Legal Report, April 2018
General Counsel, Jennifer G. Ashton
Davis & Ashton, P.A.
1. Mullen v. Bal Harbour Vill., 2018 Fla. App. LEXIS 3813 (Fla. 3rd DCA 2018). Referendum, development orders.
Plaintiffs submitted petitions seeking to amend the Charter of Bal Harbour Village (“Village”) pursuant to §166.031, Florida Statutes, by collecting and submitting signatures to the Village Clerk in support of the petitions. Petition 82, the main subject of this case, sought to add a new section to the Charter to require a vote of at least 60% of Village electors to approve certain, defined commercial development within the Village. Specifically, Petition 82 stated that “[a]ny proposed development plan for an existing commercial property that increases the existing commercial space by more than thirty (30) percent of the current amount of retail space, must be submitted for approval to the electors in Bal Harbour Village and approved by a vote of at least sixty (60) percent of the Village electors voting on such referendum.”
The Village Clerk received Petition 82, including support signatures, and forwarded them to the Miami-Dade County Supervisor of Elections ("Supervisor") for signature verification. In a subsequent letter, the Clerk provided the Supervisor with erroneous information about the Village’s Charter amendment process and therefore, the Supervisor deemed the Petition insufficient without verifying the signatures. After learning that their petitions were deemed insufficient, Plaintiffs filed a complaint against the Village and the Village Clerk for declaratory and mandamus relief seeking to compel the Village to resend the signatures to the Supervisor for verification so that the ballot question could be placed before the voters.
The Village argued that Petition 82 was an illegal charter amendment proposal and therefore, it could not be compelled to forward signatures to the Supervisor for verification. It argued that Petition 82 conflicted with Section 163.3167(8)(a), Florida Statutes, which provides that an initiative or referendum process in regard to any development order is prohibited. Plaintiffs argued, on the other hand, that after receiving a sufficient number of signatures to amend a municipal charter under Section 166.031, Florida Statutes, a municipality has a ministerial duty to forward the collected signatures to the Supervisor for verification unless a municipal charter or code provision affirmatively requires otherwise. There was no such provision in this case. Plaintiffs also argued that, if the Village questioned the validity or legality of Petition 82, then the Village could challenge the legal infirmity after forwarding the signatures to the Supervisor for verification.
The trial court held and the Third District Court of Appeal affirmed that Petition 82 could not be sent to voters because it violated Section 163.3167(8)(a), which expressly prohibits a municipality from engaging in an initiative or referendum process regarding a development order. Therefore, the Court denied Plaintiffs’ request for relief because Petition 82 would constitute an illegal referendum.
The Third District Court of Appeal also discussed what steps the Village should have taken when faced with the situation of an illegal ballot question. The Court reviewed whether the Village was required to forward signatures to the Supervisor for verification and then challenge the illegal ballot question, or whether the Village was simply able to withhold signatures and not forward to the Supervisor without filing a legal challenge. The Court decided not to offer recommendations on this issue. Instead, the Court held that “[w]e leave it to the Legislature and, where authorized, municipal governing bodies to codify any preferred mechanism for challenging a purported invalidity of a referendum question.”