CEO 86-35 -- May 15, 1986

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYED BY DEVELOPER VOTING ON IMPACT FEE ORDINANCE

To: Mr. H. Hamilton Rice, Jr., County Attorney, Manatee County

SUMMARY:

A county commissioner who is vice president and a shareholder of a development company which is developing a large project within the county, is not prohibited by Section 112.3143, Florida Statutes, from voting on an impact fee ordinance. As the proposed ordinance is potentially applicable to all development within the jurisdiction of the county and as the commissioner's development would not be affected differently in degree or manner than any other comparable development in the county, any gain or loss which the commissioner or his employer might receive as a result of the proposed ordinance would not be "special" within the contemplation of the voting conflicts law.

QUESTION:

Is a county commissioner, who is vice president and a shareholder of a development company which is developing a large project within the county, prohibited by Section 112.3143, Florida Statutes, from voting on an impact fee ordinance?

Your question is answered in the negative.

Through your letter of inquiry and telephone conversations with our staff, we have been advised that Mr. Lloyd Hagaman serves as a member of the Manatee County Board of County Commissioners. The Commissioner also is vice president and a shareholder of a development company which is doing business in the County. The developer currently is involved in the largest single project under construction within the County. However, four other developments large enough to constitute developments of regional impact are being planned within the County. In addition, there currently are approximately twelve projects in various stages which would involve the construction of 800-999 units. The County presently processes about 150-200 projects each year ranging in size from ten units up to developments of regional impact, for which the threshold is 1,000 units.

You also advise that the County is considering the adoption of an impact fee ordinance. A series of public workshops and public hearings with the Planning Commission and the Board of County Commissioners are being conducted, leading to the proposed adoption of the ordinance. As currently proposed, impact fees would be levied when a development permit is issued by the County, with provisions for crediting certain dedications or other contributions made by the developer to the County for transportation, parks and recreation, emergency medical services, and solid waste disposal. The proposed ordinance would be applicable to new stages of the Commissioner's development and not to its existing units. Further, there is no reason to believe that the Commissioner's development would be affected differently in degree or in manner by the proposed ordinance from any other comparable development in the County.

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 (1985).]

This provision prohibits a county commissioner from voting on any measure which inures to his special private gain or to the special gain of a principal by whom he is retained. We have advised that the requirements of this provision do not turn on the nature of the official's vote -- whether it is for or against the measure -- but rather on whether he or his principal's interest is such that he or his principal would stand to gain or lose as a direct outcome of the decision. See CEO 84-116, CEO 83-50, and CEO 76-24.

In addition, we have advised that whether a measure inures to the "special" gain of an officer will turn in part on the size of the class of persons who stand to benefit from the measure. See CEO 77-129. In that opinion we advised that where the class of persons affected by a particular measure is large, a "special" gain will result only if there are circumstances unique to the officer or principal under which he or the principal stands to gain more than the other members of the class. In other words, where governmental action is through the enactment of legislation, rules, or ordinances of general applicability, the pertinent question is whether there are particular circumstances or aspects of the enactment under which the official's interests are impacted to a significantly greater (or lesser) degree than other members of the affected class.

Even though an enactment on its face potentially would apply to a large class of persons, it is possible that in practice the number of persons affected would be limited. However, that is not the case here. The proposed impact fee ordinance would apply to any development intended to permit a use of land or a structure which will allow an increase in the number of dwelling units or floor area or intended to change the use of land or a structure in a manner that will increase the generation of vehicular traffic or of solid waste. Therefore, the ordinance will apply to a full range of development activities, from developments of regional impact down to the addition of a bedroom onto an existing house.

Nor does it appear that the ordinance would affect the interests of a large developer to a significantly greater degree than it would affect a smaller developer. The proposed ordinance will contain a fee schedule which will be applicable for most types of development. Impact fees on the fee schedule will be standardized on a per bedroom basis for housing, on a per 100 square feet basis for most commercial development, on a per room basis for hotels and motels, etc. Thus, the impact fee for a three-bedroom, single family detached house in a suburban district will be the same for a large or a small developer. Similarly, the impact fee per 100 square feet for a convenience store in an urban district will be standard, according to the fee schedule. Therefore, although a large developer generally will be obligated to pay more to the County than a smaller developer in terms of total impact fees, there will be no competitive advantage or disadvantage because the amount of impact fee on a per unit basis for each identical type of unit will be the same.

It also does not appear that setting the amount of fees would inure to the "special" gain of the Commissioner or his employer. Setting lower fees would benefit all developers to the same extent, as well as those persons who would purchase improved property at a lower cost because of the lower fees. In this respect, the impact fee ordinance would be similar to the County's action in setting millage rates for ad valorem taxation. Every taxpayer would stand to gain from reduced millage rates, but we have not heard it suggested that no commissioner should vote on millage rates because he or she would stand to gain if taxes are lower and lose if taxes are higher.

Finally, recently enacted growth management legislation provides:

Effective July 1, 1986, a local government shall not include, as a development order condition for a development of regional impact, any requirement that a developer contribute or pay for land acquisition or construction or expansion of public facilities or portions thereof unless the local government has enacted a local ordinance which requires other development not subject to this section to contribute its proportionate share of the funds, land, or public facilities necessary to accommodate any impacts having a rational nexus to the proposed development, and the need to construct new facilities or add to the present system of public facilities must be reasonably attributable to the proposed development. [Section 380.06(15)(e)1, Florida Statutes (1985).]

This provision appears to prohibit the County from imposing certain conditions in development orders on developments of regional impact (DRI's) issued after July 1, 1986, unless the County has enacted a generally applicable impact fee ordinance. In a telephone conversation with our staff, an Assistant County Attorney advised that to the best of her knowledge the original development order for the Commission's development has been in effect for that development, that any new development by that developer of sufficient size would require a new DRI application, and that the developer does not have any new DRI applications pending. It has been suggested that the proposed impact fee ordinance could inure to the Commissioner's special gain if the ordinance is not adopted and if Section 380.06(15)(e)1 were to prohibit the imposition of impact fees on the portion of the development which remains undeveloped, or if the impact fee ordinance imposes less stringent conditions than the existing conditions on the development. In our view, these lines of reasoning require the resolution of uncertain legal questions and are too speculative under the circumstances presented to enable us to conclude that the proposed ordinance would inure to the special gain of the Commissioner or of the development company of which he is an officer and a shareholder.

Accordingly, we find that the subject County Commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting on the proposed impact fee ordinance.