Death Knell for Democracy?

When the Florida legislature passed SB 540 during last year’s session, sustainable growth advocates cried foul. The non-partisan non-profit Friends of the Everglades said it would “effectively end citizen challenges to comprehensive plan amendments by saddling those who challenge an amendment and lose with the other side’s legal fees.” This week, we discovered just how correct they and other critics had been.

Florida cities and counties are required to complete a comprehensive land use plan, a vital long-term planning tool that guides physical growth and development. It is a crucial tool for local governments, not just in terms of managing growth and preserving natural resources, but also in promoting sustainable development, a need that is becoming increasingly urgent in our rapidly changing world.

The comp plan also informs residents and prospective residents as to what future growth will or at least can look like so that they can make major life decisions with at least some idea of what the future will hold in the communities where they decide to make their homes.

In recent decades, it has become alarmingly commonplace for local governments to either ignore their own comp plan requirements or rubber stamp endless requests for comp plan amendments that do not meet the stated criteria for such exceptions. This not only undermines the integrity of the comprehensive plan but also raises concerns about the transparency and accountability of the process.

People who have spent their life savings to purchase 5-15 acre ranches in rural areas that were supposed to remain sparsely populated have seen approvals for amendments to bring condos, townhomes, apartment rental complexes, and other high-density developments to places they were never intended to be, grossly changing the character of those communities.

Families who were drawn to rural areas with quiet country roads have seen incompatible amendments quickly turn them into neighborhoods where it is far less safe for young children to ride their bikes or play near the streets without constant supervision. Those who live near our water bodies or enjoy utilizing them for sport and recreation have seen a spike in algal blooms and other environmental degradations that reduce their quality of life. 

Time after time, a sizable contingent of these citizens have shown up to voice their opposition to comp plan amendments when they are brought before their local government. Oftentimes, they can even be heard explaining to elected officials the rather obvious fact that most of the requested amendments run contrary to the government’s own policies.

However, in the post-Citizens United era, elected officials tend to fear the wrath of special interests far more than even impressively organized opposition groups. Politicians calculate that they can afford to anger dozens, hundreds, and even a few thousand voters far more than they can afford to incur the wrath of one deep-pocketed developer who has proven time and again to be willing to spare no expense in dispatching pols who dare to stand in his way.

Curing such maladies via the ballot box was difficult enough even before the Supreme Court ruled that money was speech and corporations were people, so any effort to limit such influence would violate their constitutional rights. Elections are staggered, so it generally takes multiple cycles to flip a majority, and doing so usually will not affect most of the bad decisions made by predecessors.

As such, challenging a comp plan amendment in court, as expensive as it was, had been the only viable method in terms of citizens holding their local governments in check when they did not follow their own rules. In my experience, opposition groups would usually find the cost of waging a challenge prohibitive, especially because most judges are reluctant to rule against a legislative decision rendered by the appropriate governing authority, its incompatibility with policy notwithstanding.

That said, there have still been many instances where legal challenges to comp plan amendments have served as the fail-safe in the process. But those days seem to be over. This week, TBT publisher and former Manatee County Commissioner Joe McClash withdrew his challenge of Manatee County’s much-loathed decision to eviscerate its wetland protection policies. Seemingly the first challenge brought since the new law went into effect, McClash’s served as a test case of sorts.

When Gov. Ron DeSantis signed SB 540 into law, some questions arose about what would constitute a “prevailing party” when triggering the legal cost reimbursement aspect of the legislation. McClash, who is not an attorney and was representing himself in the challenge, felt understandably confident that the county would be found to have disregarded its own rules.

When amending the comp plan, the county was required to find “that the goal, objective, policy, or map sought to be amended is no longer in the best interest of the public." Since the county did not even attempt to make that case, and doing so would be a tall order, to say the least, McClash had hoped that any outcome would, at a minimum, include some degree of corrective action being taken by the county.

Even if the county was ultimately able to achieve the same outcome, were they to take corrective action in the process, McClash relied upon the typical rules for this type of challenge to be considered “not a non-prevailing party,” protecting a citizen from outrageous costs, proving the county's action was not consistent with the rules—a component of the statute that is ostensibly there to protect a citizen challenging the action.

That is not how the judge interpreted the statute, which meant that McClash's chances of getting stuck with a giant tab for countless hours billed to a large team of high-priced attorneys skyrocketed exponentially. Hence, this statute has effectively removed the last defense against bad government regarding comp plan amendments. And let’s be clear: that was the whole point of this legislation in the first place.

Land development is big business in Florida, and in a pay-to-play “democracy,” big business has big influence. First, they buy the elected local officials. Then those officials ruthlessly gut the bureaucracy, filling it with yes men and women who understand exactly who’s running the show. They also buy the state legislators who add an extra layer of protection by eliminating home rule at every turn and passing state legislation that is even more favorable and less scrutinized by the public as an endless slew of bills are rushed through a single 60-day annual session.

Republicans used to be about small government, claiming it was more effective because citizens could have greater influence when it was smaller and closer to home. Keep government close enough that you can always get your hands around its neck was a popular conservative sentiment. Yet it remains those same Republicans who so often seek to reduce individual choice while outsourcing more and more decision-making power from small governments to larger ones.

I believe it is safe to say that we no longer live in a functioning democracy. We live instead in a corporatist kleptocracy in which a small number of elites have captured enough of our institutions to safely laugh at our threats to bring them down via the power of our vote. If that changes, it will not be because we get the money out of politics, repeal Citizens United, enact ranked choice voting, or institute term limits. Under the current dynamics, each would require those who are benefiting the most from the status quo to cede power to those who would reduce their ability to benefit disproportionately. That's exactly why Gov. DeSantis also signed a bill into law that precludes local governments from enacting ranked choice voting.

No, if we are to right the ship (and/or enact any of those very much-needed aforementioned reforms), it will require a new paradigm on the other side of the ledger, one in which a deeply engaged voting base learns to disengage from culture war red meat and focus instead on holding all elected officials accountable to democratic norms that reflect the sort of societal values we once aspired to.

If we keep falling for the same age-old trick of keeping the masses divided and distracted for the benefit of the small minority at the top, then those elites will keep exploiting that dynamic for their own gains. As Orwell said, the power is always with the proles … if only they would learn how to use it.

Dennis "Mitch" Maley is an editor and columnist for The Bradenton Times and the host of our weekly podcast. With over two decades of experience as a journalist, he has covered Manatee County government since 2010. He is a graduate of Shippensburg University and later served as a Captain in the U.S. Army. Click here for his bio. His 2016 short story collection, Casting Shadows, was recently reissued and is available here.