CEO 92-20 -- April 24, 1992

VOTING CONFLICT OF INTEREST

CITY MAYOR VOTING ON REZONING OF ISLAND ON WHICH HIS RESIDENCE IS LOCATED AND ON MATTERS CONCERNING A LAND-USE LAWSUIT PARTIALLY FUNDED BY HIS WIFE

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

SUMMARY:

A city mayor would not be prohibited by the voting conflicts law, Section 112.3143, Florida Statutes, from voting on land-use measures which would affect the allowable density of development on an island on which the mayor resides. Any gain to the value of the mayor's condominium unit occasioned by the measures would not be "special" within the meaning of the voting conflicts law.

Whether the mayor would be prohibited from voting on measures regarding the city's handling of a lawsuit where his wife is a contributor to the attorney's fees of the party adverse to the city would depend on the exact factual circumstances surrounding such a vote. CEO 90-71 is referenced.

QUESTION 1:

Are you, the Mayor of the City of Miami Beach and a member of the City Commission, prohibited from voting on amendments to a comprehensive plan proposed for the City which concern the density of development which would be allowed on an island on which you reside?

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

By your letter of inquiry, telephone conversation between the City Attorney's office and our staff, and telephone conversation between you and our staff, we are advised that you serve as the Mayor and a voting City Commission member of the City of Miami Beach, having been elected in November 1991. In October 1989, prior to your election, the City adopted its comprehensive plan. After adoption of the plan, a group of persons, including five named petitioners, brought an action before a hearing officer challenging the City's adoption of the plan. Neither you nor your wife are named petitioners. You live in the Venetian Islands, on Belle Isle, and are a member of one of the homeowners associations that is supporting the petitioners. As an association member or otherwise, you could not be required to contribute attorney's fees for the petitioners' representation. Belle Isle is connected to the mainland by an East/West causeway which splits the island north and south. In its action before the hearing officer, the petitioners argued, inter alia, that the City did not appropriately consider safety factors such as hurricane evacuation and thus that the comprehensive plan was in error in not setting a lower development density for the Venetian Islands. The hearing officer ruled in favor of the City's adoption of the plan, and the petitioners appealed to the Florida Third District Court of Appeal. The Court ruled against the City, holding that the City did not provide proper public notice of the plan prior to its adoption. The City is seeking to appeal the Court's decision to the Florida Supreme Court.

As a candidate for Mayor, you made statements in support of decreasing the allowable building or development density on Belle Island (downzoning). In addition, your wife made a voluntary contribution of $200 to the petitioners for their attorney's fees.

You foresee forthcoming votes of the City Commission concerning whether to drop, pursue, or settle the litigation with the petitioners, which could conceivably cause the reimbursement of your wife's attorney-fee contribution to them. It is also likely that the City Commission will decide a proposed downzoning of Belle Isle to a "townhomes" density, affecting only the North side of Belle Isle since the South side, where you reside, is already developed with high-rise condominiums; this measure was initiated through a petition, has been approved by the City's planning board, and will come before the City Commission for a final vote. Further, the Commission must vote on adoption of a new comprehensive plan for the entire City, which likely will contain amendments concerning development density on Belle Isle.

Your inquiry regarding the voting conflicts law arises, at least in part, from your concerns that downzoning might make your property more valuable by limiting the number of Venetian Island condominium units available and therefore driving up the price through the operation of market forces, although you state that you do not believe that downzoning necessarily will increase the value of your property. Also, your unit has a northerly view which could be spoiled or impeded, thus reducing your property values, by the erection of highrise development to the north of your unit. This likely will occur if the City Commission fails to downzone the property north of your unit, although you state that there is enough distance and angles or points of view looking north from your property such that you doubt that the erection of such highrise development to your north would affect the appraised value of your property. Finally, higher density zoning means more people occupying the Islands, with resultant greater hurricane evacuation problems, which could translate into lower property values. (The City Attorney's office represents that there was testimony at the hearing challenging the comprehensive plan to this effect.)

Islands in the Venetian chain other than Belle Isle also would be susceptible to lower property values by virtue of the hurricane evacuation problem. There are approximately 1,000 condominium units on Belle Isle, and approximately one-half of the 1,000 units have a northerly view which could be impeded by highrise construction to their north, although you state that you cannot say with certainty that these figures are correct. You maintain that one of your major concerns is that of hurricane evacuation safety, rather than that of property values, regarding Belle Isle land-use issues.

The voting conflicts law provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure 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, 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.]

Under this provision, you must abstain from voting upon a measure that inures to your special private gain.

While any gain or loss to the value of your condominium unit caused by measures changing the development density allowed for the island on which your unit is located might be remote and speculative under particular definite factual scenarios, we cannot, under the facts presented to us for review, make such a determination in the context of this opinion.

However, we have found gain not to be "special" when the class of persons benefited or affected by a measure was of sufficient size. See, for example, CEO 90-71 and our opinions cited therein. In view of the number of units represented here as potentially affected by zoning changes applicable to the island (approximately 1,000 units and approximately 500 north-facing units that would appear to be affected in the same manner as your unit), assuming that most of the units are owned by different individuals, couples, or entities, any gain to you nevertheless would not be considered "special."

Accordingly, we find that under the circumstances presented the voting conflicts law does not prohibit you from voting on amendments to a comprehensive plan proposed for the City which concern the density of development which would be allowed on an island on which you reside.

QUESTION 2:

Would you be prohibited from voting on a measure, generated by petition and approved by the City's planning board, which would downzone Belle Island to a "townhomes" classification?

We are persuaded that our response to the first question herein is equally applicable to this question. Your question is answered, accordingly, in the negative under the circumstances presented here.

QUESTION 3:

Would you be prohibited from voting on matters affecting the City's lawsuit with the petitioners, such as whether to settle the suit or whether to pursue litigation further, where the effect of such a vote would be to downzone Belle Isle?

Our response to this question is the same as that provided in response to Questions 1 and 2 herein. Accordingly, your question is answered in the negative, under the circumstances presented.

Further, should you be called upon to vote on matters which could result in possible "reimbursement" of your wife's contribution toward attorney's fees made to the petitioners, you should request another opinion, as your wife is your "relative," as defined in Section 112.312(21), Florida Statutes, for purposes of the voting conflicts law.