Advisory Opinion No. 2011-34

Re: Jodi M. Gladstone

QUESTION PRESENTED

The Petitioner, an alternate member of the East Greenwich Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether she may appear before the East Greenwich Zoning Board of Review to obtain a dimensional variance for her personal residence.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an alternate member of the East Greenwich Zoning Board of Review, a municipal appointed position, may appear before the East Greenwich Zoning Board of Review to obtain a dimensional variance for her personal residence, based on a finding that the unique facts as represented justify application of the hardship exception as provided in Rhode Island General Laws § 36-14-5(e)(1).

The Petitioner is an alternate member of the East Greenwich Zoning Board of Review (“Zoning Board”), having been appointed in May 2009. She represents that in December 2006, she purchased a home in East Greenwich that is her primary and only residence, where she lives with her two teenage children. She informs that she would like to construct a shed on her property; the size of the proposed shed is ten (10) feet by twelve (12) feet. She states that she intends to use the shed to store the lawn mower, bicycles, wheelbarrow, gardening supplies, sports equipment, patio furniture, and other things currently preventing her from parking her car in the garage.

The Petitioner advises that, due to the unique topography of sloping hills on her lot, there is only one possible location where a shed could be installed on level ground. She informs that this location would encroach on the fifteen (15) foot side setback zoning requirement because the shed would be only five (5) feet from her southern neighbor’s side property line. She represents that she would like to appear before the Zoning Board, either personally or through counsel, to seek a dimensional variance of ten (10) feet in order to install a shed in the only location where the ground is level. She states that her application for a dimensional variance is scheduled for a hearing before the Zoning Board on June 24, 2011. She advises that her neighbor has no objection to the variance.

Cognizant of section 5(e)’s prohibition against representing herself before a municipal agency of which she is a member, the Petitioner requests an advisory opinion as to whether her situation justifies the application of the hardship exception, given that in order to obtain a dimensional variance she will need to appear before the Zoning Board.

Under the Code of Ethics, a public official may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). She may not use her public position or confidential information received through her position to obtain financial gain, other than as provided by law. Section 36-14-5(d).

Most relevant to the instant question is section 5(e) of the Code, which prohibits a public official from representing herself or any other person before any state or municipal agency of which she is a member or by which she is employed. Section 36-14-5(e)(1). Section 5(e)’s prohibition against representing oneself has been extended to include authorizing or directing another person to appear before a board on one’s behalf. Commission Regulation 36-14-5016(a)(2). Absent an express finding of hardship by the Commission, section 5(e)’s prohibition continues while the official remains in office and for a period of one year thereafter. Section 36-14-5(e)(1) and (4).

Section 5(e)’s prohibitions are stricter than virtually any other provisions in the Code. In most instances, public officials and employees may address potential conflicts of interest by declining to participate in related discussions and votes. This is not the case with section 5(e). Absent an express finding by the Commission that a hardship exists, the prohibitions in that section are absolute.

As an initial matter, the Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself before a municipal agency of which she is a member. Having determined that section 5(e) prohibits the Petitioner’s application to the Zoning Board, the Commission next considers whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to proceed before the Zoning Board with certain restrictions.

In considering questions of hardship on a case by case basis, the Commission has focused on the totality of the circumstances, including, but not limited to, the following factors in cases involving property: whether the subject property involves the official’s principal residence or principal place of business; whether the official’s interest in the property is pre-existing to his or her public office or is recently acquired; and whether the relief sought involves a primarily commercial venture. Under a totality of the circumstances analysis, no single factor is determinative.

The Commission contemplated a similar fact pattern in Advisory Opinion 2010-9, considering whether an Exeter Zoning Board member could appear before his own board to request a dimensional variance to install an above-ground swimming pool at his personal residence. There, the Commission granted a hardship exception based on the petitioner’s representations that his ownership interest predated his public service, the relief sought was for his personal residence, and the pool was intended solely for his family’s enjoyment, rather than for monetary or commercial gain. See also A.O. 2002-67 & A.O. 2000-84 (granting hardship exceptions permitting a Charlestown Zoning Board member and his spouse to appear before the Zoning Board regarding dimensional variances required to remodel their residential property); A.O. 98-12 (granting a hardship exception permitting a member of the East Providence Zoning Board to appear before the Zoning Board to seek a variance to rebuild a barn based on the fact that the property is his personal residence and it was acquired prior to his appointment to the Zoning Board).

In contrast, in Advisory Opinion 2000-41 the Commission declined to grant a hardship exception to an Exeter Zoning Board member who sought a special use permit from his own board for the purpose of installing a cellular tower on his residential property, given that the proposed commercial venture served only to generate additional income for the petitioner. See also A.O. 97-146 (concluding that a North Kingstown Zoning Board member could not appear before that board to seek approval for certain variances relating to a residential subdivision for which he was the developer because it did not involve his principal residence or place of business but, rather, a private business venture).

In the present matter, the Petitioner seeks to install a shed for the purpose of storing lawn and recreational equipment in an area outside of her garage. The factors favor application of the hardship exception because the subject variance application involves the Petitioner’s principal residence, her ownership predated her Zoning Board service by over two (2) years, and the relief sought is personal, not commercial, providing for additional storage space at her home.

Based upon the above representations, it is the opinion of the Ethics Commission that the totality of the circumstances justify making an exception to section 5(e)’s prohibitions. Accordingly, the Petitioner may appear, either personally or through counsel, before the East Greenwich Zoning Board of Review to obtain a dimensional variance for her personal residence. The Petitioner must recuse from participation and vote in the Zoning Board’s consideration of her request for relief. Notice of recusal must be filed with the Ethics Commission in accordance with § 36-14-6.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(e)

§ 36-14-6

Commission Regulation 36-14-5016

Related Advisory Opinions:

A.O. 2010-9

A.O. 2002-67

A.O. 2000-84

A.O. 2000-41

A.O. 98-12

A.O. 97-146

Keywords:

Hardship Exception

Property Interest