CEO 93-21 -- July 15, 1993
VOTING CONFLICT OF INTEREST
CITY PLANNING AND ZONING COMMISSIONER VOTING ON
DEVELOPER'S SPECIAL ZONING EXCEPTION REQUEST TO
CHANGE USES OF LOTS ONE CITY BLOCK FROM LOTS
OWNED BY HER AND HER HUSBAND
To: Mr. J. Patrick Floyd, Attorney for City of Apalachicola Planning and Zoning Commission (Port St. Joe)
A city planning and zoning commissioner is not prohibited by Sections 112.3143(3) and 112.3143(4), Florida Statutes, from voting and participating on a developer's special exception request to change the designated uses of two lots located a city block apart from lots owned by the commissioner and her husband, because there is no indication that she would be voting on a measure that inured either to her or to her husband's special private gain. Any benefit to the property would be too remote and speculative to constitute special gain. CEO's 93-4, 91-17, 86-44, and 85-77, are referenced.
Is a city planning and zoning commissioner prohibited by Sections 112.3143(3) and 112.3143(4), Florida Statutes, from voting and participating on a developer's special zoning exception request to change the designated uses on two lots a city block apart from lots owned by the commissioner and her husband from Riverfront District to Multi-family Residential?
Your question is answered in the negative.
In your letter of inquiry and your response to questions from staff, you advise that you are requesting this opinion on behalf of Martha Pearl Ward, a member of the City of Apalachicola Planning and Zoning Commission. The Commissioner is concerned that a voting conflict of interest in violation of Sections 112.3143(3)(a) and (4) would be created by her participation and voting on the granting of a special zoning exception requested by a developer of riverfront lots which are located about one city block apart from lots owned by the Commissioner and her husband. The developer is requesting that the lots' permissible uses be changed from Riverfront District to Multi-Family Residential use.
You advise that there are approximately fifty waterfront parcels of land along the Apalachicola River in the City of Apalachicola. All of these lots, you advise, are zoned Riverfront District (RF), which limits their uses to "that which has traditionally served as the center of the City's economy." Such principal uses include the following:
1. Retail and wholesale seafood,
2. Ship repair yards and dry dock facilities,
3. Marine supplies and bait shops,
4. Ice houses,
8. Recreation facilities, and
9. Boat sales and service.
You also advise that multi-family and single family residential uses are two of the five uses which may be allowed as special exceptions by the Planning and Zoning Commission and the City after public notice and hearing and after appropriate conditions and safeguards are imposed. However, you advise that no other special exceptions have been granted by the City for multi-family residential use for any of the riverfront lots.
You advise that a developer wishes to construct two duplexes and two single units on 171 feet of this riverfront property (Wharf Lot F and the southeast 48 feet of Wharf Lot 29), and has submitted a request for a special exception to allow multi-family residential use on the property. Enclosed with your letter of inquiry was a copy of a notice sent by the City to those people who own property "abutting" the property which is the subject of the special exception request. The notice was intended to inform its recipients of the scheduled public hearing of the City's Planning and Zoning Board and requested any written comments that the recipient might have.
The husband of the Planning and Zoning Commissioner filed written comments objecting to the special exception request, stating: "I do not feel that this type of development is compatible with riverfront commercial business as well as seafood processing." At the public hearing before the Planning and Zoning Commission, the husband also stated: "[M]y main concern is that its a traditional waterfront for the seafood industry, and that's the way I would like it to stay." He and the Commissioner own Riverfront Lots 24 and 25, on which sits a company that he operates. The company unloads seafood products from boats, processes and freezes shrimp and other seafood, and wholesales and distributes the processed seafood by truck from his loading dock. You advise that the proposed residential use would not restrict or in any way impact the quantity or quality of the seafood delivered to the company, its processing, or its sale and distribution.
Although your letter and your transcription of the Commissioner's husband's oral presentation to the Planning and Zoning Commission indicates only that his objection to the special exception is that multi-family residential use is inconsistent with the seafood processing business, the developer's "Petition for Disqualification of Member," which he filed with the Planning and Zoning Commission, states that the Commissioner's husband was concerned that the granting of the special exception would adversely affect the value of his land. No such comment appears in the transcription that you have provided to us nor in your statement of facts. You advise that in the preparation of the minutes from which the transcription was obtained, the City attempted to set forth exactly what was on the taped recording of the Commission meeting, which evidenced what the Commission member's husband stated.
You also advise that you have no knowledge of whether the assessed value of the Commissioner's property would be affected by the granting of a special exception, but you guess that due to the distance between the two, the assessed value would not change. You also believe that unless the riverfront lots become predominantly zoned multi-family in the future, the market value of the riverfront lots will not increase should a special exception be granted on the subject lots. You advise that the City's comprehensive plan does not envision a change in the future use of the riverfront lots from commercial to residential.
The Code of Ethics for Public Officers and Employees provides in relevant part:
VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. 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 abstaining from 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 the minutes. [Section 112.3143(3)(a), Florida Statutes.]
VOTING CONFLICTS.--No appointed public officer shall participate in any matter which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain of a relative or business associate of the public officer, without first disclosing the nature of his interest in the matter. [Section 112.3143(4), Florida Statutes.]
Section 112.3143(3), Florida Statutes, prohibits the Commissioner from voting on any measure which inures to her special private gain or to the special private gain of her husband and requires that certain disclosures be made under these circumstances. In addition, Section 112.3143(4) prohibits the Commissioner from participating in any public matter which would inure to her special private gain or to the special private gain of her husband without first disclosing her conflict prior to her participation in the matter. For purposes of this section, the term "participation" has been defined at Section 112.3143(4)(c), Florida Statutes, to mean
any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction.
Whether the matter inures to the Commissioner's or her husband's special private gain is a question of whether she or he would stand to gain or lose as a direct outcome of the Planning and Zoning Commission's decision.
We previously have recognized that any gain or loss to a public officer resulting from a particular measure may be too remote and speculative to constitute "special gain." Thus, in CEO 86-44, we advised that a city council member was not prohibited from voting on a site plan for a shopping center located adjacent to the florist store he owned and operated. Similarly, in CEO 85-77, we found 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 matters relating to the use of the school district's property. In CEO 91-17, we found that a city council member was not prohibited from voting on the road alignment being considered where the member owned property abutting the road but would not be directly affected by the proposed configuration of roads. We noted that while it is perceived that property values along the street would be enhanced for commercial development, even if the property values did increase, the city council member's property would have to be rezoned for commercial usage. Under these circumstances, we concluded that any benefit to the city council member's property would be too remote and speculative to constitute "special gain." More recently, in CEO 93-4, we advised that Section 112.3143(3), Florida Statutes, would not be violated were a city commissioner to vote on rent increases at the City's mobile home park, where he proposed to build an r.v. park across the street from the city park. There, we found that assuming that the commissioner could charge higher rents at his "still to be built" park if the city increased the rent at the city-owned park was too remote and speculative to create a voting conflict.
Because there is no indication here that the Commissioner would be voting on a measure which inured either to her special private gain or to that of her husband, it is our opinion that no voting conflict of interest would exist were she to vote on the special zoning exception request, because any benefit to the Commissioner's and her husband's property would be too remote and speculative. Inasmuch as we have concluded that no special private gain would inure to the Commissioner or to her husband, then Section 112.3143(4) likewise is inapplicable under the circumstances.
Accordingly, we find that under the circumstances the Code of Ethics for Public Officers and Employees does not prohibit the Commissioner from voting on the special zoning exception request. Please note that our jurisdiction is limited to the Code of Ethics and does not extend to all of the grounds raised in the Petition for Disqualification. Therefore, our opinion should not be considered dispositive of the Petition.