Could Miami Beach use a charter referendum to set hospital-district rezoning rules?

Plain-English summary

In an October 2007 informal letter, Florida's Attorney General's office declined to decide whether Miami Beach could put a hospital-district land-development policy in its charter by referendum. The city proposed a future floor-area-ratio rule for rezoning hospital districts, but the office did not know whether the amendment effectively applied to five or fewer parcels or how it related to a particular hospital and the city's comprehensive plan. It said those missing facts prevented a definitive answer.

The office quoted section 163.3167(12)'s ban on an initiative or referendum "in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land." It warned that a charter vote effectively rezoning fewer than six parcels might accomplish indirectly what the statute barred directly. Because it could not resolve the parcel and planning facts, it suggested a declaratory judgment with a factual record.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG say Miami Beach's hospital-district charter amendment was legal?
A: No. The office expressly lacked the parcel and comprehensive-plan facts needed to determine whether the proposal conflicted with section 163.3167(12).

Q: What was the five-parcel issue?
A: The quoted statute barred a referendum process for certain development orders and plan or map amendments affecting five or fewer parcels. The AG was concerned a charter referendum could effectively rezone that small number of parcels despite the ban.

Q: Did a charter referendum automatically avoid the state restriction?
A: The letter warned against doing indirectly through a charter amendment what the statute prohibited directly. It did not decide whether this particular amendment had that effect.

Q: Why did the office suggest a court proceeding?
A: It said a circuit court hearing a declaratory-judgment action could consider the specific facts that the AG lacked, including which parcels and planning provisions the amendment affected.

Background and statutory framework

Miami Beach's city attorney asked about a ballot question governing future rezoning of a "Hospital District" and generally limiting floor-area ratio to that of abutting land, with a larger-parcel exception. Section 166.031 required referendum approval for charter amendments. Section 163.3167(12) limited referendums on certain parcel-specific land-use decisions. The office identified a possible conflict but stopped short of applying the statute without knowing the amendment's actual parcel and planning effects.

Citations and references

The letter cites sections 166.031 and 163.3167(12), Florida Statutes. Its footnotes discuss Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144 (Fla. 2nd DCA 2006), on referendums affecting more than five parcels, and Solomon v. City of Miami Beach, 187 So. 2d 373 (Fla. 3d DCA 1966), on indirect action.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/charter-amendment-land-development
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8282

Original opinion text

Mr. Jose Smith

City of Miami Beach Attorney

1700 Convention Center Drive

Fourth Floor

Miami Beach, Florida 33139

Dear Mr. Smith:

On behalf of the City Commission for the City of Miami Beach, you have asked whether the city’s charter may be amended by referendum approval to impose a general policy regarding land development regulations for a hospital district, but with no requirement for future referenda, without violating section 163.3167(12), Florida Statutes.

The City of Miami Beach has proposed the following ballot question:

Shall the Charter be amended to provide that when a "Hospital District" is rezoned, such property shall (in accordance with procedures established by ordinance) be rezoned to a district or combination of districts with a floor area ratio no greater than the abutting land (sharing lot line), except that "Hospital District" property exceeding 15 acres may exceed this limitation if adequate buffers are provided to protect abutting uses?

Section 166.031, Florida Statutes, provides for the amendment of municipal charters and requires, among other things, approval by referendum.[1] Your inquiry arises in light of the provisions of section 163.3167(12), Florida Statutes, which provides:

"An initiative or referendum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited."

The plain language of the statute precludes the use of an initiative or referendum process to approve any development order or any local comprehensive plan amendment or map amendment affecting five or fewer parcels of land. For development orders or comprehensive plan amendments or map amendments affecting six or more parcels, however, the courts have held that an initiative or referendum process may be used.[2]

This office has not been provided with information as to whether the proposed charter amendment effectively applies to five or fewer parcels of land. This would be a factual determination that would clearly affect the application of section 163.3167(12), Florida Statutes. Nor is it evident from your letter whether the adoption of this amendment is directed toward the expansion of a specific hospital which occupies a single parcel of land, or the effect it has on the city’s comprehensive plan. In the absence of such information, this office cannot definitively comment on this matter. In an effort to be of assistance, however, the following general comments are offered.

It is a well settled rule that municipalities may not do indirectly what cannot be done directly.[3] The passage of a charter amendment by referendum approval which effectively rezones fewer than six parcels in a hospital district would accomplish the same result as requiring referendum approval a development order or comprehensive plan amendment for such parcels. Thus, this office is concerned that by adopting a charter amendment approved by referendum, the city is in effect accomplishing indirectly that which it is prohibited from doing directly by section 163.3167(12), Florida Statutes.

As noted, however, this office has insufficient information to resolve this issue. In light of the issues raised only by the city and those raised by other interested parties, it would appear to be appropriate in this instance to seek a declaratory judgment from the circuit court. The court would have the benefit of having specific facts in order to determine whether the action proposed by the city complies with the provisions in section 163.3167, Florida Statues.

I trust that these informal comments will be of assistance to you in the resolution of this matter.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/t

________________

[1] See ss. 166.031(1) and (2), Fla. Stat.

[2] See Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144, 1150 (Fla. 2nd DCA 2006). See also Advisory Opinion to Att’y Gen. Re: Referenda Required for Adoption & Amendment of Local Gov’t Comprehensive Land Use Plans, 938 So. 2d 501, 504 (Fla. 2006) (statutory scheme allows local governments to utilize a referendum process in regard to a plan amendment if the plan amendment affects more than five parcels of land).

[3] See Solomon v. City of Miami Beach, 187 So. 2d 373 (Fla. 3d DCA 1966), cert. denied, 196 So. 2d 927 (Fla. 1967).