Advisory Opinion No. 2011-6

Re: Frank DiMauro

QUESTION PRESENTED

The Petitioner, a member of the Tiverton Planning Board, a municipal appointed position, requests an advisory opinion as to whether he may participate in and vote on the Tiverton Planning Board’s review of a proposed amendment to the zoning ordinance to allow landscaping businesses within certain zones of the Town of Tiverton, given the fact that the Petitioner is a resident and property owner in one of the affected zoning districts.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Planning Board, a municipal appointed position, may participate in and vote on the Tiverton Planning Board’s review of a proposed amendment to the zoning ordinance to allow operation of landscaping businesses within certain zones of the Town of Tiverton (“Town”), notwithstanding the fact that the Petitioner is a resident and property owner in one of the affected zoning districts.

The Petitioner is a member of the Tiverton Planning Board (“Planning Board”). He represents that the Town Council has asked the Planning Board for a recommendation as to whether to amend the Town Zoning Ordinances to allow the operation of landscaping businesses in zoning district R-80 (“R-80”) by special use permit, and by right within the following zoning districts: Village Commercial, Highway Commercial, General Commercial, Waterfront, and Industrial.

The Petitioner further informs that he is a resident and property owner in R-80. Accordingly, the issue with respect to this Petitioner is whether he may participate in the Planning Board’s recommendation as to a zoning amendment that would affect R-80.

Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if, for example, an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Finally, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d).

However, section 36-14-7(b) of the Code, sometimes referred to as the “class exception,” states that a public official will not have an interest which is in substantial conflict with his official duties if any benefit or detriment accrues to him “as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater or lesser extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.”

When determining whether any particular circumstance supports and justifies the application of the class exception, the Commission will consider the totality of the circumstances. A.O. 2009-42. Among the important factors considered are: (1) the description of the class; (2) the size of the class; (3) the function or official action being contemplated by the public official; and (4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action. Id.

The Petitioner informs that the Town has a total population of approximately 15,000 people. He informs that the proposed amendment will affect all residents of R-80 equally, by allowing landscaping businesses to petition the zoning board for a special use permit to operate a business in a residential area. He further informs that R-80 is the largest of the four residential districts by area, which according to the Tax Assessor represents 59.41% of the acreage in the Town. He advises that there are 2,704 parcels in R-80 and 1,955 housing units in R-80.

In addition to R-80, the proposed zoning amendment will also affect various commercial zoning districts. The Petitioner represents that these districts each contain the following number of parcels: the Village Commercial District contains 16 parcels; the Highway Commercial District contains 79 parcels; the General Commercial District contains 311 parcels; Waterfront District contains 367 parcels, and includes a mix of residential and commercial properties; and the Industrial District contains 168 parcels. Together, the various commercial districts affected comprise a total of 941 parcels.

After considering the totality of the circumstances based on the Petitioner’s representations, the class exception as provided for in section 36-14-7(b) applies. The Petitioner will be impacted by the zoning amendment to no greater extent than the other property owners, residents, and abutters of R-80. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner may participate in and vote on the Planning Board’s review of a proposed amendment to the zoning ordinance to allow operation of landscaping businesses within certain zones of the Town, notwithstanding the fact that the Petitioner is a resident and property owner in R-80.

Code Citations:

§ 36-14-5(a)

§ 36-14-5(b)

§ 36-14-7(a)

§ 36-14-7(b)

Related Advisory Opinions:

A.O. 2009-42

A.O. 2005-13

Keywords:

Class Exception