CEO 90-56 -- July 27, 1990

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER OWNING INTEREST IN UNDEVELOPED

PROPERTY VOTING ON ADJACENT PUBLIC PARK, UTILITY

FACILITIES, AND COMPREHENSIVE PLAN

To: Irvin S. Cowie, County Attorney, Polk County (Bartow)

SUMMARY:

A county commissioner would not be prohibited by Section 112.3143(3), Florida Statutes, from voting on matters related to the development by the county of a regional park which adjoins undeveloped land in which the commissioner holds an ownership interest and which is proposed for residential development, to the extent that those matters would cause the park to be constructed. Under the circumstances presented, these measures would not inure to the "special gain" of the commissioner. However, the commissioner may be prohibited from voting on measures relating to the placement of individual facilities within the park, as the details of the placement of individual facilities within the park could have a much more direct negative or positive impact on the value of those portions of the land immediately adjacent to the park.

The commissioner would not be prohibited from voting on matters relating to the expansion or construction of county-owned utility facilities when he has interests in land, the development of which will be facilitated by the expansion of those utility facilities. Given the large number of customers expected to be served by the new regional facilities and the fact that the value of all developable property in the areas would be enhanced similarly, any benefit received by the commissioner would not constitute "special" gain.

The commissioner is not prohibited from voting on the adoption of the county's comprehensive land use plan because of his interests in developable property in the county. As the tracts in which the commissioner has an interest will receive designations similar to that of a great deal of other land located in the county and as all land in the county will be affected by the adoption of the comprehensive plan, any gain received by the commissioner would not constitute "special" gain. If a separate vote is taken relating to a portion of the plan that includes property in which the commissioner has an interest, he may be prohibited from voting on that portion of the plan.

QUESTION 1:

Is a county commissioner prohibited from voting on matters related to the development by the county of a regional park which adjoins undeveloped land in which the commissioner holds an ownership interest and which is proposed for residential development?

In your letter of inquiry you advise that Mr. Larry Libertore serves as a member of the Polk County Board of County Commissioners and that he is a partner in the proposed development of an approximately 400 acre tract of land which the owners intend to develop to contain a golf course and about 450 residences. You also advise that the County proposes to develop a 500 acre mixed-use regional park on land that it has leased from the State for that purpose.

A portion of the residential development tract has a common boundary with the park land, although there will be no direct access between the park and the private development. An undevelopable wetland several hundred yards in width on the County's side of the common boundary establishes a physical separation between the two properties. The entrance to the park will be more than one-half mile from the entrance to the private development.

As your concern is whether the creation of the park will have a significant effect on the value of the adjoining land different in degree or manner from other land in the area, you have asked a real estate appraiser who is familiar with the area involved to comment. The appraiser has advised that the park should create no specific positive benefit to the proposed development, since the development will contain its own recreational facilities, such as a golf course, tennis courts, pool, clubhouse, lakes, etc. In addition, he noted that the types of buyers for the anticipated upper price range homes are not likely to seek additional recreational facilities of the type found in a public county park. However, he advised that the park could have some negative effect on portions of the proposed development if certain intensive uses are located contiguous to or within view of the proposed residences. As examples of such uses, he lists ball fields, field lights, gun firing ranges, and parking lots.

The appraiser stated that the park could have some positive effect on the proposed development if the park land near the development is not intensively developed or used but becomes a natural wooded buffer area or wetlands, thereby providing an attractive adjacent area which would not be developed to some other less desirable use. He also stated that the park should have a positive general benefit to both land and improved property values within approximately five miles, but that this type of benefit is difficult to identify or measure. In conclusion, it is the appraiser's opinion at this time that the proposed park will have no particular significant or identifiable effect, either positive or negative, on the proposed development.

In regard to your question, Section 112.3143(3), Florida Statutes, 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 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.

This provision of the Code of Ethics for Public Officers and Employees prohibits the subject Commissioner from voting on any measure that inures to his special private gain.

We previously have advised that an official may be prohibited from voting on a measure that relates to property adjoining property in which he owns an interest, as the decision may affect the value of both parcels of property. See, for example, CEO 89-34, involving the rezoning of property adjacent to property owned by a city council member. We also have advised in CEO 77-129 that whether a measure inures to the special private gain of an officer or his principal will turn in part on the size of the class of persons who stand to benefit from the measure. Where the class of persons is large, a special gain will result only if there are circumstances unique to the officer or principal under which he stands to gain more than the other members of the class. Where the class of persons benefiting from the measure is extremely small, the possibility of special gain is much more likely.

Under the circumstances presented, we are of the opinion that the Commissioner would not be prohibited from voting on matters that would cause the park to be constructed, such as voting to award construction and maintenance contracts. Given the appraiser's evaluation of the impact of the establishment of the park on the value of property within approximately five miles of the park, it does not appear that issues relating to the establishment of the park would affect the value of the 400 acre tract to a more significant degree than they would affect the value of the numerous other parcels of property within the general area of the park.

On the other hand, as noted by the appraiser, the details of the placement of individual facilities within the park could have a much more direct negative or positive impact on the value of those portions of the 400 acre tract immediately adjacent to the park. Further, it appears that these issues would affect only the owners of property that adjoins the park, a much smaller class of persons. Although there may be placement decisions that would have no impact on adjoining portions of the tract, it appears that as a general matter, a number of measures relating to the placement of individual facilities within the park would impact the value of the tract in which the Commissioner has an interest to such a degree that he should abstain from voting on those issues.

Accordingly, we find that the subject Commissioner would not be prohibited from voting on matters that would cause the park to be constructed, such as the award of construction and maintenance contracts. However, it appears that the Commissioner may be prohibited from voting on many measures relating to the placement of individual facilities within the park. As we do not know at this time exactly what issues will arise in this regard, we suggest that the Commissioner abstain from voting on these types of issues. If a placement issue arises which the Commissioner believes would not affect the value of portions of the 400 acre tract either positively or negatively, he may seek another opinion.

QUESTION 2:

Is the subject county commissioner prohibited from voting on matters relating to the expansion or construction of county-owned utility facilities when he has interests in land, the development of which will be facilitated by the expansion of those utility facilities?

Under the circumstances described, this question is answered in the negative.

In your letter of inquiry you advise that the County owns and operates certain utility (water and sewer) facilities located throughout the County. The subject Commissioner has an interest in two parcels of land which are located within two designated Regional Utility Planning Areas. The first parcel, which is the 400 acre tract described in your first question, is located in a Planning Area of approximately 40 square miles. The second tract, consisting of 32 acres located on a major U.S. highway and designated for commercial development, is located in a Planning Area of approximately 105 square miles.

You advise that the location of the proposed utility facilities in the first Planning Area is not an issue because the facilities will be constructed at or very near the site of the existing facilities in that Area. Those facilities have been in their current location for many years, long before the Commissioner acquired an interest in the 400 acre tract.

You further advise that the second Planning Area currently is served by small, scattered water and sewer plants, but that it is planned that the area will be served by regional facilities. No location has been selected for the site of these new regional facilities yet. However, regardless of where the regional utility facilities are located within the Planning Area, sound utility planning will demand that they serve commercial development in the vicinity of the major highway on which the Commissioner's 32 acre parcel is located. Finally, you advise that in both Planning Areas it is expected that the regional facilities ultimately will have large service areas with thousands of customers.

We are of the opinion that matters relating to the location or construction of regional utility facilities that would service either of the tracts of land in which the Commissioner owns an interest would not inure to the special gain of the Commissioner. Given the large number of customers expected to be served by the new regional facilities and the fact that the value of all developable property in the areas would be enhanced similarly, we do not believe that any benefit received by the Commissioner would constitute "special" gain.

Accordingly, we find that the subject Commissioner is not prohibited from voting on matters relating to the location or construction of regional utility facilities that would service either of the tracts of land in which he owns an interest.

QUESTION 3:

Is the subject county commissioner prohibited from voting on the adoption of the county's comprehensive land use plan because of his interests in developable property in the county?

Under the circumstances presented, this question is answered in the negative.

You advise that the Local Government Comprehensive Planning and Land Development Regulation Act (Part II, Chapter 163, Florida Statutes) requires every local government to prepare and adopt a comprehensive plan. Section 163.3171(2) specifies that non-charter counties exercise authority under the Act for the total unincorporated area under their jurisdiction. The comprehensive plan includes a capital improvement element; an intergovernmental coordination element; a future land use plan element; a traffic circulation element; a general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element (infrastructure element); and a conservation element. The primary purpose of the plan is to ensure that growth occurs in an orderly manner in areas where there are adequate capital facilities to accommodate such growth and to protect and promote a high quality of life.

A key provision of the Act requires that all development must be consistent with the adopted comprehensive plan. In addition, the Act prohibits a local government from issuing a development order if the capital improvements necessary to serve that development do not exist, if their existence is not imminent, or if the necessary improvements will not be provided by the developer. This requirement is known as "concurrency."

You further advise that it is likely the adoption of a comprehensive plan will affect property values throughout the County, with the value of some property being enhanced and the value of other property being diminished. The future land use element of the plan is particularly crucial in this regard. In the case of the County's plan, the land use element designates land as either "urban," "rural," or "transitional." Development densities are radically different from area to area. Commercial and industrial classifications are permitted throughout these areas and their location generally is determined by reference to certain enumerated criteria. For example, commercial areas are required to be located at the intersections of major roads and must service defined markets.

You advise that the 400 acre tract in which the Commissioner has an interest has been included in the draft plan prepared by staff and approved by a citizens advisory committee as being within an Urban Development Area. Urban Development Areas and Urban Growth Areas essentially are those areas which currently are served by water and sewer utilities or will be served within five to ten years. There are 192,765 acres of Urban Development and Urban Growth Areas. Of this total, approximately 55,945 acres are vacant and otherwise unconstrained for development. The 400 acre parcel of land further has been overlain with an Urban Low Density classification, which permits up to five dwelling units per acre. The total amount of land classified as Urban Low Density located within Urban Areas is 48,985 acres.

You advise that the 32 acre parcel is located in an Urban Growth Area and partially is overlain with a Community Activity Center designation. This is a commercial land use designation that permits retail shopping centers. The parcel meets all the locational criteria contained in the plan. On a County-wide basis, the plan designates 1,165 acres of vacant and unconstrained land as commercial, not including business parks, industrial classifications, and certain other minor commercial classifications.

In a previous opinion, CEO 87-18, we advised that a city-county planning commissioner could vote on a proposed amendment to a comprehensive plan that involved property in which the commissioner had an interest. There, the plan amendment involved 97,000 acres and the commissioner's property represented 300 of the 29,000 acres to be redesignated. Under those circumstances, we concluded that any gain resulting from the plan amendment would not constitute "special" gain.

Similarly, here the tracts in which the Commissioner has an interest will receive designations similar to that of a great deal of other land located in the unincorporated area of the County. Moreover, all land in the County will be affected by the adoption of the comprehensive plan. Under these circumstances we conclude that any gain received by the Commissioner would not constitute "special" gain within the contemplation of Section 112.3143(3).

Accordingly, we find that the subject Commissioner is not prohibited from voting on the adoption of the County's comprehensive land use plan because of his interests in developable property in the County. As we noted in CEO 87-18, it is possible that separate votes may be taken on various portions of the plan, rather than on the entire proposal as currently written. If this occurs and one of the tracts in which the Commissioner owns an interest would be affected as part of that portion of the plan, he may be prohibited from voting on that portion of the plan. In other words, if the effect of the amendment would be to change the land use designation of one of his properties and the ratio of the size of that parcel to the area of land considered under the measure increases, the measure may result in "special" gain to the Commissioner.