Advisory Opinion No. 2013-16 Advisory Opinion No. 2013-16 Re: Anthony L. Santilli, Jr. QUESTION PRESENTED The Petitioner, the Building and Zoning Official for the Town of Narragansett, a municipal employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from applying for a variance and a special use permit from the Narragansett Zoning Board of Review. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Building and Zoning Official for the Town of Narragansett, a municipal employee position, may apply for a variance and a special use permit from the Narragansett Zoning Board of Review, based upon a finding of hardship pursuant to R.I. Gen. Laws § 36-14-5(e)(1). The Petitioner is the Building and Zoning Official (“Zoning Official”) for the Town of Narragansett, having held this position for approximately twenty (20) years. The Narragansett Town Charter provides that the Zoning Official shall serve as professional staff to the Narragansett Zoning Board of Review (“Zoning Board”). The Petitioner states that he attends Zoning Board meetings to provide clarifications and interpretations of the Zoning ordinance. He informs that his official duties do not extend to providing advice to the Narragansett Planning Board (“Planning Board”). The Petitioner represents that he would like to replace and enlarge an existing deck in the rear of his primary residence located at 117 Bonnet Shores Road in Narragansett. He states that he built the home in 2011 and it has been his primary residence since that time. He informs that this new deck would expand its existing footprint only towards his rear property line where it abuts woods and wetlands. He further states that he does not anticipate any objections from his neighbors relative to this deck expansion. The Petitioner represents that this proposed deck expansion requires a dimensional variance relative to lot coverage and a special use permit for a minor wetland encroachment. He states that he will first apply to the Planning Board for a review of his applications and the Planning Board will forward a positive or negative recommendation to the Zoning Board. He informs that the Zoning Board will review his applications and decide whether or not to grant him a dimensional variance and special use permit. The Petitioner represents that he would recuse from any participation as the Zoning Official relative to his applications for zoning relief and the Zoning Board’s consideration of his applications. He states that he plans to have his surveyor appear on his behalf to present his applications to the Zoning Board. He further informs that the Zoning Board frequently reviews similar requests for lot coverage dimensional variances and minor wetland encroachment special use permits. Cognizant of section 5(e)’s prohibition against representing himself before a municipal agency by which he is employed, the Petitioner requests an advisory opinion as to whether his situation justifies the application of the hardship exception found at section 5(e)(1), given that in order to replace and expand the deck at his primary residence he will need to seek relief from the Zoning Board. In most instances under the Code, public officials and employees may address potential conflicts of interest by declining to participate in related discussions and votes. Section 5(e) is different because it strictly prohibits public officials and employees from representing themselves before a state or municipal agency of which they are a member or by which they are employed, irrespective of the potential for recusal, without first receiving a hardship exception from the Ethics Commission. Absent an express finding by the Commission that a hardship exists, section 5(e)’s prohibitions continue while the official remains in office and for a period of one (1) year thereafter. Additionally, section 5(e)’s prohibition against representing oneself has been extended to include directing or authorizing another person to appear before a board on one’s behalf. Commission Regulation 36-14-5016(a)(2). As an initial matter, the Petitioner’s proposed conduct falls within section 5(e)’s prohibition on representing oneself before the municipal agency by which he is employed because he serves as the Zoning Board’s professional staff in his capacity as the Zoning Official. See A.O. 2011-23 (applying section 5(e) and granting a hardship exception to the Richmond Town Planner, who sought to represent herself before the Richmond Planning Board, for which she worked as the administrative officer). However, the Commission will consider whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to apply to the Zoning Board for relief. In considering questions of hardship on a case by case basis, the Commission has focused on the totality of the circumstances that have included such factors as: 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 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. See e.g. A.O. 2010-32 (granting a hardship exception to a Barrington Zoning Board member, to seek a variance from his own Board to construct a new home on a legal non-conforming lot, even though his ownership did not pre-date his public service, where the property was to be used as his primary residence and it was located in the same neighborhood where he had lived for over nine (9) years, enabling his children to remain at the same school); A.O. 2007-51 (granting a hardship exception for a Portsmouth Town Council member to seek a variance from the Portsmouth Zoning Board, where she owned the property for twenty (20) years prior to her election to the Town Council, it was adjacent to her primary residence, and the purpose was to build a residence for her adult son); A.O. 2000-50 (granting a hardship to the Lincoln Town Solicitor to seek zoning relief from the Lincoln Zoning Board regarding a property on which he intended to construct his primary residence, where although his ownership did not pre-exist his public service, the zoning relief involved property purchased for use as a principal residence); A.O. 98-113 (granting a hardship exception to a Narragansett Zoning Board member, who sought a variance for a vacant lot on which he intended to build and move into a new primary residence where, although the property interest did not pre-exist his public office, it was being purchased as his principal residence). In the present matter, the Petitioner seeks to replace and expand an existing deck on the rear of his primary residence. The relief sought is not for a commercial purpose, but for the personal use and enjoyment of the Petitioner’s property. The Petitioner is not an appointed member of the Zoning Board with the power to grant variances but a municipal employee who advises the Zoning Board and has served for nearly twenty (20) years as the Town’s Zoning Official. For all of these reasons, it is the opinion of the Ethics Commission that the totality of the circumstances justify the application of the hardship exception as provided in section 36-14-5(e)(1). Accordingly, the Petitioner is not prohibited by the Code of Ethics from applying for a variance and a special use permit from the Zoning Board, provided that he advises the Zoning Board in writing of the existence and nature of his interest in these applications and that he recuses himself from participating in the Zoning Board’s consideration and disposition of such applications in accordance with section 36-14-6. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2011-23 A.O. 2010-32 A.O. 2007-51 A.O. 2000-50 A.O. 98-113 Keywords: Hardship Property Interest