BRADENTON BEACH – The city of Bradenton Beach does not have to put four charter amendments proposed by the Keep Our Residential Neighborhoods (KORN) political action committee on an upcoming city ballot.
The ruling by 12th Judicial Circuit Court Judge Edward Nicholas was issued at the Thursday, March 5 hearing that was a continuation of a hearing that began in December.
KORN initiatives
KORN, founded in March 2018 by chairperson Reed Mapes and treasurer John Metz, collected petition signatures from Bradenton Beach voters in hopes of placing four charter amendment initiatives on the November 2018 ballot.
The first proposed charter initiative sought to place in the city charter a citywide prohibition on multi-level parking garages. The second sought the mandatory hiring of a city manager empowered to hire and fire city staff. The third sought to prohibit the construction of anything but fences, driveways and utility services in building setbacks, and to require that all stormwater management systems be contained in the setbacks. The fourth sought to prohibit vacant city commission seats from being filled by commission appointment.
After receiving the petition signatures, City Clerk Terri Sanclemente and City Attorney Ricinda Perry identified several deficiencies, including ballot language that exceeded the state-imposed word limits, ballot language that contained political rhetoric and an attempt to decide land use issues by voter referendum.
In June 2018, the city commission cited these deficiencies and refused to forward the petitions to Supervisor of Elections Mike Bennett’s office to verify whether at least 10% of the city’s registered voters signed each initiative.
The city commission also convened a charter review committee to review the KORN initiatives and recommend alternative charter amendments to propose to city voters.
On July 5, 2018, KORN filed a lawsuit against the city seeking a court order for the city to submit the petition signatures to the elections office and place any initiative that met the 10% threshold on a future ballot. This resulted in a hearing before 12th Judicial Circuit Court Judge Lon Arend in September 2018.
In November 2018, city voters adopted all seven charter amendments proposed by the charter review committee.
In February 2019, Arend issued a final judgment ordering the city to present the KORN petition signatures to the elections office and proceed accordingly.
In August 2019, Bennet’s office determined three of the four initiatives met the 10% threshold.
On Sept. 5, 2019, Bennett sent Sanclemente a letter informing her that none of KORN’s charter initiatives would appear on the November ballot because the ballot language did not comply with Florida Statutes.
Enforcement sought
On Sept. 13, 2019, KORN attorney Robert Hendrickson filed a motion seeking the enforcement of Arend’s final ruling. Arend had rotated to another division so the case was assigned to Nicholas.
Hendrickson’s motion was first argued on Dec. 6, with attorney Chuck Johnson representing the city. The December hearing included opening arguments from both attorneys and testimony from Perry, who was called as a witness.
The hearing continued on March 5 with Johnson still cross-examining Perry. Perry said the charter review committee amendments adopted by city voters essentially addressed the same issues as the KORN initiatives. Perry noted one KORN initiative included the word “cronyism” and she mentioned the excess word counts.
Perry said adoption of KORN’s third amendment could result in the city having to repay millions of dollars in grant money received for city stormwater improvements made on private property through easements granted by the property owners. She also said setback restrictions would prevent the construction of private docks.
City Engineer Lynn Burnett testified the city is contractually obligated to maintain for 20 years any stormwater improvements completed using Southwest Florida Water Management District (Swiftmud) grant money.
Burnett said the adoption of that amendment could result in the city having to repay Swiftmud more than $2.2 million for grant money received and could also jeopardize the $600,000 anticipated for pending stormwater improvements.
During closing arguments, Hendrickson alleged the city willfully violated Judge Arend’s order by replacing the KORN initiatives with the charter review committee amendments. Hendrickson said the city did not have the discretion to do something different than what Judge Arend ordered.
Hendrickson claimed the city violated Judge Arend’s order by including KORN’s original ballot language in the city resolution presented to the Supervisor of Elections for placement on the 2019 ballot. Hendrickson said the city knew the ballot questions would be rejected as written because of their deficiencies.
Johnson contended Arend’s order did not specify the exact ballot language to be presented to city voters. He also reiterated the Swiftmud funding implications.
Judge’s ruling
Before issuing his verbal ruling, Nicholas addressed the change in judges.
“There is an inherent challenge in one judge interpreting and potentially enforcing a colleague’s order. I’ll do my best here to interpret Judge Arend’s order and rule in a way that I think is consistent with his order and the law,” he said.
“It is clear to me that Judge Arend’s final judgment allowed for the likelihood of challenge and allowed for the likelihood of further litigation. I think Judge Arend fully anticipated there might be challenges to initiative number 3. Putting private property owners in charge of maintaining stormwater management systems on their own property would almost certainly have resulted in challenge and litigation,” Nicholas said.
“Do I think it would have been preferable for the city to have asked the court for guidance in their effort to implement his order? Yes, I do. However, I cannot say the city willfully and intentionally failed to comply with Judge Arend’s final judgment,” Nicholas said.
“Judge Arend did not definitively say what language specifically should be submitted to the Supervisor of Elections. Judge Arend recognized the city still bore a duty and a responsibility to make sure the ballot language complied with Section 101.161 in Florida law. This is important. The plaintiffs’ motion for enforcement of final judgment and for sanctions is denied,” Nicholas concluded.
