10-26-1994 MINUTES OF THE PLANNING AND ZONING COMMISSION
,` REGULAR MEETING HELD WEDNESDAY, OCTOBER 26, 1994
CALL TO ORDER
The meeting was called to order by Chairman Switzer at 7:37 p.m. followed by a moment of
silent meditation and the pledge of allegiance. A quorum was declared present.
PRESENT: Chairman Switzer, Vice Chairman Bond, Members Miller, Rhodus, Swickerath,
and Alternate Member McKey. Also present were Planning Director Wagner,
City Attorney Rosenthal, Assistant City Attorney Zelkowitz, and Deputy City
Clerk Green.
ABSENT: Members Jones and Landefeld and Alternate Member Draia.
CONSENT AGENDA
The consent agenda consisted of acceptance and approval of items A and B:
A. Minutes of the Planning and Zoning Commission Regular Meeting held Wednesday,
August 24, 1994.
B. Minutes of the Planning and Zoning Commission Regular Meeting held Tuesday,.
September 13, 1994.
Member Miller seconded b Member Rhodus moved to a.grove and acce et the consent
Now agenda as presented. Motion carried 5 -0.
NEW BUSINESS
Lake Bennet Preliminary Subdivision Plans - Public Hearing
Planning Director Wagner presented his staff report dated October 20, 1994 and advised that
staff recommended that the Planning and Zoning Commission recommend approval of the
Preliminary Subdivision Plans for Lake Bennet dated October 19, 1994.
John A. Moseler, the owner's authorized agent for the Lake Bennet project, was present to
answer questions.
Chairman Switzer opened the public hearing.
David Sheppard, 3118 Amherst Avenue, Orlando, was present with his father Hank Sheppard,
owner of the property directly north of the project. He asked for clarification of roadway
changes to the development agreement for Blackwood Avenue and Maine Street. Planning
Director Wagner said that, in general, the original agreement required that Blackwood Avenue
(formerly California) and Maine Street would be paved after the developer constructed the first
20,000 square feet of development on the project. The revised agreement provided for a first
phase which would include paving approximately 780 feet of Blackwood Avenue as well as
improvements to Highway 50 and an internal street network. Maine Street would be paved in
*,.• the second phase when lots 7 and 8 were developed within the project.
Planning and Zoning Commission Regular Meeting
v r ,,, October 26, 1994
As there were no further comments from citizens, the public hearing was closed.
Member Swickerath asked if adequate provision had been made to protect the City if lot 6 were
used for commercial development rather than for a nursing home, as the 25 foot setback
specified for a nursing home would need to be increased to 50 feet for commercial development.
Mr. Wagner pointed out that the site plan specified a 50 foot building setback along Maine
Street in the northwest corner of the site. In paragraph three of the proposed amendments to
the Developer's agreement (found on sheet five of the plan), the developer was asking for a
waiver to 25 feet if he developed a nursing home on that site, and that would be the only use
that would accommodate the reduction in the normal setback.
Alternate Member McKey questioned the adequacy of the setback around Lake Bennet. Mr.
Wagner said the plan provided for a 100 foot building setback and a landscaped buffer. Also,
the developer had moved all of his development 25 feet outside the 100 year flood plain line.
He said the line was established by Orange County based on a number of drainage studies and
that the line was usually based on fairly extensive studies on historical lake levels.
Vice Chairman Bond, seconded by Member Rhodus, moved to recommend approval of the
Preliminary Subdivision Plans for Lake Bennet dated October 19, 1994. Motion carried 5 -0.
Nor. City Attorney Attendance at P & Z Meetings
City Attorney Paul Rosenthal introduced Steven Zelkowitz, the Assistant City Attorney who
conducted the initial review of matters presented to the Planning and Zoning Commission. Mr.
Rosenthal said Mr. Shapiro had approached him about having an assistant attorney from their
firm attend Planning and Zoning Commission meetings because of the increasing complexity of
some of the issues that would be coming before P & Z and increasing complexities in the law
that would affect a number of the planning and zoning issues. He said Mr. Zelkowitz would be
attending all Planning and Zoning Commission meetings, with the exception of the DRI hearings
on Lake Lotta which Mr. Rosenthal would be attending as the primary attorney.
Attorney Rosenthal explained the role of their representation in a review of his September 26,
1994 memorandum. This memo was included in the packet as an attachment to the September
27, 1994 memorandum from City Manager Shapiro. (Attachment No. 1)
Mr. Rosenthal also reviewed his October 25, 1994 memorandum concerning ex parte
communications in quasi-judicial proceedings. This memo was distributed at this meeting.
(Attachment No. 2)
Discussion ensued in which members asked Mr. Rosenthal for clarification for various matters
concerning ex parte communications and Mr. Rosenthal responded with his opinion.
2
- - - Planning and Zoning Commission Regular Meeting
October 26, 1994
Nur
During this discussion, Member Swickerath stated for the record, "I'm going to tell you that
it makes a big difference to me as a member of this Commission if somebody is requesting
annexation because of the way we are doing it now, what they want to use that property for.
If someone is annexing down next to Gotha and they want to put an industrial park in, I may
be for the annexation but I'm going to be against the land use. Because of the way we do it the
issues get so intertwined."
(Note: Further detail of the discussion was not included here because the City Attorney will be
providing help with complying with Florida law on quasi-judicial proceedings in the ways listed
on pages 2 and 3 of Attachment No. 2. to these Minutes.)
OLD BUSINESS: None.
OTHER BUSINESS: None.
COMMENTS
Planning Director Wagner said the next regular meeting was scheduled for November 8th. He
polled members about a meeting on the fourth Wednesday in November (Thanksgiving eve) and
Members Bond, Rhodus, and Swickerath said they would be unable to attend on that date.
ytay Mr. Wagner reported that Staff was conducting their second review for the Mall. He hoped
with one more review they could be down to major issues and could bring it to some conclusion,
possibly by December, depending on advertising requirements.
He also reported that work was continuing on the Comprehensive Plan Amendment for the Joint
Planning Area Agreement with the County. It might also be ready in December, but Staff would
do everything they could so that P & Z could consider the Mall and the CPA separately.
Chairman Switzer said Mr. Swickerath had requested in an earlier meeting, and he wanted to
reemphasize, that when the issue of the Mall reached the P & Z that members be afforded as
much lead time as possible with their packets.
Chairman Switzer thanked Attorney Rosenthal for his input.
Chairman Switzer announced that Member Ralph Jones was undergoing radiation treatment in
Gainesville for a throat malignancy and that the prognosis was good.
3
Planning and Zoning Commission Regular Meeting
`.. October 26, 1994
ADJOURNMENT
The meeting was adjourned at 8:55 p.m.
arold Switzer, Ch . an
a 41_0 n-J 112p
Mai'tan Green, Deputy City Clerk
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'kr.• 4
• • ATTACHMENT NO. 1
Ocoee "Ca 10/26/94 P & Z MINUTES AYOR• � A4 Q 5 ApNEg
S. SCOTT VANDERGRIFT
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` .1 1 1 V r V L V L COMMISS ONQ�
P R USTY JOHNSON
150 N. LAIK SHORE D �.. PAUL W. FOSTER
O
OCOEE FLORIDA 34761- 22.9r'L:,f
• (407) r ?x'1'7 J : ' ,] it : vGiV`I COMBS '°(4_?.../ • '7 f C ,�.�1 ; �,s Ll JIM GLEASON
OF G000
Q QTY MANAGER
,, v ELLIS SHAPIRO
CITY OF OCOEE
MEMORANDUM
TO: Chairman and Members of the Plannin• and Zoning Board
FROM: Ellis Shapiro, City Manager ��
1,
DATE: September 27, 1994
RE: ATTENDANCE OF ASSISTANT CITY ATTORNEY AT PLANNING AND
ZONING COMMISSION MEETINGS
As the law becomes more complicated and stringent, and with the massive amount of
decisions to be made by the Planning and Zoning Board, it has become apparent that the
lo,,,,,,, Board could use the office of the City Attorney at each of their meeting. I have discussed
the attendance by an Assistant City Attorney with Paul Rosenthal, City Attorney, and the
attached memorandum, dated September 26, 1994, discusses the stipulations by which this
attorney would be used.
I have further sent a memorandum to the Mayor and City Commission asking them to review
the same memorandum, to determine if they have any problem with having the City
Attorney at your October 11, 1994 Planning and Zoning Meeting. If they do have a
problem, then this will become an issue on the October 18, 1994 City Commission Agenda.
If I can answer any questions regarding the City Attorney's September 26, 1994
memorandum, please call me.
ES2:fdg:71
Attachment
cc: Paul Rosenthal, City Attorney
Russ Wagner, Planning Director
FOLEY & LARDNER
111 NORTH ORANGE AVENUE. SUITE 1800
ORLANDO. FLORIDA 32801
TELEPHONE (4071 423 -7656
FACSIMILE 14071 648 -1743
TAMPA. FLORIDA MAILING ADDRESS:
JACKSONVILLE. FLORIDA MILWAUKEE. WISCONSIN
TALLAHASSEE. FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN
WEST PALM BEACH. FLORIDA ORLANDO. FL. 32902 -2193 WASHINGTON. D.C.
ANNAPOLIS. MARYLAND
CHICAGO. ILLINOIS
MEMORANDUM
TO: Ellis Shapiro, City Manager
FROM: Paul E. Rosenthal, Esq., City Attorney /1,
DATE: September 26, 1994
RE: Attendance of Assistant City Attorney at Planning and
Zoning Commission Meetings
‘160"" This memorandum is in response to our inquiry quiry regarding the
ill attendance of an Assistant City Attorney at meetings of the
Planning and Zoning Commission. I would,envision that the role of
such an attorney would include the following:
(1) Where appropriate, verbally advise the Planning and
Zoning Commission on issues which arise during the course
of its meetings.
•
(2) Advise the Planning and Zoning Commission on procedural
issues regarding the conduct of its meetings. This is
particularly important in light of the Snyder case which
found that many Planning and Zoning Commission
proceedings are "quasi- judicial" in nature and therefor
subject to additional procedural requirements.
(3) In the event the Planning and Zoning Commission or any
individual members want the City Attorney to respond to
specific inquiries (other than those answered verbally at
meetings) or to undertake any specific projects, then a
request would be directed to the City Manager who would
then give such direction to the City Attorney as he deems
appropriate. We would not respond to any individual
inquiries unless specifically authorized by the City
Manager.
(4) In connection with each meeting, discuss in advance with
the City Manager, Planning Director and Chairman any
Ellis Shapiro, City Manager
September 26, 1994
fir✓ Page 2
special legal issues which we anticipate may arise during
the course of the meeting.
(5) Assure that all motions approved by the Planning and
Zoning Commission include the necessary approvals and
authorizations needed to comply with Florida law and the
Ocoee Land Development Code.
(6) As appropriate, advise the Planning and Zoning Commission
regarding legal issues associated with specific matters
before the Commission.
(7) As City Attorney, we would serve as the City's legal
counsel assigned to the Commission. We would not serve
as independent legal counsel to the Planning and Zoning
Commission and our representation would be handled in
such a manner so as not to cause a conflict with our
continued representation of the City on planning and
development matters.
Currently, Steven Zelkowitz is the Assistant City Attorney who
''fir► conducts the initial review of matters presented to the Planning
and Zoning Commission. Accordingly, I would propose that Steve be
designated as the attorney from my office to attend the Planning
and Zoning Commission meetings. In order to assure the efficient
implementation of this new program, I would attend the October
meeting as an observer at no charge to the City. At that time,
Steven Zelkowitz would be present and I would introduce the program
and scope of our representation to the Planning and Zoning
Commission.
Frequently, the agenda for Planning and Zoning Commission
meetings include the consideration of matters for which the
developer is required to pay all "review costs" under the
provisions of Section 1 -12 of the Ocoee Land Development Code.
Fees associated with our attendance at Planning and Zoning
Commission meetings will be billed to the appropriate developer
account when the item under consideration is one for which the
developer pays review costs. Similarly, consultations with City
staff, preparation for meetings and research projects will be
billed to the applicable developer accounts. We will also open a
Planning and Zoning Commission file in order to track charges for
legal services related to attendance at the Planning and Zoning
Commission meetings and the handling of projects within the scope
of our representation of the Planning and Zoning Commission which
annot be charged to a developer account. We will also advise the
City Manager regarding the total fees (both City and developer
Ellis Shapiro, City Manager
September 26, 1994
`fir Page 3
paid) associated with our attendance at Planning and Zoning
Commission meetings.
Finally, the Planning and Zoning Commission will be conducting
public hearings in connection with a number of matters relating to
the Lake Lotta DRI's. I will be attending all such meetings as the
primary attorney. Since these are single purpose meetings, I will
continue to charge my time to the appropriate developer accounts.
In some instances, I may have Steven Zelkowitz attend at no cost to
the City or the developer.
If the program described above is acceptable, I would suggest
that it be implemented at the October 11, 1994 meeting of the
Planning and Zoning Commission.
If I can provide you with any additional information, please
let me know.
PER:dh
r
cc: Russell B. Wagner, Planning Director
Steven W. Zelkowitz, Esq.
ATTACHMENT NO. 2
10/26/94 P & Z MINUTES
FOLEY & LARDr'
III NORTH ORANGE AVENUE. SUITS iovv
ORLANDO, FLORIDA 32801
TELEPHONE 1407) 423 -7656
FACSIMILE 14071 648 -1743
TAMPA, FLORIDA MAILING ADDRESS MILWAUKEE, WISCONSIN
JACKSONVILLE. FLORIDA POST OFFICE BOX 2193 MADISON. WISCONSIN
TALLAHASSEE. FLORIDA WASHINGTON. D.C.
WEST PALM BEACH. FLORIDA ORLANDO. FL. 32802 -2193 ANNAPOLIS. MARYLAND
CHICAGO. ILLINOIS
MEMORANDUM
M
TO: The Honorable Mayor and City Commissioners
of the City of Ocoee;
Members of the Planning and Zoning Commission;
Members of the Board of Adjustment;
All City Department Directors;
Designated City Staff Members
FROM: Paul E. Rosenthal, Esq., City Attorney li?f`
-
DATE: October 25, 1994
RE: Ex Parte Communications With City Staff in
Quasi- Judicial Proceedings
For your information, please find enclosed a copy of Attorney
General Opinion No. 94 -71 dated August 19, 1994. The Attorney
General Opinion ( "AGO ") addresses the subject of ex parte
communications with a governing board in connection with rezonings
in general and rezoning of governmentally owned property in
particular. While the specific factual situation deals with a
county commission, it is clear that the opinion would also be
applicable to a city commission. Additionally, the opinion would
be applicable to quasi applications considered by the Planning and
Zoning Commission and the Board of Adjustment in connection with
quasi- judicial proceedings.
The following is a nutshell summary of the Attorney General
opinion:
(1) If a Commissioner /Board member engages in an ex parte
communication, he /she is not required by law to abstain
from voting or to disclose any such communication of
record.
(2) Viewing property is not an ex parte communication.
Ex Parte Communications With City Staff in
Quasi - Judicial Proceedings
r October 25, 1994
Page 2
(3) An allegation of prejudice resulting from an ex parte
communication between a Commissioner /Board member and a
member of the planning and zoning staff would be grounds
for judicial review of a zoning decision (or any other
decision made in a quasi- judicial proceeding).
(4) The Attorney General recommends that all communications
between a Commissioner /Board member and a member of the
planning and zoning staff be disclosed and placed of
record during the proceedings.
While the facts of the AGO are limited to circumstances in which
the local government is the applicant rezoning governmentally owned
property, it appears that the decision would also be applicable to
cases in which a private party is the applicant. We are in the
process of preparing a formal request to the Attorney General to
clarify this matter.
The effect of the AGO is to severely restrict the ability of
the Planning Department staff to communicate with a City
% Commissioner or Board member in advance of a public hearing. Any
such communications will provide grounds for an aggrieved person to
challenge the decision in Court. We recommend that the City follow
the AGO until changed by the legislature or the Courts or further
clarified by the Attorney General.
For your information, attached hereto is a list of the types
of proceedings which are quasi- judicial in nature and subject to
the AGO. The list appears to be continually changing as more court
rulings are issued. Please note that we have previously rendered
an opinion that the proceedings involving the Lake Lotta Mall and
Lake Lotta Center DRI's, comprehensive plan amendments and
rezonings are not quasi- judicial proceedings and, therefore, not
subject to the law regarding ex parte communications.
Increasing attention is being placed on local government
quasi- judicial proceedings. To assist the City in complying with
Florida law, we are undertaking the following activities:
(1) We are preparing rules of procedure to be adopted by the
City Commission for all quasi- judicial proceedings.
(2) We are preparing an information packet explaining your
responsibilities under the law.
-2-
Ex Parte Communications With City Staff in
Quasi - Judicial Proceedings
October 25, 1994
Page 3
(3) We are obtaining a video tape of a seminar recently
conducted by The Florida Bar and Florida Institute of
Government. We will schedule a presentation of portions
of this seminar and answer questions at that time.
PER:dh
Enclosure
C ; \WP I\DOC OCOE.4os\eERDDH10.O42 1025/94 DEBBIEH IP
-3-
COMMON TYPES OF QUASI - JUDICIAL PROCEEDINGS:
1. SPECIAL EXCEPTIONS
2. VARIANCES (E.G. JENNINGS)
3. REZONINGS ON SMALL SCALE (E.G. SNYDER)
4. PRELIMINARY SUBDIVISION PLANS
5. PETITIONS TO VACATE
6. SITE SPECIFIC COMPREHENSIVE PLAN AMENDMENTS CHANGING
FUTURE LAND USE MAP DESIGNATIONS ON A SMALL SCALE
COMMON TYPES OF QUASI - LEGISLATIVE PROCEEDINGS:
1. ORDINANCES, EXCEPT AS NOTED
2. RESOLUTIONS
3. ADMINISTRATIVE REGULATIONS
4. COMPREHENSIVE PLAN AMENDMENTS, EXCEPT AS NOTED
5. LARGE PD'S AND DRI'S (not all agree on this)
6. ADMINISTRATIVE REZONINGS
7. INITIAL ZONING ORDINANCES (IN CONNECTION WITH ANNEXATIONS)
8. ANNEXATION ORDINANCES
z"F
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STATE OF FLORIDA
OFPICE OF ATTORNEY GENERAL A�
ROBERT A. BUTTERWORTH )D
August 19, 1994 'c♦
0P
The Honorable Truman G. Scarborough, Jr.
Chairman, Brevard County Commission 94
400 South Street
First Floor, Suite IA
Titusville, Florida 32780 -7698
Dear Commissioner Scarborough:
On behalf of the Brevard County Board of County Commissioners,
you ask substantially the following questions:
1. If a county commissioner engages in ex parte
communication regarding a rezoning, must he or
she abstain from participating in the rezoning
r proceeding and /or disclose the communication on
the record?
2. Is viewing the property for which rezoning has
been requested an ex parte communication?
3. May a board of county commissioners review a
request to rezone county -owned property in order
to bring the property into compliance with the
county's comprehensive plan, without violating a
legal or ethical constraint?
4. If so, are conferences with planning and zoning
staff outside the review proceeding considered ex
parte communications?
5. Are conferences with staff of the city department
initiating the rezoning request considered ex parte
communications?
6. Does consideration of a county- initiated rezoning
request for county - owned property create a conflict
of interest under section 112.3143, Florida Statutes?
The Honorable Truman G. Scarborough, Jr. 94 -71
Page Two
In sum:
1. Proof of an ex parte communication creates a
rebuttable presumption that a decision is prejudiced.
However, nothing requires a county commissioner who has
engaged in an ex parte communication to abstain from
voting on a request for rezoning or to disclose such
communication on the record.
2. Viewing the subject property would not be ex parte
communication, if there is no communication between one
of the parties and the county commissioner.
3. A county commission is not precluded from reviewing
rezoning requests for county -owned property in order to
bring such property into compliance with the county's
comprehensive plan. Such determinations with findings
of fact and a record of the proceedings, however,
would be subject to judicial review.
4. While discussions between the county commission and
the planning and zoning staff would not automatically
mandate reversal of the commission's rezoning decision,
any allegation of prejudice resulting from ex parte
communications in a quasi- judicial proceeding would be
grounds for judicial review. In order to assure
fairness to all parties, any communication with the
planning and zoning staff should be documented and
placed on the record in order for all parties to have
an opportunity to respond.
5. In light of the involvement of staff members of
a department requesting a zoning change in the
proceedings, contact with the staff outside the quasi -
judicial proceeding could result in an allegation of
ex parte communication. Such communication, therefore,
should be disclosed to all interested parties and
placed on the record during the proceeding to allow
such parties to respond.
6. The determination of whether consideration of a
county- initiated rezoning request for county -owned
property would constitute a conflict of interest in
violation of section 112.3143, Florida Statutes, is
within the jurisdiction of the Florida Commission on
The Honorable Truman G. Scarborough, Jr. 94 -71
Page Three
Ethics. It would appear, however, that the prohibition
in section 112.3143, Florida Statutes, relates to those
instances where the vote of a public officer would
result in a "special private gain" to such officer
and would not prohibit the consideration of rezoning
county -owned property.
Ouestion One
In light of the decisions in Jennings v. Dade County' and
Snyder v. Board of County Commissioners of Brevard County,'
the question has arisen whether a county commissioner who
participates in ex parte communication regarding the rezoning
of property must recuse himself from voting on the issue or make
the ex parte communication known on the record. In Jennings,
the Third District Court of Appeal determined that proof of an
ex parte communication by a quasi- judicial officer creates a
rebuttable presumption of prejudice unless proven otherwise
by competent evidence by the officer. Subsequently, the Fifth
District Court of Appeal, in Snyder, determined that considera-
,,, tion of a rezoning request is quasi- judicial in nature and
requires appropriate due process to the party requesting the
rezoning.' Taken together, these. cases ensure that the landowner
will receive due process in a proceeding for the rezoning of
private property.
In Jennings, the court considered the effect of an ex parte
communication upon a decision by a county commission in a quasi -
judicial proceeding upholding the granting of a zoning variance.
It was alleged that prior to the commission's action, a lobbyist
for the petitipning party, registered as required by a county
ordinance, engaged in ex parte communications with some or all
of the county commissioners. In rejecting the county's conten-
tion that an ex parte communication does not deny due process
where the substance of the communication was discoverable by
the complaining party in time to rebut it on the record, the
court concluded that the allegation of prejudice resulting from
.ex parte contact with the decision - makers in a quasi- judicial
proceeding states a cause of action.
The court stated that upon proof that an ex parte communication
has occurred, there is a presumption of prejudice. The burden is
then placed upon the party who initiated the ex parte communica-
tion to show that no prejudice resulted from the contact. Thus,
the county commission should adhere to procedures that guarantee
14 a "fair, open and impartial hearing."
The Honorable Truman G. Scarborough, Jr. 94 -71
Page Four
I am not aware of, nor have you directed my attention to, any
statutory provision that requires a commission member to recuse
himself or herself from a proceeding in which the member has
engaged in ex parte communications. While there is no statute
that directs a commission member to disclose an ex parte com-
munication, it would be advisable to place the existence and
content of such communication on the record, and to allow the
aggrieved party the opportunity for rebuttal.' Such measures
would appear to provide due process protection for any party who
has been presumptively prejudiced by the ex parte communication.
Ouestion TWQ
Inherent in the prohibition against "ex parte" communication
is communication between the decision -maker in a judicial or
quasi- judicial proceeding and one of the parties in the pro -
ceeding.' While the independent viewing of subject property
by a commissioner may be outside the quasi- judicial proceeding,
it does not appear that such action would constitute an ex parte
communication that would create a presumption of prejudice.
Ouestion Three
The county commission is the body. possessing the authority to
'"review the rezoning of property within the county.' Any zoning
or rezoning by the county commission, however, must conform with
the county's comprehensive plan.' This would appear to have
equal application to county -owned property.' Thus, the county
commission would be bound to review the request for rezoning of
its own property in order to bring such property into compliance
with the county's comprehensive plan.
While generally:a governmental unit's property is not subject
to its own zoning regulations when the governmental unit is
acting in a governmental capacity, 10 it has been recognized by
the Supreme Court of Florida that
zoning variations to accommodate county or municipal
facility purposes should either have been anticipated
in zoning ordinances before construction or operation
of such facilities is commenced or, if this has
not been done, construction should not be under-
taken thereof until after due modification or change
therefor is made in existing zoning ordinances."
Accordingly, it would appear that the county commission would
properly review a request for the rezoning of county -owned
,, property in order to bring it into compliance with the county's
11 ;.omprehensive plan.
The Honorable Truman G. Scarborough, Jr.
Page Five 94 -71
Question Four
As reflected in the court's discussion in Jennings, "[e]x parte
communications are inherently improper and are anathema to quasi -
judicial proceedings. p12 The Jennings court further stated that
"[q]uasi- judicial officers should avoid all such contacts where
they are identifiable.j
While discussions with the planning and zoning staff would not
automatically mandate reversal of a county commission's rezoning
decision, any allegation of prejudice resulting from ex parte
communications in the quasi- judicial proceeding would state a
cause of action for judicial review of the commission's action.
In order to assure fairness to all parties, any ex parte commu-
nication with the planning and zoning staff should be documented
and placed on the record in order for all parties to have an
opportunity to respond.
Question Five
Given that the staff members of a county department requesting
a zoning change for count owned
y- property would most likely
be advocates for the requested change, contact with the staff
outside the quasi- judicial proceeding could be considered ex
parte communication. The Jennings court set forth the following
criteria that should be considered in determining whether such
communication is prejudicial:
[w]hether, as a result of improper ex parte
communications, the agency's decisionmaking process
was irrevocably tainted so as to make the ultimate
judgment of the agency unfair, either as to an
innocent party or to the public interest that the
agency was obliged to protect. In making this
determination, a number of considerations may be
relevant: the gravity of the ex parte communications;
whether the contacts may have influenced the agency's
ultimate decision; whether the party making the
improper contacts benefited from the agency's ultimate
decision; whether the contents of the communications
were unknown to opposing parties, who therefore had no
opportunity to respond; and whether vacation of the
agency's decision and remand for new proceedings would
serve a useful purpose. Since the principal concerns
of the court are the integrity of the process and the
fairness of the result, mechanical rules have little
The Honorable Truman G. Scarborough, Jr.
Page Six 94 -71
place in a judicial decision whether to vacate a
voidable agency proceeding. Instead, any such decision
must of nedessity be an exercise of equitable discre-
tion.
Accordingly, should communication occur between the county
commission and staff of a county department requesting a rezoning
of county property, such communication should be disclosed to all
interested parties and placed on the record during the proceeding
to allow the parties to respond.
Question Six
The determination of whether consideration of a rezoning request
for county -owned property would constitute a conflict of interest
in violation of section 112.3143, Florida Statutes, is within
the jurisdiction of the Florida Commission on Ethics. It
would appear, however, that the prohibition in section 112.3143,
Florida Statutes, relates to those instances where the vote of a
public officer would result in a "special private gain" to such
1l officer. It would appear, therefore, that absent an allegation
or showing of private gain to a county commissioner as a result
I llr✓of voting for the rezoning of county -owned property for the
purpose of bringing it into compliance with the county's •
co��•r- ive plan, there would be no conflict of interest
pursuant to - ction 112.3143, Florida Statutes.
Sincerely,
1 I
Robert A. Butterworth
Attorney General
RAB /tgk
1 589 So. 2d 1337 (Fla. 3d DCA 1991).
2 595 So. 2d 65 (Fla. 5th DCA 1991).
See, Jennings at 1343, acknowledging that the granting of
zoning variances and special exceptions or permits is a quasi -
judicial action, citing Walgreen Co. v. Polk County, 524 So. 2d
morlk
1119, 1120 (Fla. 2d DCA 1988) .
fir. Jennings at 1345.
„, The Honorable Truman G. Scarborough, Jr.
Page Seven 91 -71
s Cl.„ section 120.66(2), Fla. Stat.
(1993) .
6 , Black's Law Dictionary (5th ed. 1979) , p. 517, defining
” [e] x parte" as
etc., . • . when it] isutakenlorrgrantedgat °therinstancetind,
for the benefit of one party only, stance and
Y, and without notice to, or
contestation by, any person adversely interested."
, section 12 5.01(1)(h), F.S. (1993), authorizing counties
to "[e]stablish, coordinate, and enforce zoning and such busi-
ness regulations as are necessary for the protection of the
public."
8 See, section 163.3201, F.S.
comprehensive plans shall be implemented, a in part, by the o p te d
adoption of and enforcement of appropriate local regulations.
Se- e al:Q, Op. Att'y Gen. Fla. 79 -88 (1979), in which this office
concluded that all development undertaken after the adoption of
a comprehensive plan must be in accordance with that plan; local
governments should amend existing zoning ordinances to conform
40 ...„ with the land -use elements of such a comprehensive plan; and Op.
Att'y Gen. Fla. 79 -40 (1979) (county adopting comprehensive plan
4 4t10► must adopt zoning, subdivision planning, or other codes or re u-
lations consistent with such plan). g
9 �+
.SeC:, W y M e t ropp l i Dade Co nte.
(Fla. 3d DCA 1990) in which th district court o recognizes that
the use of county -owned property must comply with the master
plan, its elements, and objectives).
10 Orange Co mn v v all
4th DCA 1974) Y � '`�p�p' , 2 99 S° • 2d 652, 654 (Fla.
11 p _ •
•w -r •,.•11 • 11 S
County, 295 So. 2d 295, 295 -296 (Fla. 1974). • •. l; _� 1-411-
12 Jennings at 1341.
13 Id.
14 Jennings at 1341 -1342, adopting the criteria as set forth
in Professional Air Traffic Controllers Organization (PATCO) v.
Federal Labor Relations Authority, 685 F. 2d 547, 564 -565 (D.C.
Cir. 1982).
1s
See, section 112.320, F.S. (1993), creating the Commission
on Ethics as the guardian of the standards of conduct for the
officers and employees of the state, and of a county, city, or
other political subdivision of the state.