Sunday, April 18, 2010

Direct Democracy Replacing the Planning Commission?

Direct democracy takes control of land use decisions? That may be the case if an upcoming ballot measure in Florida passes: November the stakes will get a lot higher for the Sunshine State, with a ballot proposal known as Amendment 4. The measure, in 54 simple words, would dramatically change the state's politics by giving more power to voters and, with its focus on direct democracy, would make Florida feel a lot more like California.

The proposal would put many decisions about land use directly in the hands of the voters. "Before a local government may adopt a new comprehensive land use plan, or amend a comprehensive land use plan," it says, "the proposed plan or amendment shall be subject to vote of the electors of the local government by referendum."

The door would open to thousands of local votes on a host of issues - from parking lots to nature preserves. That means a state where the politics are already charged could get a lot more intense and be headed toward some bigger changes.

Okay, it would be easy to start this post with a snarky comment or joke about the Sunshine State's (in)ability to administer votes and elections (and, with a first name like "Chad", trust me, I've heard them all).

But that would be too easy.

Instead, I'll play it straight on this one because its a very tricky issue.

First, if passed, Amendment 4 could be a real challenge to administer in terms of timing and cost. How many jurisdictions could effectively organize these votes in a timely way for such often narrow issues like comp plan amendments?

Second, even if they could, would that be a good thing? After all, land use issues are notoriously emotion-driven--especially when compared to other development regulations (think of it this way: when's the last time you heard about protests over a city's building or traffic engineering code?).

Now, I'm a big proponent of local decision-making as opposed to attempts to uniformly apply standards on a large scale that misses the many nuances (such as topography) and other local conditions facing land use in specific areas. Yet, I've also been to enough public hearings and meetings to realize that Amendment 4 could be used as a tool to inject even more politics into the process.

In many ways, it could be a NIMBYs dream come true.

So, I'll vacillate on this one a bit and suggest that the concept may be solid but the practical application and administration of the idea is fraught with potential peril. A more prudent course might be to try the approach in a limited number of small counties as a test case for how Amendment 4 would really work in real life.  If that doesn't happen, in just a few years, Floridians may recount Amendment 4 as a good theory but a inefficient practice.

--Chad Emerson, Faulkner U.

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California's Strauss v. Horton and Direct Democracy:

While most commentators on Strauss v. Horton were outright negative I offer a more analytic approach in an article on "Constitutional Nominalism" in the California Supreme Court's opinion that just appeared in The Journal Jurisprudence – a small but vital Law Journal. The article can be read online under:

Best regards

Thomas Kupka

Posted by: Thomas Kupka | May 29, 2010 5:27:13 AM