CEO 89-32 -- July 27, 1989

 

VOTING CONFLICT OF INTEREST

 

CITY COMMISSIONER VOTING ON PROPOSED

DEVELOPMENT NEAR HIS RESTAURANT

 

To:††††† (Name withheld at the personís request.)

 

SUMMARY:

 

A city commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting on a measure concerning the re-alignment or reconfiguring of the number of parking spaces in or landscaping and repaving of a public right of way, when customers of the commissioner's nearby restaurant sometimes use the available parking in the right of way.He would be prohibited from voting on a measure involving a decrease in available parking.CEO 85-87 and CEO 85-77 are referenced.

 

QUESTION:

 

Are you, a city commissioner, prohibited from voting on a measure which could re-configure, decrease, or re-align available parking spaces, or to improve the public right of way on which the spaces are located by landscaping and repaving, when the parking spaces may be used by customers of your nearby restaurant?

 

Your question is answered below.

 

In your letter of inquiry, you inform us that you are the City CommissionPresident in the City of Lighthouse Point.In the City there is an area known as Tillotson Square, around which is a public right of way.This right of way is designated as the Tillotson Square Parking Area on the City's official map and accommodates approximately 200 cars.The center of Tillotson Square, which is privately owned, has been designated as a potential park site by the City in its land use plans since 1979.Over the years,various committees have been formed, some with the participation of City government, and others being groups of concerned citizens, to attempt to obtain a consensus of diverse viewpoints as to what should be done with Tillotson Square.

A restaurant in which you currently own a one third interest is located on an island across the lake from Tillotson Square and has been in that location since 1929.You also own a one-third interest in an investment corporation which owns a private parking lot adjacent to Tillotson Square.Customers of your restaurant use the parking lot, which is the only privately owned parking lot in the area.Customers of other businesses near or in Tillotson Square must park in the City right of way.These businesses include a 115 slip private marina which has no on site or off street parking, a marine service, a yacht broker, and another restaurant.

As your restaurant was in existence before the inception of the City, it is "grandfathered in"with respect to meeting the City's current off-street parking requirements.For over thirty years the overflow parking for the restaurant (50 to 75 cars on busy nights), the overflow parking from various condominiums and apartment buildings surrounding Tillotson Square, and other members of the public have parked in the City right of way.However, no parking spaces in the right of way are reserved or set aside for any particular business or any specific use.

A developer has presented a proposal to the Commission which provides for the construction of a five story boat storage shed on Block "A" of Tillotson Square.On the maps and drawings of Tillotson Square which are attached to your request, it can be seen that Block "A" of Tillotson Square roughly approximates the shape of a doughnut hole, and that the public right of way and the Tillotson Square parking area surround Block "A" much like a doughnut hole is surrounded by the doughnut.The proposed building would be totally self-contained, using only Block "A" and providing all of its proposed parking needs wholly in that area without any realignment of the City right of way.This proposal also has been deemed moot by the City Attorney, as the area where the shed is proposed to be located is designated for acquisition as a park by the City's land use plan.A building permit therefore cannot be issued unless this designation is lifted by the City Commission or until the expiration of 18 months following the adoption of the current land use plan.

You feel certain, however, that the future will bring another development, park, or land swap proposal involving some part or all of the Tillotson Square area, and you desire direction on which proposals brought before the City Commission, if any, require you to abstain from voting.You believe that one possible proposal would provide for a park or a private development in Block "A" with no change to the City right of way.Another possible alternative would propose either a park, a private development, or a mixed use development combining a park, private development, and public parking.In this alternative, the public right of way and the private property in the center would be realigned, and there would be either no appreciable change to the amount of available parking in the right of way, or a possible decrease in the parking area.A third possibility is a proposal to spend City funds to "spruce up" the area by landscaping and repaving.

In regard to your question, Section 112.3143(3) provides:

 

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained.Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstainingfrom voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in theminutes.However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting.[Section 112.3143(3), Florida Statutes.]

 

In CEO 85-87, we determined that a city council member who was a vice president of a bank was not prohibited from voting on the sale and redevelopment of property located one block from the main office of the bank.We reasoned in that opinion that the gain or loss to the value of the property on which the bank was located was too speculative to allow us to conclude that it would inure to the special private gain of the bank.Somewhat similarly, in CEO 85-77, we held that a school board member who owned a retail clothing business near the site of a proposed school district administrative complex was not prohibited from voting on the use of the school district's property.We opined that although presumably all retail businesses in the area would benefit from the construction of a large office complex, any perceived gain to the business was too speculative to allow us to conclude that the school board member was required to abstain.

We believe that in regard to a reconfiguration or realignment of parking spaces or a change in the landscaping of the area, your situation is analogous to that addressed in CEO 85-77.We cannot say that an adjustment of existing parking spaces which does not involve a decrease would inure to the special private gain of you or your restaurant.This is especially true in light of the fact that no specific parking places are reserved for your business.Nor can we say that landscaping or repaving of the public right of way would create a special private gain to you or your business, as we believe that any benefit created by these actions would be too speculative for us to conclude that you are required to abstain.

We do believe that a change which involves a decrease in the available parking used by customers of your restaurant would inure to your special private gain or that of your restaurant.We reach this conclusion because of the fact that apparently the private parking area used by the restaurant does not have enough parking to accommodate all of its customers.On busy nights, 50 to 75 cars may have to use parking which is located in the City right of way, which is a substantial amount of the available public parking.A decrease in the amount of spaces available in the right of way could have an economic impact upon you and your restaurant.

The fact that other businesses in the area do not own private lots and use only the public right of way does not change our opinion.Nor does the fact that residents of the area use the public parking.There are only a few businesses in the area, and your restaurant appears to utilize a large number of the available parking spaces in the City right of way.This may be especially true in the evening.Although all businesses in thearea presumably would suffer some detriment by a decrease in the available parking, we still believe that the effect on you and them would be unique from that of most residents of the City, or even of residents near Tillotson Square.

We also must note that in regard to any private development in the area, if the development were to involve a proposed restaurant or business facility which might be said to be in competition with your restaurant, you also might be required to abstain from voting on the proposal.We would suggest that you request another opinion should such a circumstance arise.

Accordingly, we find that Section 112.3143(3) does not require you to abstain from voting on a measure which involves only a realignment of existing parking spaces in the public right of way, or which involves landscaping of the area.Section 112.3143(3) would require you to abstain from voting on a measure which involves a decrease in available parking to the area.