10-25-23 Handout - Doc#_51989581_v_1_Memo re 9-27-23 CRC InquiriesCITY OF ATLANTIC BEACH
CITY ATTORNEY MEMO
To: City of Atlantic Beach — Charter Review Committee (CRC)
From: Jason Gabriel, City Attorney
Date: October 24, 2023
Regarding: CRC Inquiries from September 27, 2023 Meeting
I. Questions Asked.
The City of Atlantic Beach (COAB) Charter Review Committee (CRC) met on September 27,
2023 and posed the following:
A. Referendum Vote for Park Property : Article II (the Commission), Section 9
(Powers), Subsection (14) currently requires the sale, lease or gifting of any public parks to be
approved by unanimous vote of entire city commission. Could this provision be amended to require
a "vote by referendum"?
B. Referendum Subject Matters: Can the entire Charter be amended via one ballot or does
each section have to be amended separately?
C. Legislation Banning Referendums on LDRs: What does the 2023 State legislation (Laws
of Florida 2023-305; SB 718) ban with respect to Land Development Regulations (LDRs)? Does
that include referendums on the sale of property?
D. City Manager Absence: Article III (the City Manager), Section 24 (Absence) defaults
the duties of the city manager during any temporary absence or disability to the deputy city
manager. Could we clarify further that this would also apply to a city manager who departs
permanently?
II. Answers.
A. Referendum Vote for Park Property: Yes. This provision requiring the sale of
public park property by unanimous consent of the entire city commission could be amended to
require a "vote by referendum." While the policy behind such a change can be debated, there is no
prohibition under Florida law against such a measure. There are examples across the state where
referendums have been held regarding the sale of public property. See Brooks v. Watchtower Bible
and Tract Soc. of Florida, Inc., 706 So. 2d 85 (Fla. 4th DCA 1998).
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B. Referendum Subiect Matters: The entire Charter can be amended via one ballot; it can
also be amended separately. To the extent the concern is about crafting an acceptable ballot
title/summary that will survive a challenge under Section 101.161, Florida Statutes, the
following case provides a precedent: Maxwell v. Lee County, 714 So. 2d 1043 (2nd DCA
1998). Maxwell involved the adoption of the Lee County Charter (from scratch) and held that a
ballot summary for county's home rule charter election provided voters with sufficient information
to make informed decision on how to cast their ballots, notwithstanding challengers' complaints
that summary was vague and ambiguous and failed to distinguish powers available to noncharter
counties. Municipal Charters may be similarly amended pursuant to Florida law. See Article VIII,
Section 2(a), Florida Constitution. Lastly, see COAB Ordinance No. 33-15-19 which was
approved by the COAB City Commission on May 11, 2015 authorizing the last COAB Charter
Amendment referendum to a variety of Articles (and associated subject matters) within the
Charter, under one ballot question.
Having said that, as a policy matter, if the CRC is concerned with wrapping the entire set of
amendments to the Charter under one ballot question, that makes such a measure subject to a
wholesale yes or no vote, it could consider breaking it up into 4 or 5 (or several) subject matter
headings. By having several sections properly categorized the community could vote some items
up and some items down, rather than the entire measure. This of course depends on the vitality or
controversy of the stated measure, and is a policy/strategy decision for this CRC and the COAB
City Commission to make.
C. Legislation Banning Referendums on LDRs: The Legislature recently changed Florida
law — Laws of Florida 2023-305; SB 718 — to ban referendums with respect to Land Development
Regulations (LDRs). Section 163.3164(26), Florida Statutes defines a Land Development
Regulation as the following:
"Land development regulations" means ordinances enacted by governing bodies
for the regulation of any aspect of development and includes any local government
zoning, rezoning, subdivision, building construction, or sign regulations or any
other regulations controlling the development of land, except that this definition
does not apply in s. 163.3213.
Some of the argument in favor of this recent State legislation include that localities "should not
govern by referendum" and instead operate under America's true form of government, a
democratic republic in which elected leaders make decisions on behalf of the voters who put them
into office. Nevertheless, this ban would prohibit referendums for any zoning, rezoning or any
regulations controlling the development of land. Such a ban, however, does not include the simple
sale of public property, if the COAB were inclined to subject such a matter to referendum.
D. City Manager Absence: Article III (the City Manager), Section 24 (Absence) defaults
the duties of the city manager during any temporary absence or disability to the deputy city
manager.
This particular provision must be read in concert with Article II (the Commission, Section 10
(Appointment of city manager) which sets forth, in part, the following:
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...In the event the City Manager is removed or incapacitated and unable to appoint
a substitute as required in Sec. [Section] 24 of this Charter, the city commission
shall appoint someone to perform the duties of the city manager.
Thus, in the event of a permanent departure of the city manager, it is ultimately within the City
Commission's full discretion to make an appointment of someone qualified to perform the duties
of the city manager, temporarily or permanently. Should the commission decide not take any
action, then as a matter of succession (and operation of law), the deputy city manager becomes the
city manager during the pendency of such vacancy until a further express decision is made by the
city commission.
If the CRC believes this current language within the Charter should be further clarified, it could
include language such as the following:
Sec. 24. - Absence of the city manager.
The duties of the city manager during: (i) any temporary absence or disability, or
(ii) any permanent absence (including but not limited to their removal, incapacity,
termination, resignation or death) where the city commission has not decided
otherwise, shall be carried out by a deputy city manager, or in the absence of the
latter, by another administrative officer of the city designated first by the city
manager or second, by a majority of the city commission.
III. Conclusion.
I trust that the answers to these questions posed provide the guidance you seek. Please do not
hesitate to contact me with any other questions or concerns.
Thank you.
JRG
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