Res 77-04 RESOLUTION NO. 77-04
A RESOLUTION OF THE CITY OF DELRAY BEACH, FLORIDA,
AUTHORIZING THE FILING OF A COMPLAINT FOR
DECLARATORY JUDGMENT AND INJUNCTWE RELIEF
SEEKING THE INVALIDATION AND REMOVAL FROM THE
BALLOT OF THE REFERENDUM QUESTION PROPOSED
PURSUANT TO PALM BEACH COUNTY COMMISSION
ORDINANCE 2004-021 ATTEMPTING TO AMEND THE PALM
BEACH COUNTY CHARTER RELATING TO THE MATTER OF
ANNEXATION, FINDING THAT SIGNIFICANT LEGAL RIGHTS
WILL BE COMPROMISED IF COURT PROCEEDINGS DO NOT
TAKE PLACE EXPEDITIOUSLY, AND THEREFORE,
ELIMINATING ANY REQUIREMENT TO COMPLY WITH THE
PROVISIONS OF CHAPTER 164, FLORIDA STATUTES,
RELATING TO INTERGOVERNMENTAL CONFLICT
RESOLUTION PROCEDURES; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, Chapter 171, Florida Statutes, sets forth uniform standards and procedures
for adjusting the boundaries of municipalities through annexation or contraction of corporate
limits within the State of Florida; and
WHEREAS, such criteria and regulations have been established so as to:
1. Ensure sound urban development and accommodation to growth;
2. Establish uniform legislative standards through the State for the adjustment of
municipal boundaries;
3. Ensure the efficient provision of urban services to areas that become urban in
character, and
4. Ensure that areas are not annexed unless municipal services can be provided to
those areas.
WHEREAS, the methods and procedures for annexations set forth in Chapter 171,
Florida Statutes, have a lengthy legislative history and body of case law to guide municipalities and
property owners in moving forward through the annexation process; and
WHEREAS, Section 171.044, Florida Statutes, "Voluntary annexation", provides a
streamlined process for the annexation of property where upon the consent of one hundred
percent (100%) of the owners of real properg-, of an unincorporated area of a county which is
contiguous to a municipality and reasonably compact may be annexed to the municipality with the
consent of the mumcipality; and
WHEREAS, Section 171.044(4), Florida Statutes, excepts the provisions of that section in
charter counties wherein such charter provides for an exclusive method of municipal annexation;
and
WHEREAS, Palm Beach County is a charter county, but does not currently have a charter
provision dealing with annexation; and
WHEREAS, Palm Beach County Commission is attempting to amend the Palm Beach
County Charter to authorize the Palm Beach County Commission to pass an ordinance providing
for the exclusive method for "voluntary annexation"; and
WHEREAS, the Palm Beach County Commission passed Ordinance 2004-021 calling for
a referendum to amend the Palm Beach County Charter.
WHEREAS, the proposed charter amendment is defective and misleading for a variety of
reasons, including, but not limited to, the following:
1. Voluntary annexation is not defined in the question or charter amendment
presented to the voters.
2. The proposed amendment does not place into the charter the procedures and
standards for "voluntary annexation" as required by Section 171.044(4).
3. The proposed charter amendment authorizes, but does not mandate the County
Commission to pass an ordinance dealing with "voluntary annexation",
4. If an ordinance is passed by the County Commission, it can be amended at any
time by the County Commission.
5. The proposed charter amendment does not indicate that the provisions of Chapter
171.044, Florida Statutes, will not be available to property, owners, if the charter
amendment is adopted.
6. The proposed charter amendment deals with several subjects.
7. The County Commission has been disingenuous in it discussion and descriptions
of the charter amendment as current State law requires all annexations to be
voluntary by a majority of the property area and/or the majority of voters (of
people residing in the area to be annexed) voting in a referendum to be in favor of
the annexation, for an annexation to take place.
8. The proposed charter amendment does not require the consent of the municipality
to effect an annexation into the municipality; and
WHEREAS, if the referendum is passed by a majority of the voters of Palm Beach
County, property, owners and municipalities will be uncertain as to the process and validity of
annexation action; and
WHEREAS, the City of Delray Beach, its citizens, and neighbors have a strong interest in
having clear and concise procedures and criteria for the annexation of properties into municipal
boundaries; and
WHEREAS, the proposed charter amendment does not provide clear guidelines, could
be the subject of ongoing change and confusion, and subjects the annexation process to potential
abuse; and
WHEREAS, it is in the best interest of the City of Delray Beach and its citizens that the
infirmities of the proposed charter amendment are overturned prior to their potential
implementation.
NOW THEREFORE, THE CITY COMMISSION OF THE CITY OF DELRAY
BEACH FINDS AND RESOLVES AS FOLLOWS:
Section 1. The foregoing recitals are hereby affirmed and ratified as being true and correct.
Section 2. That the proposed charter amendment is confusing and its implications are
unable to be understood by the average voter because the Palm Beach County Commission has
refused to enact appropriate definitions and standards to clarify what the proposed ordinance
relating to annexations would actually state.
Section 3. That because of the impending referendum on November 2, 2004, the City of
Delray Beach does not have the time or opportunity to participate in the intergovernmental
conflict resolution procedures contemplated by the provisions of Chapter 164, Florida Statutes.
Section 4. That because immediacy of action is necessary, or significant legal rights will be
compromised, no notice of public meeting of other proceedings as provided by Chapter 164,
Florida Statutes, shall be required before a court proceeding takes place.
Section 5. That the City of Delray Beach is authorized to join in a suit with the Village of
Wellington challenging the proposed charter amendment.
Section 6. This Resolution shall become effective immediately upon adoption.
PASSED AND ADOPTED this ~'' day of O~)~ ,2004.
FOR AGAINST
By:
Bob Costa% Comrmss~oner
ATI'EST:
City Clerk
APPROVED AS TO FORM AND
By:
~ ~kttomey
CITY COMMISSION
CITY OF DELRAY BEACH, FLORIDA
REGULAR MEETING - TUESDAY~ OCTOBER 5, 2004
6:00 P.M. - COMMISSION CHAMBERS
AGENDA ADDENDUM
THE AGENDA IS AMENDED BY ADDING THE FOLLOWING ITEM:
9. REGULAR AGENDA
O. PROPOSED COUNTY CHARTER AMENDMENT REGULATING
VOLUNTARY ANNEXATION: Consider adoption of the resolution authorizing the
City's participation in litigation regarding the proposed County Charter Amendment
regulating voluntary annexation.
Please be advised that if a person decides to appeal any decision made by the City Commission with
respect to any matter considered at this meeting, such person will need to ensure that a verbatim
record includes the testimony and evidence upon which the appeal is based. The City neither
provides nor prepares such record.
MelTIO
To: City Commission
From: DavidHarden ~~
Date: October 4, 2004
Re: Proposed County Charter Amendment Regulating Voluntary Annexation
Attached is a copy of Palm Beach County Ordinance 2004-021 proposing a charter
amendment to give the County the power to control voluntary municipal annexations. A
motion to delay adoption of this ordinance failed to pass by a 4 - 3 vote of the County
Commission, with Commissioners McCarty, Newell and Greene voting in the minority.
The Commission majority has said that this ordinance will not affect the coastal cities, and
they could have written a charter amendment that would not affect us, but that is not what the
County has chosen to do. This amendment is a broad grant of power, authorizing the County
Commission to adopt an implementing ordinance. That ordinance, even if it does not initially
affect us, could be changed by a future County Commission any time they wished.
The Village of Wellington, on September 28, authorized filing of a lawsuit in an effort to get
this question thrown off the November ballot. Attached is a copy of the pleadings they are
filing. Our City Attorney has discussed these issues with the attorney for the Village of
Wellington, and can provide further background information.
Recommendation: In view of the serious implications this ordinance has for municipal
home rule, and our ability to logically expand our boundaries when we determine it is in our
best interests to do so, I recommend that you adopt the attached resolution authorizing us to
become co-plaintiffs in this litigation.
I also recommend that we work closely with the League of Cities to develop and execute a
political campaign to defeat this charter amendment at the ballot box in case this lawsuit is
unsuccessful.
ct°
RESOLUTION NO. 77-04
A RESOLUTION OF THE CITY OF DELRAY BEACH, FLORIDA,
AUTHORIZING THE FILING OF A COMPLAINT FOR
DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF SEEKING
THE INVALIDATION AND REMOVAL FROM THE BALLOT OF THE
REFERENDUM QUESTION PROPOSED PURSUANT TO PALM
BEACH COUNTY COMMISSION ORDINANCE 2004-021
ATTEMPTING TO AMEND THE PALM BEACH COUNTY CHARTER
RELATING TO THE MATTER OF ANNEXATION, FINDING THAT
SIGNIFICANT LEGAL RIGHTS WILL BE COMPROMISED IF
COURT PROCEEDINGS DO NOT TAKE PLACE EXPEDITIOUSLY,
AND THEREFORE, ELIMINATING ANY REQUIREMENT TO
COMPLY WITH THE PROVISIONS OF CHAPTER 164, FLORIDA
STATUTES, RELATING TO INTERGOVERNMENTAL CONFLICT
RESOLUTION PROCEDURES; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, Chapter 171, Florida Statutes, sets forth uniform standards and
procedures for adjusting the boundaries of municipalities through annexation or contraction
of corporate limits within the State of Florida; and
WHEREAS, such criteria and regulations have been established so as to:
1. Ensure sound urban development and accommodation to growth;
2. Establish uniform legislative standards through the State for the adjustment
of municipal boundaries;
3. Ensure the efficient provision of urban services to areas that become urban
in character, and
4. Ensure that areas are not annexed unless municipal services can be
provided to those areas.
WHEREAS, the methods and procedures for annexations set forth in Chapter 171,
Florida Statutes, have a lengthy legislative history and body of case law to guide
municipalities and property owners in moving forward through the annexation process; and
WHEREAS, Section 171,044, Florida Statutes, "Voluntary annexation", provides a
streamlined process for the annexation of property where upon the consent of one hundred
percent (100%) of the owners of real property, of an unincorporated area of a county which
is contiguous to a municipality and reasonably compact may be annexed to the
municipality with the consent of the municipality; and
WHEREAS, Section 171.044(4), Florida Statutes, excepts the provisions of that
section in charter counties wherein such charter provides for an exclusive method of
municipal annexation; and
WHEREAS, Palm Beach County is a charter county, but does not currently have a
charter provision dealing with annexation; and
WHEREAS, Palm Beach County Commission is attempting to amend the Palm
Beach County Charter to authorize the Palm Beach County Commission to pass an
ordinance providing for the exclusive method for "voluntary annexation"; and
WHEREAS, the Palm Beach County Commission passed Ordinance 2004-021
calling for a referendum to amend the Palm Beach County Charter.
WHEREAS, the proposed charter amendment is defective and misleading for a
variety of reasons, including, but not limited to, the following:
1. Voluntary annexation is not defined in the question or charter amendment
presented to the voters.
2. The proposed amendment does not place into the charter the procedures
and standards for "voluntary annexation" as required by Section 171.044(4).
3. The proposed charter amendment authorizes, but does not mandate the
County Commission to pass an ordinance dealing with "voluntary
annexation",
4. If an ordinance is passed by the County Commission, it can be amended at
any time by the County Commission.
5. The proposed charter amendment does not indicate that the provisions of
Chapter 171.044, Florida Statutes, will not be available to property owners, if
the charter amendment is adopted.
6. The proposed charter amendment deals with several subjects.
7. The County Commission has been disingenuous in it discussion and
descriptions of the charter amendment as current State law requires all
annexations to be voluntary by a majority of the property area and/or the
majority of voters (of people residing in the area to be annexed) voting in a
referendum to be in favor of the annexation, for an annexation to take place.
8. The proposed charter amendment does not require the consent of the
municipality to effect an annexation into the municipality; and
WHEREAS, if the referendum is passed by a majority of the voters of Palm
Beach County, property owners and municipalities will be uncertain as to the process
and validity of annexation action; and
WHEREAS, the City of Delray Beach, its citizens, and neighbors have a strong
interest in having clear and concise procedures and criteria for the annexation of
properties into municipal boundaries; and
WHEREAS, the proposed charter amendment does not provide clear
guidelines, could be the subject of ongoing change and confusion, and subjects the
annexation process to potential abuse; and
WHEREAS, it is in the best interest of the City of Delray Beach and its citizens
that the infirmities of the proposed charter amendment are overturned prior to their
potential implementation.
NOW THEREFORE, THE CITY COMMISSION OF THE CITY OF DELRAY
BEACH FINDS AND RESOLVES AS FOLLOWS:
Section 1. The foregoing recitals are hereby affirmed and ratified as being true
and correct.
Section 2. That the proposed charter amendment is confusing and its
implications are unable to be understood by the average voter because the Palm
Beach County Commission has refused to enact appropriate definitions and standards
to clarify what the proposed ordinance relating to annexations would actually state.
Section 3. That because of the impending referendum on November 2, 2004, the
City of Delray Beach does not have the time or opportunity to participate in the
intergovernmental conflict resolution procedures contemplated by the provisions of
Chapter 164, Florida Statutes.
Section 4. That because immediacy of action is necessary, or significant legal
rights will be compromised, no notice of public meeting of other proceedings as
provided by Chapter 164, Florida Statutes, shall be required before a court
proceeding takes place.
Section 5. That the City of Delray Beach is authorized to join in a suit with the
Village of Wellington challenging the proposed charter amendment.
Section 6. This Resolution shall become effective immediately upon adoption.
PASSED AND ADOPTED this __ day of ,2004.
FOR AGAINST
By:
Jeff Perlman, Mayor
Alberta McCarthy, Vice-Mayor
Jon Levinson, Deputy Vice-Mayor
Patricia Archer, Commissioner
Bob Costin, Commissioner
ATTEST:
City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
By:
City Attorney
I ORDINANCE NO. 2004- 021
2
3
4 AN ORDINANCE OF THE BOARD OF COUNTY
5 COMMISSIONERS OF PALM BEACH COUNTY,
6 FLORIDA, PERTAINING TO THE
? ESTABLISHMENT OF AN EXCLUSIVE
s METHOD OF VOLUNTARY ANNEXATION
9 INCLUDING THE DESIGNATION OF AN
~o UNINCORPORATED PROTECTION AREA AND
~t DESIGNATION OF UNINCORPORATED RURAL
12 NEIGHBORHOODS; PROVIDING FOR
t3 AMENDMENTS TO THE CHARTER OF PALM
14 BEACH COUNTY, FLORIDA; PROVIDING FOR
t 5 CHARTER AMENDMENT LANGUAGE;
t6 ~, PROVIDING FOR REFERENDUM AND BALLOT
17 '.~ LANGUAGE; PROVIDING FOR FORM OF
tS ,', NOTICE; PROVIDING FOR SEVERABILITY;
19 : PROVIDING FOR INCLUSION IN THE
2o, CHARTER; AND PROVIDING FOR AN
2! ~ EFFECTIVE DATE.
23 ;i WHEREAS, Section l(c),' Article VIII of the Constitution of the State of Florida
24 ,: provides that by general law a county government may be established by charter; and
25 WHEREAS, the voters of Palm Beach County adopted the Charter of Palm
26 Beach County on November 6, 1984, effective January 1, 1985; and
27 ' WHEREAS, the Charter of Palm Beach County provides that the Board of
28 ~ County Commissioners may propose a charter amendment by ordinance subject to voter
29 approval; and
30 WHEREAS, sec. 171.044(4), Florida Statutes provides authority for a charter
_~ tcounty to provide for an exclusive method of voluntary annexation in its charter; and
32 WHEREAS, the purpose of this charter amendment is to authorize the County to
33 provide for the exclusive method by which voluntar/ annexation of property by a
34 municipality may occur within Palm Beach County, Florida; and
3s WHEREAS, passage of this Ordinance will allow the residents of Palm Beach
36 .~ County to vote on the proposed charter amendment at the general election held on
37 November 2, 2004.
38 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
~9 COMMISSIONERS OF PALM BEACH COUNTY, FLORIDA, that:
4o PART 1. AMENDMENT OF CHARTER
41 Subject to the approval of the electorate as required by the Constitution and Laws
42 Of Florida the Palm Beach County Charter shall be amended by adding language to Sec
I 1.1. Creation and General Powers of Home Rule Charter Government, by adding
2 language to Sec. 1.3. Scope of County ordinances; conflict with municipal ordinances,
3 and by adding Article VII, Voluntary. Annexation, Sec. 1. Voluntary Annexation by
4 Municipalities, as follows:
5 SECTION 1.1. CREATION AND GENERAL POWERS OF HOME RULE
6 .CHARTER GOVERNMENT
7 : Palm Beach County shall be a Home Rule Charter County, and, except as may be
8 ,: limited by this Home Rule Charter, shall have all powers of county self government
9 ,~ granted now or in the future by the constitution and laws of the state of Florida. As set
l0., forth in Ar~.i¢le VII of this Chart. er, Palm Beach County has the power to establish bY
Il ordinance the exclusive method for voluntary municipal annexation, to the e. xtent
12:5 authorized by law, including the designation of an unincorporated protection area and
13 ,designation of unincorporated rural neighborhoods.
14 * * *
15 SECTION 1.3. SCOPE OF COUNTY ORDINANCES~ ,CONFLICT WITH
! 6 MUNICIPAL ORDINANCES
17 (5.) In matters related to voluntary annexation.
18 ARTICLE VII. VOLUNTARY ANNEXATION
19 SECTION 1. VOLUNTARY ANNEXATION BY MUNICIPALITIES
20 Nothing in this Charter shall prevent a municipality from annexing ,an
21 unincorporated area into its municipal boundaries, except that all voluntary annexations
22 shall be in accordance with the exclusive method for voluntary municipal annexation
23 established by ordinance of the Board of County Commissioners, including the
24 designation of an unincorpo..rated protection area and designation of unincorporated rural
25 3. neighborhoods. Voluntary annexation in an unincorporated protection area requires
26 approval by an affirmative vote of at least five members of the board of county
27 commissioners. Voluntary annexation in an unincorporated rural neighborhood requires
28 ~loproval by an affirmative vote of at least five members of the board of county
29 commissioners and a majority of the registered electors residing within the boundaries of
30 the unincorporated rural neighborhood voting on the question. . All . voluntary annexations
31 shall require prior notice to the county as established by ordinance. For voluntary
2
1 annexations outside the unincorporated protection area. the ordinance regulating such
2 annexations shall be no more restrictive than general law regarding the substantive
3 requirements for such annexations. The unincorporated protection area is defined as all
4 unincorporated lands located outside of the urban service area established in the Palm
5 Beach County Comprehensive Plan..~eas eligible to be designated by ordinance as
6 , unincorporated rural neighborhoods must be located in the unincorporated protection area
7" and are limited to recorded subdivisions and antiquated subdivisions as defined in the
8 .~ Palm Beach County, Comprehensive Plan located in the exurban or rural tiers of the Palm
9 ~i Beach County Comprehensive Plan and other residential neighborhoods located in the
I0 exurban and rural tiers with at least 25 dwelling units as of the effective date of this
11 charter amendment.
13 PART 2. REFERENDUM AND BALLOT LANGUAGE
14 On November 2, 2004, a general election is to be held, and in accordance with the
15 requirements of the Constitution and Laws of Florida, the following question .shall be
16 placed on the ballot by the Supervisor et Elections:
17 EXCLUSIVE METHOD OF VOLUNTARY ANNEXATION IN PALM BEACH
18 COUNTY
19
20 Shall the Palm Beach County Charter be amended to authorize an ordinance providing
21 the exclusive method for voluntary annexations, including notice requirements and
22 designation of the area outside the urban service area as the unincorporated protection
23 area where voluntary annexation must be approved by the county commission, and which
24 includes unincorporated rural neighborhoods where voluntary annexation must be
25 approved by the county, commission and majority vote of electors residing within the
26 boundaries of that neighborhood?
27 YES
28 ~J NO
29
30 ~
31 PART 3. FORM OF NOTICE
32 The form of notice of the election by which this Charter shall be submi~ed to a
33 referendum shall contain the complete text of Parts i and 2 of this Ordinance.
3
PART 4. SEVERABILITY
2 If any section, paragraph, sentence, clause, phrase, or word of this Ordinance is
3 for any reason held by a Court of competent jurisdiction to be unconstitutional.
4 inoperative or void. such holding shah not affect the remainder of this Ordinance.
5 PART 5. INCLUSION IN THE CHARTER
6 In the event this proposed amendment is approved by referendum, Part 1 of this
7 :I Ordinance shall become and be made a part of the Home Rule Charter of Palm Beach
8 ~i County, Florida. The Articles or Sections of this Charter Amendment Ordinance may be
9 ![ renumbered or relettered to accomplish such, and the word "amendment" may be
10 ii changed to "section," "article," or any other appropriate word.
11 i! PART 6. EFFECTIVE DATE
12 This Ordinance shall become law on January. 1, 2005, if approved by a majority of
13 ~! those electors voting on the matter.
~4 ~ APPROVED and ADOPTED by the Board of County Commissioners of Palm
15 ii Beach County, Florida, on this the 17th day of August ,2004.
18 DOROTHY H. WILKEN, CLF_,~t~t~,~_,~, PALM BEACH COUNTY, FLORIDA,
. ..iZ :------
26 '1 APPROVED AS TO FORM
27 " AND LEGAL SUFFICIENCY
31 ~ ounty ttomey
32
3.3 :~ Filed with the Department of State on the ~ day of ,2004.
36 ~i
38 II U:~Exec\Data\annexcharteramendorcl.doc
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
THE VILLAGE OF WELLINGTON,
a Florida municipality, CASE NO.:
Plaintiff,
VS.
PALM BEACH COUNTY, Florida
a political subdivision,
Defendant.
/
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Plaintiffs, THE VILLAGE OF WELLINGTON, a Florida municipal corporation (hereinafter
"Wellington"), by and through its undersigned counsel, sues Defendant PALM BEACH COUNTY,
a political subdivision of the State of Florida (hereinafter "County"), and in support thereof would
state as follows:
GENERAL ALLEGATIONS
1. Wellington is a municipal corporation incorporated in the State of Florida and located
in Palm Beach County, Florida.
2. Defendant County is a political subdivision of the State of Florida.
3. Article VIII, Section 2 of the Florida Constitution provides that "Municipalities shall
have governmental, corporate and proprietary powers to enable them to conduct municipal
government, perform municipal functions and render municipal services, and may exercise any
power for municipal purposes except as otherwise provided by law." Additionally, Article VIII,
Section 2 provides that municipalities shall have the power to annex unincorporated territory as
provided by general or special law.
4. Chapter 171, Florida Statutes, provides the methods for municipalities to annex
territory into their jurisdiction, including the process for standard annexation and the process for
voluntary annexation.
5. Both processes for annexation are voluntary in nature. The standard process set forth
in Section 171.0413, Florida Statutes, is initiated by the passage of an ordinance by the goveming
body of the municipality which is subject to the affirmative vote of the registered voters in the area to
be annexed or if there are no voters in the area the consent of the owners of the majority of the
acreage and majority of parcels, in order to effectuate the ordinance. Section 171.044, Florida
Statutes, sets forth a procedure for property owner(s) to petition the municipality to be annexed into
the municipality when one hundred percent (100%) of the owners of the property(ies) consent to the
petition after which the municipality can pass an ordinance annex ing the property(ies).
6. While Section 171.044, Florida Statutes, is captioned "Voluntary Annexation" there
is no statutory definition for "voluntary annexation" and there is no process under general law
wherein an annexation to a municipality can take place without the mutual consent of the governing
body of the municipality and at least the majority of voters voting in referendum or the majority of
property owners consenting to the annexation.
7. Sub-Section 171.044 (4) Florida Statutes states:
(4) The method of annexation provided by this Section shall be
supplemental to any other procedure provided by general or special
law, except that this section shall not apply to municipalities in
counties with charters which provide for an exclusive method of
municipal annexation.
8. Palm Beach County is a charter county.
9. Palm Beach County's charter does not contain any problems dealing with materials or
purchases relating to municipal annexation.
10.. On August 17, 2004, the Palm Beach County Commission approved Ordinance 2004-
021 (the "Ballot Ordinance"), which requires that the following question shall be placed on the
ballot for November 2, 2004 by the Supervisor of Elections:
Shall the Palm Beach County Charter be mended to authorize
an ordinance providing for the exclusive method for voluntary
annexations, including notice requirements and designation of the
area outside the urban service area as unincorporated protection area
where voluntary annexation must be approved by the county
commission, and which includes unincorporated rural neighborhoods
where voluntary annexation must be approved by the county
commission and majority vote of electors residing within the
boundaries of that neighborhood? Yes __ No
A true and correct copy of the Ballot Ordinance is attached as Exhibit "A".
11.. The Ballot Ordinance itself acknowledges that Section 171.044(4) Fla. Stat. (2003)
Statutes provides authority for a charter county to provide for an exclusive method for voluntary
municipal annexation in its charter (see WHEREAS clause in Ballot Ordinance, emphasis added).
12. Section 1.1. of the proposed amended charter would state, however, that the County
has the "power to establish by ordinance the exclusive method for voluntary municipal annexation,
to the extent authorized by law, including the designation of an unincorporated protection area and
designation of unincorporated rural neighborhoods." At section 1.3., proposed amended charter
would provide as follows:
Nothing in this Charter shall prevent a municipality from
annexing an unincorporated area into its municipal boundaries, except
that all voluntary annexations shall be in accordance with the
exclusive method for voluntary municipal annexation established by
ordinance of the Board of County Commissioners, including the
designation of an unincorporated protection area and designation of
unincorporated rural neighborhoods. Voluntary annexation in an
unincorporated protection area requires approval by an affirmative
vote of at least five [of the seven] members of the board of county
commissioners. Voluntary annexation in an unincorporated rural
neighborhood requires approval by an affirmative vote of at least five
members of the board of county commissioners and a majority of thc
registered electors residing within thc boundaries of the
unincorporated rural neighborhood voting on the question (emphasis
added).
13. The proposed charter amendment would purport to give authority to the County
Commission to create by ordinance, as amended from time to time, the exclusive method of
voluntary amendment. The proposed charter amendment would not create a"charter which provides
for an exclusive method of voluntary annexation" as expressly required by Section 171.044.
14. The proposed charter amendment further purports to authorize the County
Commission to establish "unincorporated protection areas" and "unincorporated rural
neighborhoods." Voluntary annexation in any area designated by the County Commission at any
time as "unincorporated protection area" would require a supermajority of votes of the county
commission, or any other additional requirement the county commission chooses to impose by
ordinance in the future. Voluntary annexation in any area designated by the County Commission at
any time as "unincorporated rural neighborhood" would require a supermajority of votes of the
county commission plus a majority vote of the electors residing within the boundaries of the
neighborhood voting on the issue, or any other additional requirement the county commission
chooses to impose by ordinance in the future.
15. The proposed charter amendment refers to "voluntary annexation" but does not define
the term.
16. For all other unincorporated areas of Palm Beach County, not in the "unincorporated
protection areas" or the "unincorporated rural areas," the amended charter would not necessarily
provide any method for voluntary annexation.
4
17. The requirements set out in the proposed charter amendment for the future
"ordinance" would delegate to the County Commission the absolute power to decide, without any
guidance or standard, which voluntary annexations should be approved and which should be denied
in unincorporated areas contiguous to municipality that would qualify for future annexation.
18. Members of the County Commission have incorrectly stated on the public record that
the proposed charter amendment affects only some municipalities in Palm Beach County (i.e.
Wellington and Royal Palm Beach).
19. The proposed charter amendment gives a minority of the County Commission the
absolute power to prevent any voluntary annexation into municipality from broad unincorporated
areas. The proposed charter amendment would give a minority of the County Commission the
absolute power to reject any requests for voluntary annexations into a municipality without having
to give any reasons for any such denial.
20. The proposed charter amendment would give the county commission absolute power
to establish, expand, reduce or alter the so-called "unincorporated protection areas" and
"unincorporated rural neighborhoods," which will in each case affect the property rights of
individual property owners in such areas and the municipal rights of Cities without due process of
law.
21. The proposed charter amendment would empower the County Commission to subject
entire swaths of individual properties to its will without any recourse, standards, guidelines, due
process or rules other than the whim and will of the county commission. The boundaries of any such
areas would depend on the designation of urban service boundaries and other restrictive areas, which
would be made from time to time by the County Commission.
22. While the proposed charter amendment would make certain, as not yet defined areas,
eligible to become unincorporated rural neighborhoods, additional ordinances would be required in
each case to designate such areas. Such designations, affecting the exclusive method for voluntary
annexations, would all be outside the charter and not be reflected in the charter.
23. The proposed charter amendment fails to incorporate a map clearly designating the
boundaries of the various rural neighborhoods. It merely states that
areas eligible to be designated by ordinance as unincorporated
rural neighborhoods must be located in the unincorporated protection
area and are limited to recorded subdivisions and antiquated
subdivisions as defined in the Palm Beach County Comprehensive
Plan located in the exurban or rural tiers of the Palm Beach County
Comprehensive Plan and other residential neighborhoods located in
the exurban and rural tiers with at least 25 dwelling units as of the
effective date of this charter amendment.
24. The proposed charter amendment would not provide in the charter the exclusive
method for voluntary annexation, but would instead give a minority of the County Commission the
absolute power to prevent any voluntary annexations in certain areas, a goal the county commission
has expressly sought to accomplish with the amendment.
25. The proposed charter amendment fails to provide for any input by municipalities in
the voluntary annexation process. The proposed charter amendment would permit, on its terms, a
forced annexation of certain areas into a municipality that does not want to annex such areas.
26. By designating portions of unincorporated areas of Palm Beach County as
"unincorporated protection areas" or "unincorporated rural neighborhoods, with the intention of
preventing municipalities from annexing such areas, Defendant County is in fact defining municipal
borders of municipalities, including Plaintiffs. The language in the proposed amended charter would
make the definition of such areas dependent on the County's definition of its "urban service area,"
and the County Commission has the power to change its urban service area boundaries without
further referendum.
27. The proposed charter amendment violates the mandates of Defendant County's
Comprehensive Plan, which provides that "[T]he County shall work to reach general agreement on
ultimate municipal boundaries, to the maximum extent possible, through the Palm Beach County
intergovernmental Coordination program . . ." Objective 1.4, Policy 1.4-b.; Intergovernmental
Coordination Element. The County prepared the delineation of municipal annexation areas without
any input from the municipalities.
29. The proposed charter amendment is an improper device to prohibit "voluntary
annexation" into ,municipalities rather than the exclusive method for annexation in Palm Beach
County. Accordingly, the proposed charter amendment is more in the nature of a substantive change
in state law to obstruct annexation than a procedural change to provide a method to accomplish
voluntary annexation.
30. It is unclear how it will be determined whether the owners of areas designated as
"rural neighborhoods" and "unincorporated protection areas" in fact wish or agree to have their
property so designated.
31. The proposed charter amendment would not contribute to establishment of uniform
legislative standards throughout the state for the adjustment of municipal boundaries, nor to the
efficient delivery of services in such areas.
32. The establishment and amendment of the "unincorporated protection areas" and
"unincorporated rural neighborhoods" should require, at a minimum, the process of public hearings
to amend the Comprehensive Plan of Palm Beach County, land use classifications, and submission to
the Department of Community Affairs and other jurisdictional entities for final approval.
33. The proposed charter amendment would transfer a statutory fimction of a municipality
(Article vm, Section 2 of the Florida Constitution, determination of what land to annex) to the
County without fulfilling the procedural requirements of article VIII, Section 4 of the Florida
Constitution, concerning the transfer of power between governing bodies.
34. Article VI, Section 6.3 of the Palm Beach County Charter (Home Rule Charter
Amendments), provides that "each amendment to this Home Rule Charter shall be limited to a single
and independent subject."
35. The County's placement of the proposed charter amendment on the November ballot
leaves Plaintiffs in doubt as to its rights and the rights of the County under the proposed charter
amendment, as more fully set forth in the various causes of action for declaratory relief, stated below.
36. This Complaint's causes of action for declaratory relief are brought pursuant to
Chapter 86, Florida Statutes
37. Jurisdiction for the causes of action for declaratory relief in this matter is before this
Court pursuant to Section 86.011, Florida Statutes. Venue for this action is proper within Palm
Beach County, Florida.
38. The submission of the proposed charter amendment to the voters of Palm Beach
County would irreparably harm Plaintiff.
39. Plaintiff have no remedy at law. Plaintiffs are likely to prevail on the merits in this
case. An injunction against the placing of the ballot language on the ballot will serve the public
interest.
COUNT I: Declaratory Judgment that the proposed charter amendment violates Section
171.044, Fla. Stat., in that it would not provide in the charter for the exclusive
method of voluntary amendment.
40. The allegations in paragraphs 1 through 33 arc realleged and reaverred as though fully
set forth herein.
41. Pursuant to Chapter 171, Florida Statutes, and Article VII/, Section 2 of the Florida
Constitution, the power to annex, voluntarily or involuntarily, is a function, service and power of a
municipality, such as .municipal Plaintiffs That power may be abridged only if a charter county
provides for the exclusive method of "voluntary" annexation in its charter.
42. As stated more fully above, the proposed charter amendment, if passed by the electors
in Palm Beach County, would not set forth the exclusive method for voluntary annexation in Palm
Beach County. Instead, the proposed charter amendment would give power to the County
Commission to
(a) pass and subsequently amend an ordinance providing for the exclusive
method of voluntary annexation without any meaningful limitations;
(b) pass or amend ordinances defining "unincorporated protection areas" and
"unincorporated rural neighborhoods," as the County Commission deems fit in its absolute
discretion;
(c) reject applications for voluntary annexations that do not achieve a
supermajority before the county commission for any reason or no reason whatsoever;
(d) reject any applications for voluntary annexations into most of Wellington,
which is an announced goal of the county commission according to commissioners' public
statements.
(ii) The charter amendment authorizes, but does not mandate the passage of any
ordinance by the County Commission with respect to voluntary municipal annexation. If the charter
amendment passed, but the county commission did not pass an effectuating ordinance, the method
of annexation contemplated by Section 171.044, Florida Statutes, would not be applicable and the
only method of annexation would be under Section 171.0413, Florida Statutes.
43. The proposed charter amendment would not provide any method of voluntary
annexations for broad portions of Palm Beach County, which are not part of the "unincorporated
protection areas" or "unincorporated rural neighborhoods."
WHEREFORE, Wellington respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the proposed charter amendment is not valid or enforceable under applicable
law;
b. That the proposed charter amendment is invalid in that it does not create a charter
which provides for an exclusive method of municipal annexation.
c. That the proposed charter amendment further violates Section 171.044 in that it fails
to set forth, for large portions of Palm Beach County not located in the "unincorporated protection
areas" or "unincorporated rural neighborhoods," any voluntary annexation method;
d. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
e. That, injunctive relief shall issue striking the ballot question from the ballot for
November 2, 2004.
f. That, if the proposed charter amendment receives and affirmative vote, the proposed
charter amendment is not valid or enforceable under applicable law;
g. Wellington respectfully requests such other and further relief as the court deems
necessary and proper, including without limitation an award of its costs pursuant to Section 86.081
10
COUNT II: Declaratory Judgment that the proposed charter amendment violates the
charter's single subject requirement for amendments (Article VI, Section 6.3.,
Palm Beach County Charter).
45. The allegations in paragraphs 1 through 33 are realleged and reaverred as though fully
set forth herein.
46. This is an action for declaratory relief brought pursuant to Chapter 86, Florida
Statutes, declaring that the ballot language violates of Article VI, Section 6.3 of Palm Beach
County's Charter (Home Rule Charter Amendments), which provides that "each amendment to this
Home Rule Charter shall be limited to a single and independent subject."
47. The Ballot Ordinance places the following question on the ballot:
Shall the Palm Beach County Charter be amended to authorize
an ordinance providing for the exclusive method for voluntary
annexations, including notice requirements and designation of the
area outside the urban service area as unincorporated protection area
where voluntary annexation must be approved by the county
commission, and which includes unincorporated rural neighborhoods
where voluntary annexation must be approved by the county
commission and majority vote of electors residing within the
boundaries of that neighborhood? Yes __ No
48. The ballot question violates Article VI, Section 6.3.of the Palm Beach County Charter
because it concems at least four separate subjects:
a. Elimination of the availability of annexations in accordance with Section
171.044, Florida Statutes.
b. Authorization of the county commission to pass an ordinance providing for the
exclusive method of voluntary annexation.
c. Authorization of the County Commission to pass an ordinance designating an
unincorporated protection area where voluntary annexations would later have to be approved
by a super-majority vote of the Board of County Commissioners?
11
d. uthorization of the County Commission to pass an ordinance establishing
areas eligible to become unincorporated rural neighborhoods, where voluntary annexations
would later have to be approved by a super-majority of the Board of County Commissioners
and additionally by a majority vote of the electors residing in the neighborhood so designated
by the Commission.
49. The proposed charter amendment would substantially alter or perform the functions of
multiple aspects of government, including, without limitation, (1) the county commission may if it
chooses designate by ordinance the exclusive method of voluntary annexation; (2) the county
commission may if it chooses establish and freely amend unincorporated protection area boundaries;
and (3) the county commission may, if it chooses, establish and freely amend boundaries of areas
eligible to become unincorporated rural neighborhoods, and thereafter consider whether eligible
areas should in fact become rural neighborhoods.
WHEREFORE, Wellington respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the proposed charter amendment violates Article VI, Section 6.3 of Palm Beach
County's Charter (Home Rule Charter Amendments),
b. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
c. That, injunctive relief shall issue striking the ballot question from the ballot for
November 2, 2004.
d. That, if the proposed charter amendment receives and affirmative vote, the proposed
charter amendment is not valid or enforceable under applicable law;
e. Wellington respectfully requests such other and further relief as the court deems
12
necessary and proper, including without limitation an award of its costs pursuant to Section 86.081.
COUNT III: Declaratory Judgment that the proposed charter amendment violates Florida
Law in that the ballot question fails to provide its substance in clear and
unambiguous language.
50. The allegations in paragraphs 1 through 33 are re-alleged and re-averred as though
fully set forth herein.
51. This is an action for declaratory relief brought pursuant to Chapter 86, Florida
Statutes, declaring that the ballot language violates Section 101.161(1) Fla. Stat. in that the ballot
language does not state its substance clearly and unambiguously.
52. Section 101.161(1) of the Florida Statutes provides, in relevant part, that
Whenever a constitutional amendment or other public
measure is submitted to the vote of the people, the substance of such
amendment or other public measure shall be printed in clear and
unambiguous language on the ballot."
53. The intent of this section is to ensure that voters are advised of the tree meaning of a
proposed ballot measure.
54. The Ballot Ordinance places the following question on the ballot:
Shall the Palm Beach County Charter be amended to authorize
an ordinance providing for the exclusive method for voluntary
annexations, including notice requirements and designation of the
area outside the urban service area as unincorporated protection area
where voluntary annexation must be approved by the county
commission, and which includes unincorporated rural neighborhoods
where voluntary annexation must be approved by the county
commission and majority vote of electors residing within the
boundaries of that neighborhood? Yes __ No
55. The wording of the ballot question at issue is ambiguous, unclear and not capable of
being understood by a reasonable voter. It includes, without limitation, the following ambiguities
and infirmities:
13
i. Does the Palm Beach County Commission have an obligation to pass such an
ordinance if the charter amendment is approved?
ii. Does the clause "and which includes unincorporated neighborhoods..." refer to the
"the exclusive method of voluntary annexation," to "the unincorporated protection
area," or to the "ordinance"?
iii. Does the term "including" refer to "ordinance", to "amended", to "charter" or to
"exclusive method"?
iv. What will the exclusive method of annexation outside the "unincorporated protection
area" and the "unincorporated rural neighborhood" be?
v. Who decides which areas are to become "unincorporated rural neighborhoods?"
vi. What does it mean that areas become "eligible" to become "unincorporated rural
neighborhoods."
vii. How can any given elector determine what the exclusive method of annexation for
his/her unincorporated property will be if the proposed amendment is adopted?
viii. Does this charter amendment give the county commission the power to later place
property currently in the urban service areas (i.e. not in the "unincorporated
protection area" or the "unincorporated rural neighborhood") in the protected areas,
or vice versa, and thereby subjecting such property to annexation restrictions that do
not apply at the time of the vote?
ix. Does this charter amendment give the county commission the fight to approve
annexations with a 5:2 supermajority vote over the objection of the annexing
municipality (i.e. forced annexation)?
x. Does this amendment really provide for the exclusive method of voluntary
14
annexation in Palm Beach County, or only in certain portions of Palm Beach County?.
xi. Is municipal acquiescence to the annexation necessary?
WHEREFORE, Wellington respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the proposed charter amendment violates Florida Statute 101.161 (1) because it is
unclear and ambiguous;
b. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
c. That, injunctive relief shall issue striking the ballot question from the ballot for
November 2, 2004.
d. That, if the proposed charter amendment receives and affirmative vote, the proposed
charter amendment is not valid or enforceable under applicable law;
e. Wellington respectfully requests such other and further relief as the court deems
necessary and proper, including without limitation an award of its costs pursuant to Section 86.081.
COUNT IV: 1)eelaratory Judgment that the proposed charter amendment violates Article
VIII, Section 2 of the Florida Constitution in that it is an unlawful delegation to
let the Palm Beach County Commission determine municipal boundaries.
56. The allegations in paragraphs 1 through 33 are re-alleged and re-averred as though
fully set forth herein.
57. This is an action for declaratory relief brought pursuant to Chapter 86, Florida
Statutes, declaring that the proposed charter amendment is invalid because it improperly delegates to
the Palm Beach County Commission the power to determine municipal borders by means of the
proposed power to designate "unincorporated protection areas" and "unincorporated rural
15
neighborhoods," and by approving or even forcing annexations over the objections of the annexing
municipality, all in violation of Article VIII, Section 2 of the Florida Constitution.
58. Municipalities may exercise municipal powers except as otherwise provided by law.
Art VIII, Sec. 2, Florida Constitution. Such a law is Section 171.044, which provides that the
municipal power to determine boundaries may be limited by charter provisions providing for the
exclusive method of voluntary annexation.
59. By adopting the charter amendment as proposed, the voters of Palm Beach County
would delegate the authority to limit the municipalities' power to determine their boundary from
themselves to the County commission.
60. The language of the charter amendment is not attended by meaningful standards for
the exercise of this power by the County Commission.
61. The language in the amended charter would make the definition of"unincorporated
protection areas" and "unincorporated rural neighborhoods," dependent on the County's definition of
its "urban service area."
62. The County Commission has the power to change its "urban service area" boundaries
without further referendum. As such, the proposed charter amendment gives the power to the County
Commission to define, in the furore, annexation areas and thus municipal boundaries.
63. The proposed Charter amendment, on its face, would let the county commission pass
an ordinance that completely ignores the wishes and procedures of municipalities in the annexation
process.
64. The charter amendment would let the county commission enact an ordinance that
could force municipalities to accept undesirable annexations if a supermajority of the county
commission approves such annexations.
16
WHEREFORE, Plaintiffs respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the proposed charter amendment violates Article VIII, Section 2 of the Florida
Constitution by improperly delegating to Defendant County the power to define municipal boarders;
b. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
c. That, injunctive relief shall issue striking the ballot question from the ballot for
November 2, 2004.
d. That, if the proposed charter amendment receives and affirmative vote, the proposed
charter amendment is not valid or enforceable under applicable law;
e. Plaintiffs respectfully requests such other and further relief as the court deems
necessary and proper, including without limitation an award of its costs pursuant to Section 86.081.
COUNT V: Declaratory Judgment that the proposed charter amendment is illegal in that it
violates the Intergovernmental Coordination Element in the Palm Beach
County Comprehensive Plan.
65. The allegations in paragraphs 1 through 33 are realleged and reaverred as though fully
set forth herein.
66. This is an action for declaratory relief brought pursuant to Chapter 86, Florida
Statutes, declaring that the proposed charter amendment violates the mandates of Defendant
County's Comprehensive Plan, which provides that "IT]he County shall work to reach general
agreement on ultimate municipal boundaries, to the maximum extent possible, through the Palm
Beach County intergovernmental coordination program . . ." Objective 1.4, Policy 1.4-b.;
Intergovernmental Coordination Element. The County prepared the delineation of municipal
17
annexation areas without any input from the municipalities.
WHEREFORE, Plaintiffs respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the proposed charter amendment is improper in that it violates the mandates of
Palm Beach County's Comprehensive Plan, Intergovernmental Coordination Element, Objective 1.4,
Policy 1.4-b
b. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
c. That, injunctive relief shall issue striking the ballot question from the ballot for
November 2, 2004.
d. That, if the proposed charter amendment receives and affirmative vote, the proposed
charter amendment is not valid or enforceable under applicable law;
e. Plaintiffs respectfully requests such other and further relief as the court deems
necessary and proper, including without limitation an award of its costs pursuant to Section 86.081.
COUNT VI: Declaratory Judgment that the Ballot Ordinance violates the law in that it
fails to properly define the rural protection areas and rural neighborhood
areas the County Commission may include in any exclusive annexation
ordinances it may adopt.
67. The allegations in paragraphs 1 through 33 are realleged and reaverred as though fully
set forth herein.
68. The proposed charter amendment fails to properly define the "unincorporated
protection areas" and "unincorporated rural neighborhoods."
69. The proposed charter amendment fails to include a map or legal description of areas
to be so designated.
18
70. The proposed charter amendment does not require the County Commission to
designate any areas, or any specific areas as "unincorporated protection areas" or "unincorporated
rural neighborhoods."
71. The areas the County Commission may designate can be changed subsequently by the
County Commission without further input of the electors. Accordingly, the electors cannot know
whether they will be located in an "unincorporated protection area" or "unincorporated rural
neighborhood" when the County Commission finally enacts an ordinance providing for the exclusive
method for voluntary annexation.
72. The purported definition in the charter amendment for areas eligible to be included as
"unincorporated protection area" or "rural neighborhood area" is so vague, that a reasonable elector
would be unable to determine whether or not property he owns would be located in an
"unincorporated protection area" or "unincorporated rural neighborhood" when the County
Commission finally designates them.
73. The proposed amended charter defines these areas as follows:
The unincorporated protection area is defined as all unincorporated
lands located outside of the urban service area established in the Palm beach
County Comprehensive Plan. Areas eligible to be designated by ordinance as
unincorporated rural neighborhoods must be located in the unincorporated
protection area and are limited to recorded subdivisions and antiquated
subdivisions as defined in the Palm Beach County Comprehensive Plan
located in the exurban or rural tiers of the Palm beach County Comprehensive
Plan and other residential neighborhoods located in the exurban and rural
tiers with at least 25 dwelling units as of the effective date of this charter
amendment.
74. This is an action for declaratory relief brought pursuant to Chapter 86, Florida
Statutes, declaring that the definition of unincorporated protection areas and unincorporated rural
neighborhood in Ballot Ordinance is unconstitutionally vague and invalid under Section 101.161 Fla.
19
Stat (2003),.
WHEREFORE, Plaintiffs respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the Ballot Ordinance violates the law in that it inadequately defines the areas the
County may designate as "unincorporated protection area or unincorporated rural neighborhood.
b. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
c. That, injunctive relief shall issue striking the ballot question fi-om the ballot for
November 2, 2004.
d. That, if the proposed charter amendment receives and affirmative vote, the proposed
charter amendment is not valid or enforceable under applicable law;
e. Wellington respectfully requests such other and further relief as the court deems
necessary and proper, including without limitation an award of its costs pursuant to Section 86.081.
COUNT VII: Declaratory Judgment that the proposed charter amendment is illegal in that it
violates Section 171.021, Fla. Stat., which mandates annexation law is to provide
state wide uniform annexation standards and assurances for the efficient
provision of urban services.
75. The allegations in paragraphs 1 through 33 are re-alleged and re-averred as though
fully set forth herein.
76. This is an action for declaratory relief brought pursuant to Chapter 86, Florida
Statutes, declaring the proposed charter amendment would violate the purposes of Chapter 171
Florida Statute, which is to provide state wide uniform annexation standards and assurances for
the efficient provision of urban services. Section 171.021 Fla. Stat (2003).
20
77. Rather than creating uniform legal standards for annexation laws in Florida, the
proposed charter amendment would create an entirely unique legal system for annexation in Palm
Beach County, where the exclusive method for voluntary annexation is determined by county
ordinance, and where the system suffers from the other infirmities alleged above.
78. Rather than ensuring the efficient provision of urban services, the proposed charter
amendment would prevent the most efficient provision of such services. Annexation by adjacent
municipalities with service capacity could be and would be stymied by Palm Beach County, who is
seeking to preempt local municipalities from annexing, and subsequently selling services to,
currently unincorporated areas of Palm Beach County.
79. The proposed charter amendment is part of a concerted effort by the County to usurp
and reserve unto itself the power to provide services in unincorporated areas or to block any other
service providers until such time in the future as the County decides to provide services in such
areas. Accordingly, the proposed charter amendment runs counter to the legislatively mandated
purpose of annexation laws.
WHEREFORE, Plaintiffs respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the proposed charter amendment violates Section 171.021, Fla. Stat.
b. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
c. That, injunctive relief shall issue striking the ballot question from the ballot for
November 2, 2004.
d. That, if the proposed charter amendment receives and affirmative vote, the proposed
charter amendment is not valid or enforceable under applicable law;
21
e. Plaintiffs respectfully requests such other and further relief as the court deems
necessary and proper, including without limitation an award of its costs pursuant to Section 86.081.
COUNT VIII: I)eelaratory Judgment that the proposed charter amendment is
unconstitutional in that it would transfer a statutory function ora municipality
to the County without following the proper procedure for such a transfer of
power.
80. The allegations in paragraphs 1 through 33 are re-alleged and re-averred as though
fully set forth herein.
81. This is an action for declaratory relief brought pursuant to Chapter 86, Florida
Statutes, declaring the proposed charter amendment would transfer a statutory function of a
municipality (Article VIII, Section 2 of the Florida Constitution, determination of what land to
annex) to the County without fulfilling the procedural requirements of article VIII, section 4 of the
Florida Constitution, conceming the transfer of power between governing bodies.
WHEREFORE, Plaintiffs respectfully requests that this Court accept jurisdiction over this
matter and issue a judgment declaring the following:
a. That the proposed charter amendment is invalid because it would transfer a statutory
function of a municipality (Article vm, Section 2 of the Florida Constitution, determination of what
land to annex) to the County, without fulfilling the procedural requirements of article VIII, section 4
of the Florida Constitution, concerning the transfer of power between governing bodies.
b. That it was not proper to submit the proposed charter amendment to the voters of
Palm Beach County;
c. That, injunctive relief shall issue striking the ballot question from the ballot for
November 2, 2004.
d. That, if the proposed charter amendment receives and affirmative vote, the proposed
22
charter amendment is not valid or enforceable under applicable law;
e. Plaintiffs respectfully requests such other and further relief as the court deems necessary
and proper, including without limitation an award of its costs pursuant to Section 86.081
Respectfully submitted,
Lehtinen, Vargas & Riedi, P.A.
Special Counsel for the Village of Wellington
7700 N. Kendall Drive, Ste 303
Miami, FL 33156
Tel: 305 279 1166
Fax: 305 279 1365
By:
Dexter Lehtinen, Esq., Fla. Bar #
Claudio Riedi, Esq., Fla. Bar # 984 930
Anthony J. O'Donnell, Esq., Fla. Bar #
Brinkley, McNemey, Morgan, Solomon & Tatum, LLP
General Counsel for the Village of Wellington
200 East Las Olas Blvd., 19th Floor
Fort Lauderdale, FL 33301
Tel: (954) 522 2200
Fax: (954) 522 9123
By:
Jeffrey Kurtz, Esq., Fla. Bar #
Quentin E. Morgan, Esq., Fla. Bar #
23
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
TIlE VILLAGE OF WELLINGTON,
a Florida municipality, CASE NO.:
Plaintiffs,
VS.
PALM BEACIt COUNTY, Florida
a political subdivision,
Defendant.
/
MOTION FOR TEMPORARY INJUNCTION AND
REQUEST FOR EXPEDITED HEARING
Plaintiff, THE VILLAGE OF WELLINGTON, files this Motion for Temporary Injunction
and shows this Court as follows:
1. In this Motion, Plaintiff requests that thc Court enter a temporary injunction to
prevent submission to the electors of Palm Beach County of an unconstitutional proposal for a
charter amendment.
2. The proposed charter amendment is unconstitutional because it is inconsistent with
superior law, as follows: (a) the proposed charter amendment violates the requirements of Section
171.044 Florida Statutes; (b) the proposed charter amendment violates the single-subject requirement
for amendments to the Palm Beach County Charter; and (3) the proposed charter language is
unconstitutional because it fails to advise the voters of the chief purpose of the proposed amendment.
3.
3. The statement of facts set forth in the Memorandum of Law below, the Affidavit of
[or Verified Complaint], and the Exhibits attached to the [Verified] Complaint
demonstrate that Plaintiffs meet the standard for, and are entitled to, a temporary injunction.
4. The proposed charter amendment is inconsistent with superior law, requiring an
immediate injunction preventing this ballot measure from going to the electors of Palm Beach
County.
5. Plaintiff"will suffer irreparable injury for which any available remedy at law would
be inadequate" because the adoption of the unconstitutional charter amendment would (a) prejudice
Plaintiff's rights to determine the constitutionality of the charter amendment in a neutral forum, free
of preconceived notions as to political desirability of the charter amendment; (b) confuse the electors
of Palm Beach County; and (c) require hundreds of thousands of voters of Palm Beach County to
expend the effort to vote on a measure that is facially unconstitutional. The injury thus caused could
not be remedied with payment of money to every voter of Palm Beach County who made the effort
to vote on this unconstitutional charter amendment. The damage to the credibility of the electoral
process could not be repaired by compelling the County to take any specific action after the fact.
Irreparable injury is further demonstrated in the [Verified] Complaint filed in this cause, which is
incorporated herein by reference.
6. Second, there is a substantial likelihood that Plaintiff will succeed on the merits of
this action because Defendant has acted in flagrant violation of the express requirements of Sections
171.044 and 101.161 Fla. Stat. and of Article VI, Section 6.3 of Palm Beach County's Charter
(Home Rule Charter Amendments). Further violations are alleged in the Complaint filed together
with this Motion.
7. The balance of the equities favors Plaintiff, given that delaying this ballot measure
would not cause any prejudice to Defendant's ability to place this measure on a subsequent ballot if it
should prevail. Plaintiff, in contrast, would have to fundamentally alter their legal procedures for
voluntary annexation if the ballot measure prevails, even if it is later struck as unconstitutional.
Preserving the status quo pending the adjudication of this issue of great public importance requires
that the charter amendment proposal is removed from the ballot of November 2, 2004.
8. Public policy concerns require the issuance of an injunction to avoid voter confusion
and unnecessary expenditures of public funds for a vote on an unconstitutional ballot question.
9. Plaintiffs request an expedited heating of this matter since the injunctive relief
requested would be meaningless if issued in the normal course of legal proceedings. The Court
should give emergency consideration to this Motion because regular consideration would effectively
deny Plaimiffs their fights and cause irreparable harm.
MEMORANDUM OF LAW
A. Statement of Relevant Facts.
Plaimiffs are a municipal corporations (municipalities) incorporated in the State of Florida
and located in Palm Beach County, Florida. Defendant County is a political subdivision of the State
of Florida.
Article VIII, Section 2 of the Florida Constitution provides that "Municipalities shall have
governmental, corporate and proprietary powers to enable them to conduct municipal government,
perform municipal functions and render municipal services, and may exercise any power for
municipal purposes except as otherwise provided by law." Additionally, Article VIII, Section 2
provides that municipalities shall have thc power to annex unincorporated territory as provided by
general or special law. Chapter 171, Florida Statutes, provides the methods for municipalities to
annex territory into their jurisdiction, including the process for standard annexation and the process
for voluntary annexation. Subsection 171.044 Florida Statutes states:
The method of [voluntary] annexation provided by this
Section shall be supplemental to any other procedure provided by
general or special law, except that this section shall not apply to
municipalities in counties with charters which provide for an
exclusive method of municipal annexation.
On August 17, 2004, the Palm Beach County Commission approved Ordinance 2004- 021
(the "Ballot Ordinance"), which requires that the following question shall be placed on the ballot for
November 2, 2004 by the Supervisor of Elections:
Shall the Palm Beach County Charter be mended to authorize
an ordinance providing for the exclusive method for voluntary
annexations, including notice requirements and designation of the
area outside the urban service area as unincorporated protection area
where voluntary annexation must be approved by the county
commission, and which includes unincorporated rural neighborhoods
where voluntary annexation must be approved by the county
commission and majority vote of electors residing within the
boundaries of that neighborhood? Yes __ No
See Exhibit "A" to Complaint, at page __ The ballot ordinance itself acknowledges that Sec.
171.044(4), Florida Statutes provides authority for a charter county to provide for an exclusive
method for voluntary municipal annexation in its charter (see WHEREAS clause in ballot ordinance,
emphasis added).
Section 1.1. of the proposed amended charter would state, however, that the County
Commission would be delegated the "power to establish by ordinance the exclusive method for
voluntary municipal annexation, to the extent authorized by law, including the designation of an
unincorporated protection area and designation of unincorporated rural neighborhoods." At section
1.3., the proposed amended charter would provide as follows:
Nothing in this Charter shall prevent a municipality from
annexing an unincorporated area into its municipal boundaries, except
that all voluntary annexations shall be in accordance with the
exclusive method for voluntary municipal annexation established by
ordinance of the Board of County Commissioners, including the
designation of an unincorporated protection area and designation of
unincorporated rural neighborhoods. Voluntary annexation in an
unincorporated protection area requires approval by an affirmative
vote of at least five [of the seven] members of the board of county
commissioners. Voluntary annexation in an unincorporated rural
neighborhood requires approval by an affirmative vote of at least five
members of the board of county commissioners and a majority of the
registered electors residing within the boundaries of the
unincorporated rural neighborhood voting on the question.
The proposed charter amendment would thus purport to give the power to the County Commission to
create by ordinance, as amended fi.om time to time, the exclusive method of voluntary amendment.
The proposed charter amendment further purports to authorize the County Commission to
establish "unincorporated protection areas" and areas eligible to become "unincorporated rural
neighborhoods." Voluntary annexation in any area so designated by the County Commission at any
time would require a supermajority of votes of the county commission, and, in the case of
unincorporated rural neighborhoods, additionally an affirmative vote of 50% or greater of all electors
residing in the rural neighborhood. The proposed charter amendment appears to authorize the
County Commission to impose additional requirements for voluntary annexation at any time in the
future by ordinance. Further, the proposed charter amendment is not mandatory with respect to the
County Commission, letting the County Commission decide whether or not to provide by ordinance
for an exclusive method of voluntary annexation in Palm Beach County. For all other unincorporated
areas, not in the unincorporated protection areas or the unincorporated rural areas, the amended
charter would not even purport to provide any method for voluntary annexation.
Article VI, Section 6.3 of the Charter (Home Rule Charter Amendments), provides that"each
5
amendment to this Home Rule Charter shall be limited to a single and independent subject." Section
101.161 (1) of the Florida Statutes provides, in relevant part, that the substance of such amendment or
other public measure shall be printed in clear and unambiguous language on the ballot. A tree and
correct copy of the ballot ordinance, setting forth the wording of the proposed charter amendment, is
attached hereto and speaks for itself.
ARGUMENT
A. An In]unction Against Placing the Proposed Charter Amendment Should be Issued
Because the Charter Amentment is Unconstitutional.
Injunctive relief striking a proposed charter amendment from a ballot is proper where the
proposed charter amendment is unconstitutional in its entirety. Dade County v. Dade County League
of Municipalities, 104 So.2d 512, 515-516 (Fla. 1958); see also Adams v. Gunter, 238 So.2d 824
(Fla. 1970); Duval County v. Jennings, 164 So. 356 (Fla. 1935). There is a long line of precedent for
striking invalid ballot questions. Dulane¥ v. City of Miami Beach, 96 So.2d 550, 551 (Fla. 3d DCA
1957), City of Miami Beach v. Smith, 251 So.2d 290, 292 (Fla. 3d DCA 1971), cert denied, 257
So.2d 561 (Fla. 1971). An election should not be held if the ordinance proposed is invalid on its
face. Wilson v. Dade County, 369 So.2d 1002 (Fla. 3d DCA 1979). As is more fully set forth below,
the proposed charter amendment is unconstitutional, on its face and in its entirety, and the Court
should issue an injunction directing the supervisor of elections not to place the proposed charter
amendment on the November 2, 2004 ballot.
Whether a proposed county charter provision is unconstitutional entails a two-prong test.
Violation of either or both prongs renders a charter provision unconstitutional. See Hillsborough
County v. Florida Restaurant Association, Inc., 603 So.2d 587 (Fla. 2d DCA 1992). The first prong
asks whether the charter provision's subject matter has been preempted by the constitution or general
law. Id., at 603 So.2d 588-589. If the subject matter has not been preempted, the second prong is
applied to deten'nine whether the proposed county charter provision is inconsistent with superior law.
Id., at 603 So.2d 591. In the instant case, the proposed charter amendment primarily fails the second
prong. It violates the mandates of superior law.
1. Violation of Chapter 171.044~ Fla. Stat.
The proposed charter amendment plainly violates the mandates of Chapter 171 of the Florida
Statutes. Chapter 171, Florida Statutes, prOvides two section setting forth methods for
municipalities to annex territory into their jurisdiction.. Both processes for annexation are voluntary
in nature. The standard process set forth in Section 171.0413, Florida Statutes, is initiated by the
passage of an ordinance by the governing body of the municipality which is subject to the affirmative
vote of the registered voters in the area to be annexed or if there are no voters in the area the consent
of the owners of the majority of the acreage and majority of parcels, in order to effectuate the
ordinance. Section 171.044, Florida Statutes, sets forth a procedure for property owner(s) to petition
the municipality to be annexed into the municipality when one hundred percent (100%) of the
owners of the property(ies) consent to the petition after which the municipality can pass an ordinance
annex ing the property(ies).
While Section 171.044, Florida Statutes, is captioned "Voluntary Annexation" there is no
statutory definition for "voluntary annexation" and there is no process under general law wherein an
annexation to a municipality can take place without the mutual consent of the governing body of the
municipality and at least the majority of voters voting in referendum or the majority of property
owners consenting to the annexation. Section 171.044 Florida Statutes states:
(4) The method of ] annexation provided by this Section shall be
supplemental to any other procedure provided by general or special
law, except that this section shall not apply to municipalities in
counties with charters which provide for an exclusive method of
municipal annexation.
Accordingly, unless a charter county has a charter which provides for the exclusive method of
municipal annexation, the procedures of Section 171.044, Fla. Stat. i.allow for a streamlined
annexation procedures when 100% of the property owner(s) petition to have their contiguous
compact properties annexed into an adjacent municipality. Stated in the affirmative, if a charter
county wishes to have a charter which provides for an exclusive method of municipal annexation, its
voters may elect to have such a charter, which would render the method provided by Section
171.044, Fla. Stat. inapplicable.
The proposed charter amendment in the instant case does not, by its own terms, create a
"charter which provides for an exclusive method of annexation." Instead, it creates a charter that
delegates the power to create such an exclusive method of "voluntary annexation" to the county
commission. Nowhere in the charter amendment is "voluntary annexation" defined or distinguished.
A charter provision providing for the exclusive method of annexation differs fi.om most other
charter provisions in that a Florida Statute expressly requires that the charter itself must provide the
exclusive method of annexation. It is thus not sufficient to simply set forth certain parameters the
County Commission must follow when passing its ordinance creating the exclusive method. It is not
adequate for the charter to "authorize" the county commission to enact an exclusive method by
ordinance. It is not acceptable for the charter, as it is in most other contexts, to provide the general
framework, to be fleshed with methods and procedures by ordinance. The statute is perfectly clear in
requiring that the charter itself must provide the exclusive method. Thus the proposed charter
amendment in this case fails.
The proposed charter amendment plainly delegates to the county commission the authority,
though not the necessity, to come up with a concrete"exclusive method for voluntary annexation:"
Shall the Palm Beach County Charter be amended to authorize
an ordinance providing for the exclusive method for voluntary
annexations, including notice requirements and designation of the
area outside the urban service area as unincorporated protection area
where voluntary annexation must be approved by the county
commission, and which includes unincorporated rural neighborhoods
where voluntary annexation must be approved by the county
commission and majority vote of electors residing within the
boundaries of that neighborhood? Yes __ No
Section 1.1. of the proposed amended charter would state that the County has the "power to
establish by ordinance the exclusive method for voluntary municipal annexation..." At section 1.3.,
proposed amended charter provides that all voluntary annexations shall be in accordance with the
exclusive method for voluntary municipal annexation established by ordinance of the Board of
County Commissioners. Given that only "charters which provide for the exclusive method of
municipal annexation" can tromp the general statutory provisions of Section 171.044, Florida
Statutes, concerning voluntary annexation, it is readily apparent that the proposed charter amendment
falls short.
Rather than setting forth, in the charter, what the exclusive method for voluntary annexation
will be in Palm Beach County, the proposed charter amendment would authorize the County
Commission to create by ordinance, as amended from time to time, the exclusive method of
voluntary amendment. The distinction is very significant. The statute requires that charter counties
state their exclusive methods in their charter, thus requiring a county-wide affirmative vote of the
electors for subsequent amendments. Where the law provides for citizen control over land control,
such citizen control is to be enforced. See. Florida Land Co. v. CiW of Winter Springs, 427 So.2d
170, 173 (Fla. 1983). The proposed charter amendment would remove this power to create and
amend the exclusive method from the people and delegate it to the county commission, which is
impermissible given the clear statutory language. See also Holzendorfv. Bell, 606 So.2d 645,648
(Fla. 1st DCA 1992) (charter amendment usurping legislature's authority to allocate referendum
powers is defective and must not be placed on ballot).
The proposed charter amendment would also authorize the County Commission to establish
(and later amend) "unincorporated protection areas" and "unincorporated rural neighborhoods,"
where voluntary annexation requires a 5-2 affirmative county commission vote.~ While the
proposed charter amendment would make certain, as not yet defined areas, eligible to become
unincorporated rural neighborhoods, additional ordinances would be required in each case to
designate such areas. Such designations, affecting the exclusive method for voluntary annexations,
all would be outside the charter framework and not be reflected in the charter. Again, Section
171.044 requires the exclusive method of municipal annexation for any given area to be stated in the
charter itself, and not to be delegated to the County' Commission's absolute discretion.
This delegation is particularly inappropriate in the instant case, where it comes without
adequate standards for its exercise. See Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st
DCA 1977), aff'd. 372 So.2d 913 (Fla. 1979) (delegation of legislative power over land regulation is
defective without adequate standards for its exercise). With the proposed charter amendment in this
case, the County Commission would be free to enact, not to enact, or to later amend an ordinance
with the exclusive method, and would thereafter be free to manipulate the "unincorporated protection
~ That provision would give three county commissioners an absolute veto power over
voluntary annexation. Voluntary annexation in "unincorporated rural neighborhoods" would
additionally require approval by "a majority of the registered electors residing within the boundaries
of the unincorporated neighborhood voting on the question."
Because it is unclear whether "voting on the question" refers to "neighborhood" or to electors, it may
well be that an absolute majority of the registered voters in a given rural neighborhood is required.
Given that it is exceedingly rare that a majority of the electors even tums out to vote (only three
times, and then only barely, since 1998), voluntary annexation in those areas would become
10
areas" and "unincorporated rural neighborhoods" to suit its purposes. If the County Commission
were to enact such an ordinance, and if it were to reach a consensus on unincorporated protection
areas and rural neighborhoods, the County Commission would be free to accept or reject any
applications for voluntary annexations in this area without having to explain its vote in any way. The
proposed charter amendment contains virtually no standards for the exercise of this delegated right.
An unsuccessful applicant for voluntary annexation under the proposed charter amendment would
have absolutely no recourse or avenue of review, no matter how egregious or discriminatory the
County Commission's reasons might be. Without specific standards accompanying the delegation of
this rulemaking power to the county commission, the process would quickly become the domain of
lobbyists and the politically powerful. The law simply does not permit such delegation.
Had the drafters of chapter 171.044 wanted to give this power to elected officials, they could
have done so in the statute. They could have spoken of"counties with ordinances which provide for
the exclusive method of annexation," or of"counties that wish to delegate the authority to pass an
ordinance with the exclusive method of annexation to their county commission." This they did not
do. They made it abundantly clear that the provisions of Chapter 171 could be displaced only by
"charters which provide for the exclusive method." As the Fourth District stated when considering a
charter amendment in Shulmeister v. Larkins, 856 So.2d 1149, 1151 (Fla. 4th DCA 2003), "[t]he
language in Section 22 [of the charter] is plain and obvious. Therefore, we are precluded from
construing it in a way which would extend, modify, or limit its express terms or its reasonable and
obvious implications." See Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1150 (Fla. 2000)." If
the legislators had intended to include county commission ordinances as a valid method to trump
Section 171.044, they could have done so by clear language.
practically impossible.
A good example of how such a charter amendment could be properly accomplished is the
Orange County Voluntary Annexation Provision. Copy of Section 505 -- Voluntary annexation- is
attached as Exhibit "B" . This charter provision does exactly what the proposed Palm Beach
County charter amendment fails to do:
a. It sets forth, in the charter, what the exclusive method for voluntary annexation will
be. It does not provide for authority to the county commission to subsequently create the exclusive
method by ordinance;
b. It then creates, by subsequent charter amendments, three separate preservation
districts. The preservation districts are precisely defined, by boundary maps clearly referenced, and
are in each case voted on by county-wide referendum;
c. Voluntary annexation in the protection district must be approved by a simple majority
of the county commission, and by a majority of the registered electors residing in the preservation
district and actually voting on the issue.
d. The board of county commissioners is then given authority to adopt "regulations and
procedures to implement this method of voluntary annexation."
e. The charter provision, as accepted by Orange County voters in 1992, concerned only
one single subject, the creation of a method of voluntary annexation for preservation district
specifically designated in the charter. Designation of special areas happened later in separate charter
amendments.
The Orange County charter provision demonstrates that it is feasible to follow the dictates of
Section 171.044, and to set forth the exclusive method in the charter. While the Orange County
charter may have its own weaknesses, it does appear to try to follow the directives of the Florida
12
Statute. The Palm Beach County charter amendment does not.
2. Violation of the Single Subject Requirement in the Palm Beach County Charter.
Another superior law violated by the proposed ballot language is Palm Beach County's own
charter. At Article VI, Section 6.3 of Palm Beach County's Charter (Home Rule Charter
Amendments), the Charter states that "[e]ach amendment to this Home Rule Charter shall be limited
to a single and independent subject." The ballot ordinance places the following question on the
ballot:
Shall the Palm Beach County Charter be amended to authorize
an ordinance providing for the exclusive method for voluntary
annexations, including notice requirements and designation of the
area outside the urban service area as unincorporated protection area
where voluntary annexation must be approved by the county
commission, and which includes unincorporated rural neighborhoods
where voluntary annexation must be approved by the county
commission and majority vote of electors residing within the
boundaries of that neighborhood? Yes __ No
An analysis of the proposed charter amendment, as set forth in the ballot ordinance, demonstrates
that the proposed charter amendment concerns at least three separate subjects, has numerous
purposes, and purports to enumerate several classifications of land areas that would be disparately
affected by the proposed charter amendment. The amendment thus violates Article VI, Section
6.3.of the Palm Beach County Charter.
Among the disparate questions and land classifications made in the proposed amendment are
the following:
a. Shall the County charter be amended to authorize the county commission to
pass an ordinance providing for the exclusive method of voluntary annexation?
b. Shall the County charter be amended to authorize the County Commission to
pass an ordinance designating an unincorporated protection area where voluntary annexations would
13
later have to be approved by a super-majority vote of the Board of County Commissioners?
c. Shall the County charter be amended to authorize the County Commission to
pass an ordinance establishing areas eligible to become unincorporated rural neighborhoods, where
voluntary annexations would later have to be approved by a super-majority of the Board of County
Commissioners and additionally by a majority vote of the electors residing in the neighborhood so
designated by the Commission.
Single-subject provisions in charters are strictly construed. See Shulmeister v. Larkins, 856
So.2d 1149 (Fla. 4th DCA 2003) (Pompano Beach City Charter including single-subject requirement
for ordinances and resolutions, only). There can be no doubt that the Palm Beach County Charter
contains a single-subject requirement for charter amendments. The sole issue is, therefore, whether
the proposed charter amendment contains more than one subject.
The seminal Florida case on this subject is Fine v. Firestone, 448 So.2d 984 (Fla. 1984). The
purpose of the single-subject rule, it was explained, is to avoid voters having to accept part of a
proposal which they oppose in order to obtain a change which they support. Id__:. The crucial question
is whether a given proposal has a "logical and natural oneness of purpose." See Fine v. Firestone, at
448 So.2d 984, 988 (1984). Perhaps the most instructive case for purposes of the instant controversy
is In Re: Advisory Opinion to the Attorney General - Restricts Laws Related to Discrimination, 632
So.2d 1018 (Fla. 1994), where the Florida Supreme Court agreed that it had to consider whether
there is a "oneness in purpose" in the proposed amendment. Id. at 1020. The Florida Supreme
Court emphasized that "enfolding disparate subjects within the cloak of a broad generality does not
satisfy the single0-subject requirement." Id.; see also Evans v. Firestone, 457 So.2d 1351, 1353 (Fla.
1984). Thus, while a "single purpose" can be found for every ballot proposal from sufficient
intellectual distance, the law requires scrutiny up close. With every word in the proposal considered,
14
the proposal must include no more than one single dominant plan. See In Re Advisory Opinion of
the Attorney General, 592 So.2d 225, 227 (Fla. 1991).
In Fine, supra, the Florida Supreme Court disapproved a proposed amendment that
characterized the provisions as affecting the single subject of revenues because it actually affected
the government's ability to tax, government user-fee operations, and funding of capital
improvements through revenue bonds. In the case of In Re: Advisory Opinion to the Attorney
General - Restricts Laws Related to Discrimination, 632 So.2d 1018 (Fla. 1994), a proposed
amendment was struck as violative of the single-subject rule because the subject of the amendment-
discrimination- was an expansive generality that encompassed both civil fights and the power of all
state and local governmental bodies. Id. at 1020. The amendment was struck from the ballot
because it encroached on municipal home rule powers and rulemaking authority of executive
agencies and the judiciary. Similarly, the proposed charter amendment in the instant case gives the
County commission the power to designate, as it pleases, three separate areas (a) unincorporated
protection areas, (b) unincorporated urban neighborhoods, and (c) the remaining areas of Palm Beach
County), and to provide disparate methods of voluntary annexation for each such area. The proposed
charter amendment encroaches on municipal home rule powers in that it essentially prevents cities
like Wellington from performing essential municipal functions (determination of its borders) to a
large extent. It also severely curtails private property rights, given that a property owner in an
unincorporated area contiguous to a municipality would no longer have an independent right to
decide whether or not to be annexed by that municipality.
The purpose of the proposed charter amendment, on its face, is to give authority to the
County commission to create and presumably amend an ordinance. However, Palm Beach County
Commissioner Massilotti announced the purpose of the charter amendment to be as follows during
the County Commission Meeting on August 17, 2004:
Let's kinda cut to the chase, folks, this was put together to protect the
Acreage and Loxahatchee because of Wellington's attempt to annex
GKK mines, and give it 2,400 building units, and then, local
newspapers reporting that they really weren't gonna do that .... So
this is not about let's protect our fights and get rid [unintelligible]
places. This is about a couple of cities trying to gobble up 130,000
acres and change the zoning on behalf of a couple of large
landowners, and create problems for this board to deal with, and their
elected officials to complain that the county commissioners aren't
building roads and schools fast enough, and aren't supporting the
park system. Well, it is really hard to build roads and schools and
parks and the other responsibilities from the school board and the
counties' perspective, when in fact re-zoning is running rampant in
areas, and areas that were zoned two homes an acre mm into fourteen
homes an acre or multi-family. It's very difficult for this board to
keep up with the needs of the county residents for fire rescue when in
fact folks are annexing in and rezoning large chunks of property,
without phase-in, without proper notification.
Transcript of Commission Meeting of August 17, 2004, at pp.
Commission Chairwoman Karen Marcus saw a somewhat different purpose
for the charter amendment.
We started to doing it because of what happened with, as
commissioner Massilotti described, the Wellington area. We saw a
threat to our rural communities, Loxahatchee.
Transcript of Commission Meeting of August 17, 2004, at pp
Commissioner Koons stated, on his County Web Site, that the purpose of the proposed
referendum is to provide
... a method of voluntary annexation for western residential areas.
If approved, unincorporated communities such as Loxahatchee and
The Acreage would be designated as "rural neighborhoods" and could
not be annexed by a municipality without residents' approval and that
of at least five County Commissioners (super majority). It provides
16
an additional level of protection for areas that may not want to
become part of a city.
http://pbcgov.com/PublnfNews_Room/08-04/08-25-04_ballot.htm
Meanwhile, County Attorney Bob Banks conceded that the charter amendment would
authorize the County Commission to impose procedural requirements for voluntary annexations in
the in the urban service area (i.e. the rest of the county outside the "unincorporated protection area"
and "unincorporated rural neighborhoods"). See transcript of Commission Meeting of Augnst 17, at
PP.~
It is patently obvious, that the proposed charter amendment does not have a"single purpose"
as required by law. A plain reading of the charter amendment language suggests that the purpose is
to give the county commission authority to enact ordinances, covering the entire County, designating
annexation methods, to designate unincorporated protection areas, and to designate as of yet
unknown areas to be eligible to become "unincorporated rural area". Commissioner Massilotti
perceives the purpose of the charter amendment to be the protection of over-stretched county
resources. Commissioners Marcus and Koons see the purpose as "protection of rural neighborhoods"
fi.om takeovers by communities such as Wellington, and represented publicly that the charter
amendment will not affect the urbanized cities in the east of the County. County Attomey Banks sees
as an additional purpose the establishment of notice provisions in urban areas.
The proponents of this ballot amendment could have followed the mandates of the single-
subject role and drafted the proposed amendment in several ballot questions, so as to enable voters to
accept the amendment they truly want. Yet they chose to log-roll a host of separate purposes into a
charter amendment that accomplishes numerous purposes. It appears that themultiplicityofsubjects
was born out of the County Commission's desire to create obstacles to voluntary annexation of
3.7
varying height, reserving unto itself maximum discretion to prevent annexation in unincorporated
areas, or at least to extract the maximum price from any party attempting annexation. As has become
abundantly clear in recent months from the County's collateral efforts to amend its Comprehensive
Land Use Plan, the County wants to block any municipality from providing services in heretofore
unincorporated and unserviced areas. One way to accomplish that goal, is to block annexation of
such unserviced areas in the west, because annexation usually leads to providing services by the
annexing municipality. The County has made it abundantly clear that it intends to sell its services, in
the future, in most of today's unincorporated areas, including the eagerly anticipated Scripps research
campus. One could say, thus, that the genesis of the County's charter amendment efforts lie in the
Scripps-driven efforts of the County to monopolize the sale of services in the unincorporated urban
Although the proposed charter amendment in the instant case is offered as a single
amendment to the charter, it is obviously multifarious. It does not give the electorate the opportunity
to express approval or disapproval severally as to each major change suggested. Adams v. Gunter,
238 So.2d 824 (Fla. 1970); Rivera-Cmz v. Gray, 104 So.2d 501 (1958). The ballot question as
presented to the Palm Beach County voters requires them to accept or reject all of the proposed
amendment in toro, granting broad authority to the Commission to adopt an as-yet-unknown
ordinance serving numerous purposes. Even though the voters may be in favor of creating, in the
charter, an exclusive method of voluntary annexation, they may not want to be part of an
unicorpoarated rural neighborhood, or they may not want to be excluded at some time in the future
when the urban service boundary is moved. Yet, this proposed charter amendment requires them to
accept all purposes if they only want one. The Palm Beach County voter is basically asked to give
one yes or no answer to a proposal that asks three or more questions. See In Re: Advisory Opinion
18
to the Attorney General-Restricts Laws Related to Discrimination, 632 So.2d 1018 (Fla. 1994). For
example, a Palm Beach County Voter may want to have an exclusive method of voluntary
annexation for the entire county, but may not want to give the power to enact it to the County
Commission. Another voter may like the concept of county commission approval of voluntary
annexations, but may not like the areas to be designated for special status. The proposed charter
amendment clearly violates the single subject rule, and the ballot question is thus unconstitutional.
3. Violation of Fla. Stat 101.161 for Failure to Advise Voters of Chief Purpose of
the Proposed Amendment.
To be placed on the ballot, the ballot summary also must bc legally sufficient under Section
101.161, Fla. Stat (2003).
Subsection 101.161 (1) provides, in pertinent part:
Whenever a constitutional amendment or other public
measure is submitted to the vote of the people, the substance of such
amendment or other public measure shall be printed in clear and
unambiguous language on the ballot . . . the substance 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. The ballot title shall consist of a caption, not exceeding
15 words in length, by which thc measure is commonly referred to or
spoken of.
The purpose of section 101.161 is "to assure that the electorate is advised of the truc
meaning, and ramifications, of an amendment." Askew v. Firestone, 421 So.2d 151, 156 (Fla. 1982).
The Florida Supreme Court has cautioned against approving the validity of a ballot summary that is
not clearly understandable. In Re: Advisory Opinion to the Attorney General - Restricts Laws
Related to Discrimination, 632 So.2d 1018, 1021 (Fla. 1994.
The critical issue concerning the language of the ballot summary is whether the public has
"fair notice" of thc meaning and effect of the proposed amendment. Id._~. In the instant case, the
public has neither.
a. The Meaning of the Ballot Snmmary and the Ballot Amendment in General is
Ambiguous.
Even a cursory reading of the ballot summary raises numerous questions concerning the
meaning of the proposed amendment, which simply cannot be answered or understood by reference
to the text of the proposed amendment:
EXCLUSIVE METHOD OF VOLUNTARY ANNEXATION IN
PALM BEACH COUNTY
Shall the Palm Beach County Charter be amended to authorize
an ordinance providing for the exclusive method for voluntary
annexations, including notice requirements and designation of the
area outside the urban service area as unincorporated protection area
where voluntary annexation must be approved by the county
commission, and which includes unincorporated rural neighborhoods
where voluntary annexation must be approved by the county
commission and majority vote of electors residing within the
boundaries of that neighborhood? Yes __ No
Some of the obvious ambiguities are as follows:
i. Does the Palm Beach County Commission have an obligation to pass such an
ordinance if the charter amendment is approved?
ii. Does the clause "and which includes unincorporated neighborhoods..." refer to the
"the exclusive method of voluntary annexation," to "the unincorporated protection
area," or to the "ordinance"?
iii. Does the term "including" refer to "ordinance", to "amended", to "charter" or to
"exclusive method"?
iv. What will the exclusive method of annexation outside the 'hmincorporated protection
area" and the "unincorporated rural neighborhood" be?
v. Who decides which areas are to become "unincorporated rural neighborhoods," and
20
what does it mean that areas become "eligible" to become "unincorporated rural
neighborhoods."
vi. How can any given elector determine what the exclusive method of annexation for
his/her unincorporated property will be if the proposed amendment is adopted?
vii. Does this charter amendment give the county commission the power to later place
property currently in the urban service areas (i.e. not in the "unincorporated
protection area" or the "unincorporated rural neighborhood") in the protected areas,
and thereby subjecting such property to annexation restrictions that do not apply at
the time of the vote?
viii. Does this charter amendment give the county commission the right to approve
annexations with a 5:2 supermajority vote over the objection of the annexing
municipality (i.e. forced annexation)?
ix. Does this amendment really provide for the exclusive method of voluntary
annexation in Palm Beach County, or only in certain portions of Palm Beach County?
It is blatantly obvious that the title and the summary of the ballot measure do not give the
voters "fair notice" of the meaning of the proposed amendment, thus violating Section 101.161 (1),
Fla. Stat.
b. The Effect of the Proposed Charter Amendment is Completely Unclear.
As is clear from the questions in the preceding section, it is entirely impossible for a voter to
determine from thc ballot language whether he/she would be affected by the exclusive method the
County Commission may adopt at some time in the future. More significantly, thc County
Commission has insisted that this amendment docs not concern, as thc ballot title suggests, all of
Palm Bach County. During the August 17, 2004 County Commission meeting, and in deciding
whether or not to submit this charter amendment to the voters of Palm Beach County, Council
chairwoman Karen Marcus stated:
Commissioner Marcus: Let me make sure that we understand that
this [ballot] ordinance does not affect any one of those [Palm Beach
County] cities that got up here and talked to us. None. Correct?
Staff: Correct.
Transcript of Commission Meeting of August 17, 2004, at pp
Commissioner Greene: Let me ask you a question, make sure the
public understands. This is not going to affect what [Palm Beach
County Cities] cities?
Commissioner Marcus: Any cities, other than Royal Palm Beach
and Wellington, and all it affects them is they can't keep going further
west.
Transcript of Commission Meeting of August 17, 2004, at pp
Not onlywas Commissioners Marcus' statement blatantly false, but the stated effect appears
nowhere in the ballot language. For practical purposes, the ballot language renders even an educated
voter incapable to determine what the mae effect of the ballot measure would be. The "tree meaning
and ramifications of the Amendment" are absolutely impossible to determine from this ballot
proposal. Askew v. Firestone, 421 So.2d 151, 156 (Fla. 1982). As such, the proposed charter
amendment violates Section 101.161 (2003). The proposed charter amendment must be stricken
from the November 2, 2004 ballot.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court enter an injunction
preventing the proposed charter amendment from being placed on the November 2, 2004 ballot, and
grant such other and further relief as the Court deems necessary and proper.
22
REQUEST FOR EXPEDITED HEARING
Given the impending November 2, 2004 election, and given the paucity of factual issues to be
developed in discovery, Plaintiff respectfully requests an expedited hearing on this matter.
Respectfully submitted,
Lehtinen, Vargas & Riedi, P.A.
Special Counsel for the Village of Wellington
7700 N. Kendall Drive, Ste 303
Miami, FL 33156
Tel: (305) 279 1166
Fax: (305) 279 1365
By:
Dexter W. Lehtinen, Esq., Fla. Bar #265551
Claudio Riedi, Esq., Fla. Bar # 984930
Anthony J. O'Dormell, Esq., Fla. Bar #0239501
and
Brinkley, McNemey, Morgan, Solomon & Tatum, LLP
General Counsel for the Village of Wellington
200 East Las Olas Blvd., 19th Floor
Fort Lauderdale, FL 33301
Tel: (954) 522 2200
Fax: (954) 522 9123
Jeffrey Kurtz, Esq., Fla. Bar # 494178
Quentin E. Morgan, Esq., Fla. Bar #386642
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