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HomeMy WebLinkAbout11-12-2001 Planning and Zoning Boards/LPABROWN, WARD, SALZMAN & WEISS, P.A. Usher L. Brown John H. Ward' Gary S. Salzman' Jeffrey S. Weiss Suzanne D'Agresta Anthony A. Garganese° Scott D. Danahy Alfred Truesdell Arthur R. "Randy" Brown, Jr.+ Brett A. Marlowe Jeffrey P. Buak Kristine R. Kutz Joseph G. Colombo Debra S. Babb Gregory A. Hass Cheyenne R. Young Joseph E. Blitch 4 Board Certified Civil Trial Lawyer ° Board Certified Business Litigation Lawyer ° Board Certified City, County & Local Government Law Board Certified Labor & Employment Law ATTORNEYS AT LAW November 12, 2001 BY FACSIMILE #407/327-4753 (VIA CITY CLERK'S OFFICE) AND BY UNITED STATES MAIL The Honorable Mayor Paul P. Partyka and Members of the City Commission 1126 East State Road 434 Winter Springs, Florida 32708-6912 Re: Planning and Zoning Board/LPA Dear Mayor Partyka and Members of the City Commission: Two Landmark Center 225 East Robinson Street, Suite 660 Post Office Box 2873 Orlando, FL 32802-2873 (407)425-9566 (407) 425-9596 FAX Email: agarganese@orlandolaw.net Website: www.orlandolaw.net As you may recall, Joanne Krebs was recently appointed to the Planning and Zoning Board/LPA. At the time she was appointed, the City Commission directed that I confirm that Ms. Krebs could simultaneously serve both on the Planning and Zoning Board/LPA and the Code Enforcement Board. If not, Ms. Krebs indicated she would resign from the Code Board and serve on the Planning and Zoning Board/I,PA. Subsequent to that meeting, I thoroughly researched the issue and advised Ms. Krebs by telephone that she could serve on both boards. The Honorable Mayor Paul P. Partyka and Members of the City Commission November 12, 2001 Page 2 This week Ms. Krebs attended her first Planning and Zoning Board/LPA meeting. I was told by City staff that at the meeting several members of the Planning and Zoning Board/LPA questioned Ms. Krebs' ability to serve simultaneously on both the Planning and Zoning/ LPA Board and Code Enforcement Board. I now find it necessary to formalize my opinion in writing so that it is clear she can serve on both boards. Except as explained below, neither state law nor City policy prohibit a person from serving on two City boards. Article II, Section 5(a), Florida Constitution provides in part: "No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that ... any officer may be a member of a ... statutory body having only advisory powers." This constitutional provision prohibits a person from simultaneously holding more than one "office" under the government of the state, counties, and municipalities. The Florida Supreme Court has stated that the term "office" implies a delegation of a portion of the sovereign power to the person filling the office. The Florida Attorney General has frequently opined that purely advisory boards do not exercise sovereign power and are exempt from Article II, Section 5(a), Florida Constitution. On the other hand, quasi-judicial boards do exercise sovereign power because they have final decision making authority and their decisions are appealable to a Court. Relevant to Ms. Krebs' appointment, the Florida Attorney General has held that service on a Planning and Zoning Board/Land Planning Agency which has only advisory functions would not violate the dual office holding prohibition. In Attorney General Opinion 99-16, it was held that a member of a county planning commission may serve on the South Florida Water Management District without violating the prohibition against dual office holding contained in Article II, Section 5(a), Florida Constitution. The planning commission in question was authorized and directed to, among other things, prepare the comprehensive plan and to recommend the plan to the county commission for adoption. In addition, the agency was authorized to monitor the effectiveness and status of the plan and recommend to the county commission such changes in the plan as may be required from time to time. There was no evidence to indicate that the planning commission possessed any authority to take final action regarding the plan or in granting any variances. Instead, the evidence indicated that the powers of the local planning commission were information gathering and advisory only. Similarly, in Attorney General Opinion 74-232, the Florida Attorney General concluded that a planning commission established pursuant to Part 2, Chapter 163, Florida Statutes, and possessing only those powers contemplated by that part was a "statutory body having only advisory powers" for purposes of Article II, Section 5(a), Florida Constitution. Accordingly, the Attorney General considered the duties of such a planning commission to be information -gathering and advisory only. The Honorable Mayor Paul P. Partyka and Members of the City Commission November 12, 2001 Page 3 Section 20-57 of the Winter Springs Code provides for the general duties of the Planning and Zoning Board which also serves as the Land Planning Agency. The general duties under Section 20- 57 appear to be advisory only since the Planning and Zoning Board can only make recommendations to the City Commission for final action. Section 163.3174(4), Florida Statutes, provides that the Local Planning Agency shall be responsible for making certain recommendations relative to the comprehensive plan to the governing body. Therefore, it is clear that the Planning and Zoning Board/LPA does not exercise sovereign power because it is purely an information -gathering and advisory body only. As an advisory body, the City of Winter Springs' Planning and Zoning Board/LPA is exempt from Article II, Section 5(a), Florida Constitution and its members, including Ms. Krebs, may serve on another City board, including a quasi-judicial board like the Code Enforcement Board. It is also noteworthy that the City Clerk could not locate any previously adopted City Commission policy which would prohibit a person from serving on more than one City board. Furthermore, Ms. Krebs' appointment does not present a situation where she would simultaneously serve on two quasi-judicial boards, which would be prohibited by Article II, Section 5(a), Florida Constitution. It is, therefore, my opinion that Ms. Krebs may simultaneously serve on both the Planning and Zoning Board/LPA and the Code Enforcement Board. I hope this letter clarifies the situation. Please contact me should you have any questions. ince ly, Anthony A. Garganese City Attorney AAG:ss cc: Ron McLemore, City Manager Joanne Krebs Planning and Zoning Board (via City Clerk's Office) F:\DOCS\City of Winter Springs\General\Correspondence\Mayor and City Commission\P&Z-Krebbs appt. ltr 11-12-01.wpd