CEO 85-62 -- September 3, 1985

VOTING CONFLICT OF INTEREST

CITY COUNCIL MEMBER VOTING ON ZONING OF PROPERTY IN REDEVELOPMENT AREA WITHIN WHICH HIS CORPORATION OWNS PROPERTY

To: (Name withheld at the person's request.)

SUMMARY:

A city council member is not prohibited by Section 112.3143, Florida Statutes, from voting on an ordinance which would provide for site-specific zoning for a redevelopment area, where the council member's corporation owns a one-acre parcel of property within the several square miles included in the redevelopment area. Nor would the council member be prohibited from voting on all rezoning applications for property within the area, although he may be prohibited from voting on matters affecting property located near the corporation's property.

QUESTION:

Are you, a city council member, prohibited by Section 112.3143, Florida Statutes, from voting on the rezoning of property within a redevelopment area, where a corporation in which you own an interest owns a parcel of land within the redevelopment area?

Your question generally is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you serve as a member of the City Council of the City of Fort Walton Beach and that you own a one-third interest in a corporation which owns a parcel of property in the City's Downtown Redevelopment Area. You have advised that the Redevelopment Area is several miles long and approximately one mile wide, and that the parcel of property owned by the corporation is approximately one acre in size, with a house currently situated on the property.

In addition, you advise that the City is in the process of enacting an ordinance which would provide for site-specific zoning for the redevelopment area. This will allow the City the flexibility to rezone individual sites on the request of a developer in relation to the comprehensive plan for the downtown area.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 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. 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 (Supp. 1984).]

This provision prohibits you from voting on any measure which inures to your special private gain or which inures to the special gain of a principal by whom you are retained. However, we do not consider that a corporate stockholder is retained by the corporation merely by virtue of his ownership of that stock.

We are of the opinion that you are not prohibited from voting on the City ordinance providing for site-specific zoning for the redevelopment area. Although your corporation owns property within the redevelopment area, the corporation's interest in the redevelopment area involves only one acre out of the several square miles included in the redevelopment area. Therefore, the size of the class of persons affected by the rezoning measure would be large enough that we can conclude that any gain you might receive would not constitute "special gain." Similar examples of this interpretation are found in CEO 85-5, CEO 84-80, and CEO 77-129.

The remaining question is whether you are required to abstain from requests by developers for the rezoning of specific parcels located in the redevelopment area. Because the new zoning ordinance will require site-specific zoning, the rezoning of other properties within the area will not directly affect the zoning of the property owned by your corporation. In CEO 79-66, we advised that a board of adjustment member would not have a voting conflict of interest in voting on a matter affecting property located approximately one-half mile from his residence. Similarly, we are of the opinion that generally the rezoning of property located at a distance from that owned by your corporation would have such a speculative effect on the value of that property that the rezoning measure would not inure to your gain. Under those circumstances you would not be prohibited from voting on the rezoning measure. However, the rezoning of property located nearby may have a more direct impact on the value of the corporation's property and might require you to abstain from voting. In the event that such a situation arises, we suggest that you seek another opinion in order to allow us to evaluate the specific circumstances of the rezoning proposal and its impact on the corporation's property.

Accordingly, we find that you are not prohibited by Section 112.3143, Florida Statutes, from voting on a site-specific zoning ordinance for the redevelopment area and that you are not prohibited from voting on all rezoning applications for property located within the redevelopment area.