Legal Report-September                                       General Counsel, Trela J. White

1. Section 166.033, Florida Statutes (Development Permits)

On May 4, 2012, Governor Scott signed HB 503 into law.  This amended Section 166.033, Florida Statutes, by adding the following language: “For any development permit application filed with the municipality after July 1, 2012, a municipality may not require as a condition of processing or issuing a development permit that an applicant obtain a permit or approval from any state or federal agency unless the agency has issued a final agency action that denies the federal or state permit before the municipal action on the local development permit.”  The new legislation also provides that the municipality may include disclaimer language in its development permits to notify applicants that the municipality’s issuance of a permit does not excuse them from obtaining any requisite state and federal approvals; and that the municipality may include a permit condition that all other state or federal permits must be obtained before commencement of the development.  Finally, the new legislation states that a municipality is not prohibited from providing an applicant with information regarding what other state or federal permits are needed.

2. Posting of Budget on Municipality’s Official Website

Section 166.241, Florida Statutes, states that a municipality’s tentative budget must be posted on the municipality’s official website at least 2 days before its budget hearings.  The final adopted budget must be posted on the municipality’s official website within 30 days after adoption.  If the municipality does not operate an official website, then the municipality must, within a reasonable period of time, transmit the tentative budget and final budget to the county administrator who shall post the budgets on the county’s website.

3. Palm Beach County Commission on Ethics:  Recent Advisory opinions

a.  RQO 12-063:  The COE reviewed whether an employee of a corporation that owned property within a study area could serve on an advisory board created by the Town of Palm Beach to review and recommend land use changes and development proposals for that study area.  Advisory board members are prohibited from using their official position (i.e. voting on an issue) that would give a special financial benefit to their outside employer, not shared with similarly situated members of the general public.  In evaluating conflicts of interest under the Palm Beach County Code of Ethics, the COE considers: (1) the number of persons who stand to gain from a decision; and (2) whether the gain or loss is direct and immediate rather than remote and speculative.  Where an official’s gain or loss would require many steps and be subject to many contingencies if he voted on a particular matter, such gain or loss is remote and speculative and cannot be said to inure to one’s special financial benefit.  Similarly, for a financial benefit to be “special,” the benefit must inure uniquely to the voting member, rather than benefiting the Town as a whole.  Here, the board member’s employer is one of only 15 property owners that would be subject to the changes recommended by the advisory board.  The number of persons or entities directly affected by potential changes is too small a class to be considered “similarly situated members of the general public.”  Therefore, any discussion, recommendation or vote of the advisory board would present a conflict of interest for the board member.  The COE recommended that the board member resign.

b.RQO 12-058:  The COE reviewed whether a member of the Lake Worth Historical Preservation Board had a voting conflict with respect to a construction project coming before the Board.  The proposed construction was to take place on a vacant lot next to the board member’s home.  The board member’s home was a contributing property to a nationally registered historic neighborhood.  The board member and her husband filed an objection to the “certificate of appropriateness” for the new project, which was to be ruled on by the Preservation Board.  The Palm Beach County Code of Ethics prohibits board members from using their official position to give themselves or their spouses a special financial benefit not shared with similarly situated members of the general public.  The COE held that the financial impact to the board member and her husband stemming from the proposed development was not speculative or remote so as to eliminate a special financial gain or loss.  Therefore, if the board member attended the Preservation Board meeting, she should abstain from voting on the project, not participate in the matter, and file a State Form 8B.  The COE stated that “no participation” means that the board member cannot express her views before the Preservation Board even in her personal capacity as a resident of the City.  The participation prohibition, however, did not extend to the board member’s spouse.

4. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervenor

Case No. 502011CA017953XXXXMB.  Inspector General Funding Lawsuit.

Fourteen municipalities have sued Palm Beach County challenging the method of funding for the Inspector General program.  The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority.  The Inspector General has filed a Motion to Intervene.  This motion, which is opposed by the County, the municipalities and the Clerk of Courts, was rescheduled at the request of the Judge for October 24, 2012.  On August 30, 2012, the municipalities sought leave from the Court to file a Motion for Partial Summary Judgment.  A hearing on the municipalities’ request has not been scheduled yet.  The purpose of the Motion for Partial Summary Judgment is to ask the Court to rule on the legality of the funding method without going to trial.

5.  City of Palm Bay vs. Wells Fargo Bank, N.A.,

Case Number SC11-830.  Superiority of Code Enforcement Liens.

This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website.  No further action has been taken by the Florida Supreme Court at this time.

6.  City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc., 

Case Number SC12-1471.  Red Light Cameras.

This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website.  No further action has been taken by the Florida Supreme Court at this time