Advisory Opinion No. 2013-6

Re: Robert T. O’Neill, M.D.

QUESTION PRESENTED:

The Petitioner, a member of the Narragansett Zoning Board, a municipal appointed position, requests an advisory opinion regarding whether he qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own Board to obtain a variance for his personal residence.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Narragansett Zoning Board, a municipal appointed position, qualifies for a hardship exception to the Code of Ethics’ prohibition on appearing before his own Board to obtain a variance for his personal residence.

The Petitioner is a member of the Narragansett Zoning Board (“Zoning Board”), having been first appointed as an alternate member in 2008 and recently re-appointed as a full member in August 2012. In his private capacity, the Petitioner is a physician, now semi-retired and seeking to downsize to a smaller home. He represents that he and his spouse are in the process of selling their primary residence, located at 560 Ocean Road in Narragansett, which they have owned for nearly forty years. He states that his home was built in 1883, is listed on the National Register of Historic Places and is situated on a three and a half acre ocean-front lot.

The Petitioner represents that the property has been on the market for the past five years and they have reduced the price a few times. He informs that the only prospective buyer is interested in building a new, larger house on the property, while at the same time preserving the current residence, if possible, as a guesthouse. However, the Petitioner represents that, pursuant to the Narragansett zoning ordinance, guesthouses may not have kitchens and must be attached to the main house. The Petitioner informs that while the kitchen may be removed, the topography of this particular property prevents the future owners from attaching the current residence to a new structure. After consulting with the Town planner, building inspector and Town legal counsel, the Petitioner states that it would be necessary to obtain a zoning variance in order to use the existing residence as a detached guesthouse. He further informs that the prospective buyer will not enter into a purchase and sales agreement until they are assured that they have the option to build a new and larger house on the property while being able to preserve the current, historic residence as a guesthouse.

Cognizant of Rhode Island General Laws § 36-14-5(e)’s prohibition against representing himself before a municipal agency of which he is a member, 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 obtaining the zoning variance is a prerequisite to selling his house to his only prospective buyer at this time.

Section 5(e)(1) prohibits a public official from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. 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).

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. This is not the case with section 5(e). Absent an express finding by the Commission that a hardship exists, section 5(e)’s prohibitions are absolute and continue while the official remains in office and for a period of one year thereafter.

As an initial matter, the Petitioner’s proposed conduct falls squarely within section 5(e)’s prohibition on representing oneself before his own board, the Zoning Board. However, the Commission will consider whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to appear before the Zoning Board with certain restrictions.

In considering questions of hardship on a case by case basis, the Commission has focused on a 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.

The Commission has previously granted hardship exceptions to zoning board members, allowing them to appear before their own board to request a zoning variance for their personal residence or property purchased to be used as their personal residence. See A.O. 2011-34 (granting a hardship exception to an East Greenwich Zoning Board member, who needed a dimensional variance to build a storage shed at her personal residence that she acquired prior to her appointment to the Board); A.O. 2010-32 (granting a hardship exception to a Barrington Zoning Board member, who sought a variance to construct a new home on a legal non-conforming lot, given that the property was to be used as his primary residence and it was located in the same neighborhood where the petitioner had lived for over nine years, enabling his children to remain at the same school); A.O. 99-127 (granting a hardship exception to a Narragansett Zoning Board member, who sought variances to build what would be her primary residence, given that she owned the property for twenty-nine years, approximately twenty-six years prior to her appointment to the Board); 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 because, although the property interest did non pre-exist his public office, it was being purchased as his principal residence).

In the present matter, the Petitioner seeks zoning relief for his principal residence. He has owned this particular property for nearly forty years, significantly pre-dating his appointment to the Zoning Board in 2008. Furthermore, his property has been on the market for five years, and even with price reductions, he states that the zoning relief sought is necessary to enter into a purchase and sales agreement with the only prospective buyer.

Based upon the above representations, it is the opinion of the Ethics Commission that the totality of the circumstances justify the application of the hardship exception as provided in § 36-14-5(e)(1). Accordingly, the Petitioner may appear, either personally or through counsel, before the Narragansett Zoning Board to obtain a variance for his personal residence. The Petitioner must recuse from participation and vote in the Zoning Board’s consideration of his request for relief. Notice of recusal must be filed with the Ethics Commission in accordance with § 36-14-6.

Code Citations:

§ 36-14-5(e)

§ 36-14-6

Commission Regulation 36-14-5016

Related Advisory Opinions:

A.O. 2011-34

A.O. 2010-32

A.O. 2010-9

A.O. 99-127

A.O. 98-113

A.O. 98-105

Keywords:

Hardship Exception

Property Interest