City of Miami Springs Enjoined From Conducting Election on Proposed Charter Amendment Requiring Voter Approval of Land Use Development Orders

A citizens' initiative charter amendment requiring a referendum to approve development within the municipality was struck down as unconstitutional. The ruling could affect many current and proposed municipal charter provisions throughout the State of Florida.

Four citizens of Miami Springs obtained a final judgment declaring a citizens' initiative charter amendment unconstitutional because it required a referendum to develop land within the city. The lawsuit was filed in Miami-Dade County Circuit Court, Case No. 06-00399 CA 21. Attorneys Daniel A. Weiss and Jennifer J. Ator of Tannebaum Weiss, LLP argued for the citizens opposing the amendment that the proposed charter amendment was unconstitutional. Senior Judge Herbert Stettin agreed and enjoined the election, which was set for January 31, 2006.

The court held that it was unconstitutional for citizens to vote on rezoning, variances, or the approval of development within the State of Florida. In arriving at this conclusion, the trial court cited three Florida statutes. The first specifically prohibits an initiative or referendum process in regard to any development order that affects five or fewer parcels of land. Then, two statutory definitions were cited as authority to explain the broad scope of the proposed charter amendment. A development order is defined as an order on 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. A parcel of land is a development unit, which may consist of many plots of land usually thought of as individual parcels.

The court further held that the municipality does not have the right to try to preempt the law by changing their own charter to directly conflict with state law.

The ruling has already generated significant interest throughout Florida since being issued by the Miami-Dade County Circuit Court because its principles apply statewide. If adopted by other circuit courts and appeals courts, any local or county government in Florida would be prohibited from taking the power to grant development orders from local elected and appointed boards and giving the ultimate right of approval for such development to the voters.

For more information about Daniel A. Weiss and Jennifer J. Ator of Tannebaum Weiss, LLP visit www.tannebaumweiss.com or for a copy of the judge's order, call 1-866-374-7850.

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