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HomeMy WebLinkAboutVII (A2) First Reading of Ordinance No. 98-04, Case #AR-97-07-07 Grafton Rezoning Agenda 1-20-98 Item VII A2 "CENTER OP GOOD LII?,NG-l'It1DP;OP WISS'T ORANGE." MAYOR•CMMISSIONF.R S.SCOTT VANDRRGRIEI' oyOc % CITY OF OCOEE DNNNYIIDWITI. w - - 150 N. LAK65IIORE DRIVE SC O r ANDERSON u d SCOT1A GLASS p OCOEE I1.ORInn 4761-2258 NANCY J PARKER p�, V (407)656-2322 � t 1!LLIS SI IAPII20 OF Gnu STAFF REPORT DATE: January 14, 1998 TO: The Honorable Mayor and City Commissioners FROM: Abra E. Home, AICP, Senior Planner THROUGH: Russell B. Wagner, AICP, Director of Planning (k.) SUBJECT: Grafton Rezoning Ordinance (Case Number AR-97-07-07) ISSUE: Should the Honorable Mayor and City Commissioners approve Ordinance Number 98-04 rezoning the Grafton property from A-1, Citrus Rural District, and RCE, Rural Country Estate, (Orange County), to R-1A, Single Family Dwelling District (Ocoee)? BACKGROUND: The requested rezoning is being considered simultaneously with an annexation petition. The subject property is located on the southeast corner of Fuller's Cross Road and Ocoee-Apopka Road. The 98 acre parcel contains a single family house and six accessory use buildings (a barn, multi-purpose building, pump house, storage building, shed, green house, and vehicle storage building). The existing use is a tree farm and the Grafton's anticipate selling the property for development as a single family subdivision, if the requested R-IA rezoning is approved. This quadrant of the Joint Planning Area is largely used for agriculture but Staff anticipates that properties in this area will begin to annex and develop over the next five years as the Western Beltway construction gets underway. Most of the surrounding County land is zoned A-1 and used for agricultural purposes. One notable exception is the adjacent Orange County single family subdivision on the southwest corner of Fuller's Cross Road and Ocoee-Apopka Road, Crown Point Woods, which is zoned RCE in the County. Adjacent City parcels are zoned R-1A and have not been developed yet. The Honorable Mayor and City Commissioners January 14, 1997 Page 2 DISCUSSION: The subject property is designated Low Density Residential (< 4 du/acre) on the City Future Land Use Map and Joint Planning Area Map. The Comprehensive Plan lists several possible zoning districts that are hypothetically consistent with each future land use designation, but the City has the discretion to select the most appropriate zoning for an individual property when evaluating a rezoning request. In this case, the range of potential zoning classifications that are theoretically consistent with the Low Density Residential future land use designation includes eight zoning districts: A-1; A-2; RCE-1; RCE-2; R-1AAA; R-1AA; R-1A; and R-1. Although single family homes are allowed in each of these zoning districts, single family subdivisions are more appropriately located in four of these zoning districts: R-1AAA; R-1AA; R-1A; and R-1. The applicant has requested an Ocoee zoning classification of R-1A, Single Family Dwelling District which would be consistent with the above referenced land use designations. Staff has determined that the requested R-1A zoning classification is the most appropriate zoning classification for the subject property since it is consistent with Ocoee's: (1) Comprehensive Plan; (2) Future Land Use Map; (3) Land Development Code; (4) Joint Planning Area (JPA) Agreement with Orange County; and (5) surrounding land uses and zoning classifications. More specifically, the request is consistent with the following goals, objectives, and policies of the Future Land Use Element of the Comprehensive Plan: (a) Goal 1; (b) Objective 1; (c) Policy 1.1; (d) Policy 1.15; (e) Policy 1.16; (f) Objective 2; and (e) Policy 2.4. PLANNING AND ZONING COMMISSION RECOMMENDATION: On January 13, 1998, the Planning and Zoning Commission held a de novo public hearing regarding the requested R-1A zoning. The Planning and Zoning Commission and citizens stated their concerns and asked questions about rezoning issues during the discussion of the Annexation petition. Mr. Smith, the Crown Point Woods Homeowner's Association President, stated that he had the same concerns as discussed during the Annexation public hearing. Based upon the above discussions, the Planning and Zoning Commission voted unanimously to recommend approval of the requested rezoning to R-1A, as recommended by Staff. STAFF RECOMMENDATION: The Planning Department recommends that the Honorable Mayor and City Commissioners approve Ordinance Number 98-04 to enact the requested rezoning to R-1A, Single Family Dwelling District, upon finding that the application is consistent with: (1) the Ocoee Comprehensive Plan; (2) the Future Land Use Map; (3) the Ocoee Land Development Code; and (4) the requirements of the JPA Agreement. AEH/csa Attachments. Location Map H:\ALL_DATA\CAPDFILE\Staff Reports\CC SR\SR98005.Doc Grafton Annexation located on the southeast corner of Ocoee-Apopka Road and Fuller's Cross Road R-1AA l - i ` C-2 C-2 • I r „ ) R-1A j / I I R—lA L j i _ G �/ A-1 (OC) 1I j �� 1 —__ // ,\ _ % tillef- t i FIT-- i 1 --i tit i _ _„_,_ xa ✓ £ 1 Rwarm omm y m :tit i r: -- d G1� i y ie.„,,,,,„,„,„, � - �_ A—I_ _ ____- ;� — • \__ Lam.._ (OC) - �a -r- �y — — - _.._.. A_1 -7F1 .. ���--r c -_ Legend: Case No.: AR-97-07-07 s. Joint Planning Area Boundary N /�/ Ocoee City Limits A a 1/4 1/2 3/4 1 Mile ORDINANCE NO. 98-04 CASE NO. AR-97-07-07: GRAFTON PARTNERSHIP AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, CHANGING THE ZONING CLASSIFICATION FROM ORANGE COUNTY, A-1, CITRUS RURAL DISTRICT, AND RCE, RURAL COUNTRY ESTATE TO OCOEE ZONING, ON CERTAIN REAL PROPERTY CONTAINING APPROXIMATELY 97.93 ACRES LOCATED SOUTHEAST CORNER OF OCOEE-APOKA ROAD AND FULLER'S CROSS ROAD PURSUANT TO THE APPLICATION SUBMITTED BY THE PROPERTY OWNERS; FINDING SUCH ZONING TO BE CONSISTENT WITH THE OCOEE COMPREHENSIVE PLAN, THE OCOEE CITY CODE, AND THE JOINT PLANNING AREA AGREEMENT; PROVIDING FOR AND AUTHORIZING THE REVISION OF THE OFFICIAL CITY ZONING MAP; REPEALING INCONSISTENT ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS. the City Commission of the City of Ocoee, Florida, has as of the date of adoption of this Ordinance, annexed into the corporate limits of the City of Ocoee, Florida certain real properly now located in the City of Ocoee, Orange County, Florida as hereinafter described: and WHEREAS, the owner or owners (the "Applicant") of certain real property located within the corporate limits of the City of Ocoee. Florida. as hereinafter described. have submitted an application to the City Commission to rezone and establish an initial zoning classification for said real property of Ocoee, R-1A, Single Family Dwelling District (the "Initial Zoning"); and WHEREAS, pursuant to Section 5-9(3) of Article V of Chapter 180 of the Code of Ordinances of the City of Ocoee (the "Ocoee City Code"), the Planning Director has reviewed said application and determined that the Initial Zoning requested by the Applicant is consistent with the 1991 City of Ocoee Comprehensive Plan as set forth in Ordinance #91-28. adopted September 18, 1991, as amended (the "Ocoee Comprehensive Plan"); and WHEREAS, on February 11. 1994. Orange County and the City of Ocoee entered into a Joint Planning Area Agreement which affects the future land use of the real property hereinafter described; and WHEREAS, pursuant to the provisions of Section 6(B) of the Joint Planning Area Agreement, the City has the authority to establish an initial zoning for the lands herein described and to immediately exercise municipal jurisdiction over such lands for the purposes of Part II of Chapter 163, Florida Statutes; and WHEREAS, said Initial Zoning application was scheduled for study and recommendation by the Planning and Zoning Commission of the City of Ocoee, Florida (the "Planning and Zoning Commission"); and WHEREAS, the Planning and Zoning Commission has held a public hearing and reviewed said Initial Zoning application for consistency with the Ocoee Comprehensive Plan and the Joint Planning Area Agreement and determined that the Initial Zoning requested by the Applicant is consistent with the Ocoee Comprehensive Plan and the Joint Planning Area Agreement and is in the best interest of the City and has recommended to the Ocoee City Commission that the zoning classification of said real property be "Ocoee, R-1A, Single Family Dwelling District." as requested by the Applicant, and that the Ocoee City Commission find that the Initial Zoning requested by the Applicant is consistent with the Ocoee Comprehensive Plan and the Joint Planning Area Agreement: and WHEREAS, the Ocoee City Commission has held a de novo public hearing with official notice thereof and with respect to proposed Initial Zoning of said real property; and WHEREAS, this Ordinance has been considered by the Ocoee City Commission in accordance with the procedures set forth in Section 166.041 (3)(a), Florida Statutes. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. The City Commission of the City of Ocoee, Florida has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida, Chapters 163 and 166. Florida Statutes. SECTION 2 The zoning classification, as defined in the Ocoee City Code, of the following described parcel of land containing approximately 97.93 acres located within the corporate limits of the City of Ocoee. Florida, is hereby changed from "Orange County, A-1. Citrus Rural District, and RCE, Rural Country Estate' to "Ocoee, R-1A, Single Family Dwelling Distnct". SEE EXHIBIT "A" (METES AND BOUNDS LEGAL DESCRIPTION) ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. SECTION 3. A map of said land herein described which clearly shows the area of Initial Zoning is attached hereto as EXHIBIT "B" and by this reference is made a part hereof. SECTION 4. The City Commission of the City of Ocoee, Florida. hereby finds the Initial Zoning of the lands described in this Ordinance to be consistent with the Ocoee Comprehensive Plan and the Joint Planning Area Agreement. SECTION 5. The City Clerk is hereby authorized and directed to revise the Official Zoning Map of the City of Ocoee in order to incorporate the Initial Zoning amendment enacted by this Ordinance and the Mayor and City Clerk are hereby authorized to execute said revised Official Zoning Map in accordance with the provisions of Section 5-1(G) of Article V of Chapter 180 of the Ocoee City Code. SECTION 6. All ordinances or parts of ordinances in conflict herewith are hereby repealed and rescinded. SECTION 7 If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION 8 Fffective Date. This Ordinance shall take effect immediately upon passage and adoption. PASSED AND ADOPTED this day of , 1998. ATTEST. APPROVED: CITY OF OCOEE, FLORIDA Marian Green. Deputy City Clerk S. Scott Vandergrift, Mayor (SEAL) ADVERTISED Thursday. January 22, 1998 READ FIRST TIME January 20, 1998 READ SECOND TIME AND ADOPTED Under Agenda Item No. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. APPROVED AS TO FORM AND LEGALITY this day of , 1998. FOLEY & LARDNER By: City Attorney CALL DATAAHPDFILEANX-REZACTIVEGRAFTONUDVSORD3 WPD Sri A CF CEEC41P¶CN "� : NOT A 3CUNOAR, SqVE'! 23 1 1 aot :weanat , _ 7ESC:7IF';CN ''ear.araa :worn Range '3 :eat. :mow :aunty. lance aorta., -a arowc a. too-3a 3.3 araaana :or lance nail' 3132:3:31' oral -23:0 oft ar :can me Cm aortnrnv-enr-11--a• no at :Jana 3 are laic -a -re.. an 00 • n. Not a y m. lo _act no ar art rant j 99 v 3n, a. CCO.SO ‘e•pc Tonto area 1'33163 rfraot 'et 47 21 'owe 'arcs roman aot 'a nmole vac South no tirr • s na "JawC.t tat - am .. :ramose 9.c tlen 19:1732 :ass :nrm,.nq i..-.. :env. -tan r rsr�.e. n. {�.y.al 'our tau• �mre ar -.vmnmq. Exhibit A Graftcn Annexat icn Icat ed on the scutheas t ccrner of Cc:ea-Apopka Reed aid Fuller's Cress Rccd r— d-L ICCI R-LA f— II IC 1 R-... r` - 1 a-L tcci 1 L - - E' H _ ! - 1 i- — __�_ t.- ICC; i -�_ 1 1. �12_L -- — _ _ _ = - ___—; — l ___, — _ = = -C, — i—__ — —_ Th Lecend: ccse No : A:Z-37-07-07 i :Olt?Icnninc Are: ccurcc , N /" Ccsee Crf Emus A /a /: 2/L Exhibit 8 1I The Orlando Sentinel GC HEARING OCOEE CONSIDER Of PU R TON OF PROPOSED INITIAL ION- AN Dail INO ORDINANCE NO. 9404 OF y INITIAL ZONING PROPOSED aCASNO 1W a)A:Gnlpn NOTICE IS HEREBY OWEN gneuen1 0 Sealant 1BB.041,Ronda EtWlee. and SEotone 1.10 and SE Gaon ,tate of jfloriaa Is s Land DMMpm IeaxCWe.M on Fq ^'M 9.1t x):IBpm,uee COUNTY OF ORANGE crr..w OF 'Il s'th• Frei CITY COMMISSI N ma IMa a PUBLIC HEAPING at the CNy eS a ONon I CrembereOozy.H,/513 TOM Lakeshore Ores. ' Before the undersigned authority personally appeared De71j Se Lf the manes o. ce the see- of YbpM'Ia N. .oho on oath says g pnrn.nv: bil that heishe is the Legal Advertising Representative of The Orlando Sentinel, a dailyAN ORDINANCE OF THE CITY OF newspaper published at 0 Rl AN DO AN OROCOEE,FLORIDA,CHANGING THE In ZONING CLASSIFICATION FROM ORANGF Count , Florida: ORANGE COUNTY.RI,CITRUS RU- RAL DISTRICT. MN) RCE. RURAL I that the attached coot/of advertisement, being a C TTY OF Of OFF NOT COUNTRY EST,ATENGLE DISTRICT, in the matter of OR Q. 9R—ft Ll DWELLING DISTRICT,ON CERTAIN REAL PROPERTY CONTAINING AP. in the ORANF,r PROpMATELYPUGACRESLOCAT- COUR. ED SOUTHEAST CORNER OF was published in said newspaper in the Issue: of ❑1./22/9 A OCDEE.APOPNA ROAD AND FULL. ENS CROSS ROAD PURSUANT TO THE APPLICATION SUBMITTED BY i THE PROPERTY OMENS;FINDING SUCH ZONING TO BE CONSISTENT WITH Affiant further says that the said Orlando Sentinel is a newspaper published at PAN.THE OCOEE CITY CODE,MID I PLAN. 00OEE CRY AREA A AGREE. (14 I N 11 MOMPLANNING FOR ANDRAU- 0 R R in Florida,sid • THOR PROVIDINGHEREVISIONO AND HE AN(nf County, a, TNOc'NOTYEZONINGI OF THE OEFlC4L CITY TM RE- and that the said newspaper has heretofore been continuouslyCounty, Florida.published in PEALING INCONSISTENT EVER saltl ORANI.F ABNCTY' PROVIDING FOR FOR SEVER. I each Week Day and has been entered as second-class mail matter at the post AEFFECTT1 E PROVIDINGDAE m office in OR1 ANDO in said The ORA NGF County, Florida, F* �"mesiCn°"".,dmb for a period of one year next preceding the first publication of the attached n.�Shall be advised Pet:deem n.acesswy.Myt.Nav is copy of advertisement: and affiant further says that heishe has neither paid °bant°^a any + ..a of ued WYK neenngs Mail nor promised any person. firm or corporation any discount. rebate, menn continued awing the hear, ng commission or refund for the purpose of curing this adveT em nt for nd eye further�etl�:cing hose publication in the said newspaper. Tu,t9w parties hmayeard woes, 9 the PProposea Oral :and be�A ry of The Dosed Ominence �acedi The foregoing Instrument was acknowledged before me this 22 dayof ice. be NU e. snow Genie office.Aso North Uwe. January 19 98 . by_Denise se Little _ ant. and 5. 0 p.m.. noun Mondayof BCD ecpUeal, p,. y per wro is personally known to me and w/ryhg�a)d take 3r7 oat( `M",°,e�',M lll egal holidays. Pe^ / ` ,l A-4T _/ L nl..r .madare record unng alti 'Imwndaemonn ll M tee W:Wee may mad ensure , / theft verbatim nixed d the la and (SEAL) �_\ r -. /. ?:S many NA I°wesNteCe111i- peel To be based. Persons witch ew N WIe. CI NeMFOC�ieavO b Gem. wmact the City Cei*a Of,ynoun pSaMYrn N tie meting al e0)1655 " JEAN GRAFTON, crib CLERK. CITY OF OCOEE COR192432s Agenda 1-20-98 ` Item VI1 B FOLEY & LARDNER CHICAGO POST OFFICE BOX 2193 SAN DIEGO JACKSONVILLE ORLANDO. FLORIDA 32802-2193 SAN FRANCISCO LOS ANGELES III NORTH ORANGE AVENUE. SUITE 1600 TALLAHASSEE MADISON ORLANDO. FLORIDA 32801.2386 TAMPA MILWAUKEE TELEPHONE(407)423-1656 WASHINGTON D.C. SACRAMENTO FACSIMILE (4071648.1143 WEST PALM BEACH WRITER'S DIFECI LINE MEMORANDUM TO : The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorney / y DATE : January 12, 1998 RE : Qualifications of Mr. Howell to Hold Elected Office Danny Howell has recently brought to our attention certain information which raises a question regarding his qualifications to continue to hold the elected office of Ocoee City Commissioner. The purpose of this memorandum is to advise the City Commission regarding the information which has been brought to our attention, the applicable law affecting Mr. Howell , and the options available to the City Commission. Please note that the Florida Sunshine Law is applicable to the subject matter of this memorandum and that all communications between members of the City Commission should be at public meetings of the City Commission. BACKGROUND : Mr . Howell has advised us that approximately ten years ago he pleaded no contest to a third degree felony charge involving a worthless check in the approximate amount of $200 . 00 . He advises that his now ex-wife withdrew funds from their checking account without his knowledge during their divorce proceedings and that her action caused his check to become worthless . He was represented by the Public Defender in the proceeding which resulted in an adjudication of guilt and was placed on three years probation with the right to seek an early termination of the probation after twelve months . Conviction of a felony results in the suspension of a persons civil rights until such rights are restored as provided by law. Approximately one year after his conviction, Mr. Howell advises us that he contacted the Supervisor of Elections Office to inquire as to how he could get his voting rights restored and that ESTABLISHED 842 A Rnm R r G obALE..: nne,nF r. H B N.Bu,a.e ;.D DL New o. ,. P..aI:.S N a L.nv AND Inui t he subsequently received in the mail a voter registration card. Mr. Howell incorrectly believed that receipt of the voter registration card meant that his civil rights (including his voting rights) had been restored and that no further action was required. In fact, it is necessary to apply to the Governor in order for a convicted felon to have his civil rights restored. Mr. Howell recently became aware of the situation during a criminal records search undertaken in connection with a minor traffic infraction. Mr. Howell is now in the process of applying for the restoration of his civil rights, including the right to vote . However, as of this date, his civil rights have not been restored and the City has confirmed that he has a criminal record which reflects a conviction of a third degree felony. Commissioner Howell brought this information to our attention in order to determine the impact, if any, on his ability to continue to hold elected office . In preparing this memorandum, we have not undertaken any independent inquiry of the facts as presented to us by Mr. Howell . APPLICABLE LAW: Absent the receipt of information indicating that the criminal records incorrectly state the results of his conviction and the status of his civil rights, Mr. Howell is a convicted felon who has not had his civil rights restored. Our legal analysis is based on the assumption that there is no change in the facts as presented. Section 4 of Article VI of the Florida Constitution clearly addresses the legal impact of a felony conviction by providing as follows : "No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights . . The procedure for restoration of civil rights is set forth in Section 8 (a) of Article IV of the Florida Constitution, to wit : civil rights are restored by the Governor with the approval of three members of the Cabinet . In addition, the provisions of Section C-11 of the Ocoee City Charter provides as follows with respect to the qualifications to hold elected office : "Only qualified electors of the City shall be eligible to qualify for and to hold the offices of Mayor and Commissioner. . " The provisions of Section 166 . 032 , Florida Statutes, set forth the following standards in order to be a "qualified elector" : _2_ "Any person who is a resident of a municipality, who has qualified as an elector of the state and who registers in the manner prescribed by general law and ordinance of the municipality shall be a qualified elector of the municipality. " In implementation of the constitutional provision, Section 97 . 041 (2) (b) , Florida Statutes, provides that a person who has been convicted of a felony by any court of record is not qualified to register or vote unless his right to vote has been restored pursuant to law. The incorrect issuance to Mr. Howell of a voter registration card does not act to restore his civil rights or otherwise make him a qualified elector. Accordingly, it is our opinion, based upon the information provided by Mr. Howell, that (i) he is disqualified from holding elected office or being eligible to register to vote until his civil rights have been restored in accordance with Florida law, and (ii) he was not at the time of his election and currently is not a qualified elector under the provisions of state law and the Ocoee City Charter. Pursuant to Section C-10 of the City Charter, the City Commission is the "judge of the election and qualifications of its members and of the grounds of forfeiture of their office" . The provisions of Section C-17 .B of the City Charter are relevant to the Commission' s determination as to whether or not Mr. Howell should forfeit his office . That Section provides as follows : "Any member of the City Commission shall forfeit his office if he lacks at any time during one' s term of office any qualification for the office prescribed by this Charter or by law or is convicted of a felony or any crime involving moral turpitude . The provisions of this subsection shall be exercised in accordance with the provisions of Section C-10 . " Based upon the foregoing, it is our opinion that (i) Mr. Howell lacks the legal qualifications to hold office under the City Charter, (ii) Mr. Howell is subject to having his office forfeited and declared vacant by the City Commission or by the Governor under the provisions of Section 114 . 01 , Florida Statutes, and (iii) the City Charter calls for the forfeiture of his office due to lack of the legal qualifications . While Mr. Howell lacks the legal qualifications necessary to hold the office of Ocoee City Commissioner, such disqualification does not operate to automatically remove him from office absent action of the City Commission, the Governor, or a court order issued in a quo warranto or other applicable proceeding. Under the current circumstances, it appears that Mr. Howell is an "officer de facto" by virtue of his election and the certification of the election by the Canvassing Board. An officer (or Commissioner) de facto is a Commissioner actually in possession of a public office -3- and discharging its duties under color of some right, such as an election, notwithstanding that such election may be void for lack of qualifications . As a general statement, Mr. Howell' s actions in discharging the duties of his elected office would appear to be valid and binding as an officer de facto until such time as he may be removed from office . (See Section 12 . 17, McQuillan' s on Municipal Corporations; See AGO 073-193 . ) As noted above, Mr. Howell is currently attempting to have his civil rights restored. This raises a question as to what would happen if his civil rights were restored prior to his removal from office . This issue appears to have been address by the Florida Supreme Court in a 1937 decision entitled Tillson v. State. In that case, the Court found that a City Commissioner who lacked the necessary qualifications for office at both the time of qualification for the election and at the time he assumed performance of the duties of the office and then subsequently became qualified to hold such office was not lawfully entitled to hold the office and exercise the powers and duties thereof . Accordingly, the Florida Supreme Court affirmed a judgment of ouster in a quo warranto proceeding to remove the City Commissioner from office. OPTIONS AVAILABLE TO CITY COMMISSION: The City Commission is the judge of the election and qualifications of its members . Accordingly, the issue presented to the City Commission is whether or not it should take action to remove Mr. Howell from the office of City Commissioner due to his lack of qualifications to hold office. In the event the City Commission pursues such action, then Mr. Howell would be entitled to demand a public hearing with notice thereof published at least seven days prior to that hearing. In the absence of a waiver of the public hearing by Mr. Howell, it is my recommendation that any such action be taken only after a properly noticed public hearing. Any decision of the City Commission would be subject to review by the courts . In the event the City Commission takes no action to remove Mr . Howell from office, then he would continue to serve as an officer de facto unless otherwise removed by the Governor or by a court order. However, in such event , there could be circumstances in which disclosure would be required or in which we would be unable to render an opinion to third parties regarding the validity of a Commission action approved by a 3 to 2 vote in which Mr. Howell votes in the majority. For example, a disclosure would be required in connection with any tax exempt financing undertaken during the remainder of Mr. Howell' s term. If the City Commission votes to remove Mr. Howell from office for the reasons set forth above, then there would be a vacancy in the City Commission seat for his District . The provisions of Section C-17 .0 of the City Charter addresses the filling of vacancies and requires that the City Commission select an eligible _q_ person within 30 days of the vacancy to serve until the successor is elected. If a general city election will not be held within six months, then the successor is elected at a special election called by the City Commission within 30 days of the vacancy. Otherwise, the successor is elected at the next general city election. In either event, the successor serves the unexpired term of the member who created the vacancy. RECOMMENDATION: It is my recommendation that this matter be placed on the next City Commission agenda for discussion to determine what action, if any, the City Commission desires to take . In connection with any vote, Mr. Howell would have a conflict which would require that he abstain. In the meantime, if you have any questions regarding this memorandum, please do not hesitate to contact me . PER:wyd cc : Mr. Ellis R. Shapiro, City Manager Mrs . Jean Grafton, City Clerk A% OMMIS vva'AlsKWERSw -5-