Can a Florida city change the size or membership of its community redevelopment agency board?

Plain-English summary

Lauderdale Lakes created a community redevelopment agency (CRA) in 2000 and, as the statute allows, appointed its own seven-member city commission to serve as the CRA board. A 2013 charter revision shrank the city's governing body to six members starting in 2014, and it was set to drop to five in 2016. With an even-numbered six-member board, the city worried about deadlocked tie votes on CRA business and asked whether it could change the board's makeup, either by switching to a separately appointed board or by adding members to get back to seven. The Attorney General said it could not.

The Community Redevelopment Act, Part III of Chapter 163, gives a municipality two options when it sets up a CRA: appoint a separate board of five to nine commissioners under section 163.356(2), or declare its own governing body to be the agency under section 163.357(1). Lauderdale Lakes chose the second route. The office explained that, having made that election, the city is bound by it; the statute prescribes the agency's organization with particularity and gives the city no authority to alter the board's composition later. The office relied on its earlier Opinions 84-74 and 89-60, which held that a municipal governing body cannot change the statutorily fixed structure of a CRA and that individual members cannot opt out. As for adding members, section 163.357(1)(c) lets a five-member governing body serving as the CRA board appoint two additional persons, but it does not extend that option to a six-member body. So the city could neither switch board types nor pad the board to break ties.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion covered

Cities and redevelopment agencies

The office advised that a municipality that has declared its own governing body to be the CRA cannot later change that election or alter the board's composition outside the statute. The Community Redevelopment Act fixes the agency's structure, and the city has no ordinance power to deviate from it.

Government attorneys

The opinion turns on the limited-authority principle: where the Legislature prescribes how public officers may act, that mode must be followed and no other. The one flexibility the statute provides, section 163.357(1)(c), allows a five-member governing-body CRA to appoint two additional members; the office read that as the only permitted adjustment and not available to a six-member body.

Common questions

Q: Can a Florida city change its community redevelopment agency board after it sets it up?
A: According to this opinion, no. Once the city declared its governing body to be the CRA, it could not alter the board's composition; the statute fixes the structure.

Q: Can a city add members to its CRA board to avoid tie votes?
A: Only in one narrow situation. Section 163.357(1)(c) lets a five-member governing body serving as the board appoint two more members. The opinion concluded a six-member body has no such authority.

Q: What are a city's options when creating a CRA board?
A: Under the Community Redevelopment Act, it can appoint a separate board of five to nine commissioners, or it can declare its own governing body to be the agency. Either choice carries the statute's fixed structure.

Background and statutory framework

The Community Redevelopment Act, Part III of Chapter 163, Florida Statutes, lets counties and municipalities create agencies to address slum and blight conditions after making the findings the act requires. The statute spells out the agency's organization in detail. Section 163.356(2) authorizes a separately appointed board of not fewer than five and not more than nine commissioners, with removal only for cause after a hearing. As an alternative, section 163.357(1)(a) lets the governing body declare itself the agency, in which case section 163.357(1)(b) makes the governing body's members the agency's members, constituting a separate legal entity. Section 163.357(1)(c) provides the lone sizing flexibility: a five-member governing body acting as the CRA may add two members. The office had already read these provisions strictly in Opinions 84-74 and 89-60, applying the rule from First National Bank of Key West v. Filer that a prescribed statutory mode must be observed. That framework drove the conclusion that Lauderdale Lakes could not restructure its board.

Citations and references

Statutes:

• § 163.356, Fla. Stat. (board of commissioners)
• § 163.357, Fla. Stat. (governing body as agency)
• § 163.335, Fla. Stat. (legislative findings)

Cases:

• First National Bank of Key West v. Filer, 145 So. 204 (Fla. 1933)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/community-redevelopment-agency-municipality-
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1536

Original opinion text

Mr. James C. Brady

Arnstein & Lehr LLP

200 East Las Olas Boulevard

Suite 1000

Fort Lauderdale, Florida 33301

Dear Mr. Brady:

As City Attorney for the City of Lauderdale Lakes, you have asked for my opinion on substantially the following questions:

1. May the City of Lauderdale Lakes, through an adopted ordinance, change the Commission of the Lauderdale Lakes Redevelopment Agency from the original Commission adopted pursuant to section 163.357(1), Florida Statutes, to one established under section 163.356(2), Florida Statutes?

2. May the City of Lauderdale Lakes, by ordinance, provide for a seven-member Commission for the Lauderdale Lakes Redevelopment Agency, pursuant to section 163.357(1)(c), Florida Statutes, by appointing one or two additional members to the CRA Commission, in circumstances in which the original seven-member governing body appointed itself as the CFA Commission, but a recent city charter revision reduced the number of the governing body to six (6) members?

In sum:

1. Having exercised its authority to appoint a board of commissioners for the Lauderdale Lakes Redevelopment Agency and having appointed the city commission to serve as the board of that agency, the city has no authority to change the composition of the board of commissioners.

2. Section 163.357(1)(c), Florida Statutes, provides that a governing body which consists of five members may appoint two additional persons to act as members of the community redevelopment agency. The statute does not authorize a governing body of six to appoint any additional persons to the community redevelopment agency.

According to your letter, the City of Lauderdale Lakes established the Lauderdale Lakes Community Redevelopment Agency (the "CRA") in 2000, and appointed the City's seven-member governing body as the CRA's Commission or governing board. In 2013, the Charter of the City of Lauderdale Lakes was revised and beginning with the election of November 2014, the City's governing body was reduced to six members which resulted in a reduction in the CRA's board to six members. The charter's changes will result in a final reduction in the city's governing body, and the CRA board, in November 2016, when the city's governing body will be reduced to five members. The city is concerned that, with a governing board of six members, the CRA "will find itself hamstrung by tie votes on items of vital business." You have contacted this office for assistance in determining whether the city is authorized to alter the composition of the CRA board.

The Community Redevelopment Act, Part III, Chapter 163, Florida Statutes, was enacted to enable counties and municipalities to eliminate and prevent the development or spread of slums and urban blight, encourage needed community redevelopment, and provide for the redevelopment of slums and blighted areas.[1] Upon making the requisite findings, a county or municipality is authorized to create a community redevelopment agency to carry out the purposes set forth in the act.[2]

The act prescribes with particularity the structural organization and powers of such agencies and the composition, number, and terms of office of the members thereof. Section 163.356(2), Florida Statutes, provides that the governing body of the county or municipality creating the community redevelopment agency shall appoint by ordinance a board of commissioners for the agency "which shall consist of not fewer than five or more than nine commissioners." The governing body of the county or municipality is authorized to remove a commissioner "for inefficiency, neglect of duty, or misconduct in office only after a hearing and only if he or she has been given a copy of the charges at least 10 days prior to such hearing and has had an opportunity to be heard in person or by counsel."[3]

As an alternative to the appointment of a board of commissioners, the governing body may declare itself to be a community redevelopment agency through adoption of a resolution.[4] In such cases all rights, powers, duties, privileges, and immunities vested by Part III, Chapter 163, Florida Statutes, in the community redevelopment agency are vested in the governing body of the municipality.[5] Section 163.357(1)(b), Florida Statutes, provides:

"The members of the governing body shall be the members of the agency, but such members constitute the head of a legal entity, separate, distinct, and independent from the governing body of the county or municipality. If the governing body declares itself to be an agency which already exists, the new agency is subject to all of the responsibilities and liabilities imposed or incurred by the existing agency." (e.s.)

According to your letter, the City Commission of the City of Lauderdale Lakes has exercised this option and designated itself to be the community redevelopment agency.

In Attorney General Opinion 84-74, this office concluded that a city commission was not authorized to alter the composition of a community redevelopment agency or to increase or decrease the number or ratio of its members, given the specific statutorily prescribed organization and powers of these agencies.[6] That opinion required consideration of whether a city commission, if it declared itself to be the community redevelopment agency pursuant to section 163.357(1), Florida Statutes, was authorized to alter the composition of the board of commissioners of the agency by changing the ratio or number of city commissioners and citizens sitting on the board from that prescribed in the statute. In response to that question, the opinion concluded that the governing body of a municipality in establishing a community redevelopment agency pursuant to Part III, Chapter 163, Florida Statutes, the Community Redevelopment Act of 1969, as amended, does not have the authority to alter the composition of the board of commissioners of the community redevelopment agency from that prescribed by statute.

In a later opinion of this office, Attorney General Opinion 89-60, the question presented was whether a city council member who served as a member of the community redevelopment agency established pursuant to Part III, Chapter 163, Florida Statutes, could resign as a member of the community redevelopment agency. The city council in that request had designated itself as the board of commissioners of the CRA. After reviewing the provisions of Part III, Chapter 163, Florida Statutes, prescribing with particularity the structural organization and powers of such agencies and the composition and number of its members and their terms of office, it was concluded that no provision of Part III, Chapter 163, Florida Statutes, granted an individual member of the governing body of a municipality, the discretion or option of whether to serve as a member of that board. As the Attorney General Opinion notes:

"The authority of public officers to proceed in a particular way or under specific conditions implies a duty not to proceed in any other manner than that which is authorized by law.[7] Therefore, it appears that an individual would not be authorized to resign from one office and not the other. The two positions work in tandem; to be a member of the city council entails being a member of the board of commissioners of the redevelopment agency. Once the governing body has elected to serve as the board of commissioners for the community redevelopment agency, the individual members of the governing body of the municipality would appear to be bound by such an election."

Similarly, the City of Lauderdale Lakes elected in 2000 to appoint itself as the Commission for the Lauderdale Lakes Redevelopment Agency pursuant to section 163.357(1)(a), Florida Statutes. Nothing in section 163.357, Florida Statutes, authorizes the city to alter this election or to modify the composition of the board outside the scope of the statute. Section 163.357(1)(c), Florida Statutes, does provide a municipal governing body of five members which has appointed itself as the CRA board, the discretion to appoint two additional persons to act as members of the CRA. No authority is extended by the statute to act otherwise.

Sincerely,

Pam Bondi

Attorney General

PB/tgh

[1] See s. 163.335, Fla. Stat., setting forth the legislative findings and declarations of necessity.

[2] See ss. 163.355 and 163.356, Fla. Stat., providing for the finding of necessity by the county or municipality and the creation of the community redevelopment agency.

[3] Section 163.356(4), Fla. Stat.

[4] Section 163.357(1)(a), Fla. Stat.

[5] See s. 163.357(1)(b), Fla. Stat., providing:

"The members of the governing body shall be the members of the agency, but such members constitute the head of a legal entity, separate, distinct, and independent from the governing body of the county or municipality. If the governing body declares itself to be an agency which already exists, the new agency is subject to all of the responsibilities and liabilities imposed or incurred by the existing agency."

[6] Citing First Nat. Bank of Key West v. Filer, 145 So. 204, 207 (Fla. 1933) (authority of public officers to proceed in a particular way or only upon specific conditions implies a duty not to proceed in any other manner than that which is authorized by law); and see, e.g., Ops. Att'y Gen. Fla. 98-16 (1998) (city commission serving as governing body of CRA cannot remove one of its members only from CRA nor may member resign from CRA while still retaining seat on city commission); 91-49 (1991) (city commission declaring itself to be CRA is a separate, distinct and independent legal entity, chairman and vice chairman of which are designated by city commission); 89-60 (1989) (member of governing body of municipality not authorized to resign from CRA board where governing body of municipality has designated itself as head of agency pursuant to s. 163.357, Fla. Stat.)

[7] First National Bank of Key West v. Filer, 145 So. 204, 207 (Fla. 1933) (where the Legislature has prescribed the mode, that mode must be observed). And see Op. Att'y Gen. Fla. 84-74 (1984) (municipal governing body in establishing community redevelopment agency does not have authority to alter composition of board of commissioners of agency from that prescribed by statute). Cf. Op. Att'y Gen. Fla. 84-56 (1984) (where Legislature has prescribed term and cycle of membership of governing body of municipal housing authority, municipality has no authority to alter such terms); Op. Att'y Gen. Fla. 78-115 (1978).