4 (Fla. 1958). See also,
State v. Egan, 287 So. 2d 1, 4 (Fla. 1973); Gasson v. Gay, 49 So.
2d 525, 525 (Fla. 1950).
[3] Webster's New Collegiate Dictionary 1106 (1975).
[4] American Heritage Dictionary 650 (1983).
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[51 Section 2{b), Article VIII, Florida Constitution, provides
in part that:
Municipalities shall have governmental, corporate and
proprietary powers to enable tham to conduct municipal
government, perform municipal functions and render
municipal services, and may exercise any power for
municipal purposes except as otherwise provided by law.
[6] Section ~66.021(3), Fla. Stat., prescribes limitations on
the subjects which municipal legislation may address and provides
that:
(3) The Legislature recognizes that pursuant to the
grant of power set forth in s. 2(b), Art. VIII of the
State Constitution, the legislative body of each
municipality has the power to enact legislation
concerning any subject matter upon which the state
Legislature may act, except:
(a) The subjects of annexation, merger, and exercise
of extraterritorial power, which require general or
special law pursuant to s. 2(c), Art. VIII of the State
Constitution;
(b) Any subject expressly prohibited by the
constitution;
(c) Any subject expressly preampted to state or county
government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a
county charter adopted under the authority of ss. l(g),
3, and 6(8), Art. VIII of the State Constitution. (e.s.)
[7] See, e.g., City of Miami Beach v. Rocio Corporation, 404 So.
2d 1066 (Fla. 3d DCA 1981), pet. for rev. den. 408 So. 2d 1092
(PIa. 1981); Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972).
[8] City of Miami Beach v. Rocio Corporation, id.
[9] Florida Land Company v. City of Winter Springs, 427 So. 2d
170 (Fla. 1983).
[10] Id. at 172.
[11] re , at 172-173.
[12l See, Broward County v. Plantation Imports, Inc., 419 So. 2d
1145, 1148 (Fla. 4th DCA 1982) .
[13] Holzendor£ v. 8ell, 60S So. 2d 645, 648 (Fla. 1st DCA
1992) .
[14] But see, "Power to the people? A critique of the Florida
Supreme Court's interpretation of the referendum power";
Patricia Leary, 15 Fla. State L. Rev. 676 (1987), in which the
author argues that "any attempt by the Legislature to allow the
people to make law by referendum is unconstitutional, despite the
language of the Florida Supreme Court in Florida Land Co. v. City
of Winter Springs to the contrary[.]n
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[15] Cf., Holzendorf v. Bell, 606 So. 2d 645 (Fla. 1st DCA
1992) .
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