Can a Florida city ask voters to approve height and density increases for a redevelopment district that doesn't exist yet?

Plain-English summary

The City of Treasure Island wanted to put a set of referendum questions to its voters that would raise the allowed height and density of buildings inside a planned downtown redevelopment district. The catch: the district itself existed only as a concept. The ordinance that would create it had not been adopted and, in fact, depended on the referendum passing first. The city's attorney, Maura Kiefer, asked the Attorney General whether the city could go ahead.

Assistant Attorney General Lagran Saunders responded with informal comments, stressing that the office has no authority to judge the validity of a proposed local initiative. The substance of the response focused on ballot clarity. Florida law (section 101.161(1)) requires a ballot summary and title that tell voters, in clear and unambiguous language, the chief purpose of the measure so they are not misled. Reviewing the city's proposed Ordinance 12-07, the AG noticed it contained five separate height-and-density questions, and that section 3 of the ordinance made passage of all five a threshold requirement, yet none of the individual ballot questions told voters that every question had to pass before any of the changes took effect. The AG also flagged the office's prior position that when two or more propositions appear on a ballot, each must stand on its own so a voter can vote for or against each separately, something the all-or-nothing structure undercut.

Currency note

This opinion was issued in 2012. 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.

At the time, the analysis rested on section 101.161(1), Florida Statutes, and a line of Florida cases about misleading ballot language. Anyone weighing a similar ballot question today should check the current text of section 101.161 and the controlling case law, both of which can shift.

Common questions

Q: Did the AG say the city could not hold the referendum?
A: No. The opinion was careful to say the office has no authority to pass judgment on the validity of a proposed local initiative. It offered informal comments to be helpful, not a ruling that the city could or could not proceed.

Q: What was the AG's main concern with the ballot?
A: That voters might not get fair notice. Section 101.161(1) requires the ballot summary and title to state the chief purpose of the measure clearly. The proposed ordinance made all five height-and-density questions pass or fail as a package, but the ballot questions themselves did not disclose that interdependence.

Q: Why does it matter that several questions were bundled together?
A: The AG noted its longstanding position that each proposition on a ballot must be complete in itself and stated separately, so a voter can vote yes or no on each. If a voter favored a height increase in one area but not another, the all-or-nothing structure would not let them vote on each independently.

Q: How clear does a ballot summary have to be under Florida law?
A: Under the standard the opinion drew from Florida Supreme Court decisions, the ballot must advise voters of the substance of a measure so they are not misled, though it need not spell out every detail or ramification. The summary in 2012 was capped at 75 words, with a ballot title of no more than 15 words.

Background and statutory framework

Section 101.161(1), Florida Statutes, governs how public measures appear on the ballot. It requires a ballot summary, an explanatory statement of the measure's chief purpose, plus a short ballot title. The aim is fair notice: the voter should understand the decision being made.

Florida courts have built a body of law around this requirement. Askew v. Firestone, 421 So. 2d 151 (Fla. 1982), established that the ballot must give the voter fair notice of the decision. Roberts v. Doyle, 43 So. 3d 654 (Fla. 2010), explained that ballot language must advise voters of the substance of a measure without misleading them, even if it cannot cover every detail. The opinion contrasted two appellate cases: Miami-Dade County v. Village of Pinecrest, 994 So. 2d 456 (Fla. 3d DCA 2008), where a ballot summary was found misleading, and Citizens for Term Limits & Accountability, Inc. v. Lyons, 995 So. 2d 1051 (Fla. 1st DCA 2008), where summary language was upheld as unambiguous, citing Gross v. Firestone, 422 So. 2d 303 (Fla. 1982). The principle that separate propositions must be separately votable drew on the office's earlier Opinion 98-03.

Citations and references

Statutes and constitution:

• § 101.161(1), Fla. Stat. (ballot summary and title requirements)
• § 100.371(5), Fla. Stat. (financial impact statement for initiative amendments)
• Art. IV, § 10, Fla. Const., and § 16.061, Fla. Stat. (AG's role on initiative petitions to amend the constitution)

Cases and prior opinions:

• Askew v. Firestone, 421 So. 2d 151 (Fla. 1982), ballot must give fair notice
• Roberts v. Doyle, 43 So. 3d 654 (Fla. 2010), ballot must advise of substance without misleading
• Miami-Dade County v. Village of Pinecrest, 994 So. 2d 456 (Fla. 3d DCA 2008), misleading ballot summary
• Citizens for Term Limits & Accountability, Inc. v. Lyons, 995 So. 2d 1051 (Fla. 1st DCA 2008), summary upheld as unambiguous
• Gross v. Firestone, 422 So. 2d 303 (Fla. 1982)
• Op. Att'y Gen. Fla. 98-03 (1998), separate propositions must be separately votable

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/referenda-municipalities-redevelopment-districts
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8129

Original opinion text

Ms. Maura J. Kiefer

Attorney for the City of Treasure Island

The Alexander Building

535 Central Avenue

St. Petersburg, Florida 33701-3703

Dear Ms. Kiefer:

On behalf of the City of Treasure Island, you have asked whether the city is allowed to place a referendum question before the electorate which seeks an increase in density and height for a future downtown redevelopment district, where the ordinance which would create said district is conceptual only and would not be passed by the city commission in time for the submission of the referendum question.

As reflected by your question and the facts in your letter, it would appear that the city wishes to hold a referendum which, upon approval, would increase height and density restrictions in designated areas of a planned downtown redevelopment district which has not been approved and which would necessitate passage of the referendum in order to be implemented.

You state that the charter for the City of Treasure Island (city) requires referendum approval for increases to the height and density restrictions for land development.[1] There appears to be uncertainty, however, as to whether the electorate would be adequately informed of the effect of the referendum, in light of the speculative nature of the redevelopment district. Amending the city charter to allow increased height and density within the redevelopment district is critical to the viability of the redevelopment district plans.

Initially, I must note that this office has no authority to pass judgment upon the validity of a proposed local initiative.[2] In an effort to be of assistance, however, the following informal comments are offered.

Section 101.161(1), Florida Statutes, provides:

"Whenever a constitutional amendment or other public measure is submitted to the vote of the people, a ballot summary of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word 'yes' and also by the word 'no,' and shall be styled in such a manner that a 'yes' vote will indicate approval of the proposal and a 'no' vote will indicate rejection. The ballot summary of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the . . . proposal, or enabling resolution or ordinance. The ballot summary of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. In addition, for every amendment proposed by initiative, the ballot shall include, following the ballot summary, a separate financial impact statement concerning the measure prepared by the Financial Impact Estimating Conference in accordance with s. 100.371(5). The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of. This subsection does not apply to constitutional amendments or revisions proposed by joint resolution."

Simply put, the ballot must give the voter fair notice of the decision he or she must make.[3] It is well settled that section 101.161, Florida Statutes, requires a public measure to be in clear and unambiguous language and that the ballot title and summary explain the chief purpose of the measure. Applying the standard set forth in court decisions addressing the validity of initiative petitions to amend the Florida Constitution, the Supreme Court of Florida has stated that the language on the ballot must advise the voter of the substance of the amendment, but need not explain every detail or ramification of the proposed amendment; rather it must be determined whether the voter will be misled by the language on the ballot.[4]

In one instance, a court determined that a ballot title and summary of a proposed amendment to a county home rule charter regarding the provision of fire and rescue services falsely promised the creation of a uniform countywide fire and rescue service when such service already existed and failed to inform voters that the amendment would reduce rather than expand rights of county’s citizens by curtailing municipal powers.[5] In another case, the court found that a proposed amendment to a county charter reducing the salaries of county commissioners was not misleading, despite the contention that the ballot language did not inform the voters that the commissioners’ salaries would be reduced by a lesser amount even if the proposal failed.[6] The court found that the ballot language in “simply presenting the absolute amount proposed as the commissioners’ salary” was unambiguous and clearly stated the amendment’s chief purpose.[7]

Thus, a ballot title and summary must advise the electorate of the true meaning and ramifications of an amendment so that the voter will not be misled as to its purpose and may cast an informed ballot.

You have provided a copy of proposed Ordinance 12-07 which sets forth five questions that would appear on the referendum ballot, each apparently relating to density or height increases within specified areas of the redevelopment district. I would note that while section 3 of proposed Ordinance 12-07 reflects that passage of all the questions is a threshold requirement for the passage of the ordinance, nothing in the ballot title and summary of each question advises the voter that all of the questions must receive an affirmative vote before the land development regulations will be amended.

While this office has recognized that two or more propositions may be placed on a referendum ballot, each must be complete within itself and stated separately and distinctly in such form that a voter has the opportunity to vote either for or against each separate proposal.[8] It is questionable that an individual who favors an increase in height restrictions in one area would necessarily favor them in another, yet a voter aware of the need for approval of all height and density amendments before each may become effective would not be able to independently vote on each referendum question.

I trust that these informal comments will be of assistance in your resolving the issues you have raised.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/t

[1] See Sec. 68-126. - Changes requiring approval by electors.

"Any changes in the land development regulations of the city that would allow an increase in the number of units per acre (density) or an increase in allowable height of buildings must be approved by a majority of the qualified electors of the city." City of Treasure Island Code of Ordinances (Referendum of 11-5-02, § 1).

[2] Compare Art. IV, s. 10, Fla. Const., and s. 16.061, Fla. Stat., directing the Attorney General to request the opinion of the justices of the Supreme Court as to the validity of an initiative petition to amend the state constitution.

[3] Askew v. Firestone, 421 So. 2d 151, 155 (Fla. 1982).

[4] Roberts v. Doyle, 43 So. 3d 654, 658-659 (Fla. 2010).

[5] Miami-Dade County v. Village of Pinecrest, 994 So. 2d 456 (Fla. 3d DCA 2008), rev. denied, 5 So. 3d 669 (Fla. 2009)

[6] Citizens for Term Limits & Accountability, Inc. v. Lyons, 995 So. 2d 1051 (Fla. 1st DCA 2008), rev. denied, 5 So. 3d 668 (Fla. 2009).

[7] Id. at 1058, citing Gross v. Firestone, 422 So. 2d 303, 305 (Fla. 1982).

[8] See Op. Att’y Gen. Fla. 98-03 (1998).