Advisory Opinion No. 2014-12 Rhode Island Ethics Commission Advisory Opinion No. 2014-12 Approved: May 13, 2014 Re: Kevin Maloney QUESTION PRESENTED: The Petitioner, a member of the North Kingstown Town Council, a municipal elected position, requests an advisory opinion regarding whether the Code of Ethics prohibits his participation in the Town Council’s consideration of proposed Comprehensive Plan and Zoning Ordinance amendments relative to the Preserve at Rolling Greens development plan, given that the Petitioner’s primary residence is located in an abutting subdivision. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the North Kingstown Town Council, a municipal elected position, is not prohibited by the Code of Ethics from participating in the Town Council’s consideration of proposed Comprehensive Plan and Zoning Ordinance amendments relative to the Preserve at Rolling Greens development plan, given that the circumstances herein justify the application of the class exception as set forth in Rhode Island General Laws § 36-14-7(b). FACTS The Petitioner is a member of the North Kingstown Town Council (“Town Council”), having been elected in November 2012. He informs that the Town Council is scheduled to consider amendments to the North Kingstown Comprehensive Plan (“Comprehensive Plan”), as well as amendments to the North Kingstown Zoning Ordinance (“Zoning Ordinance”) at upcoming meetings in May and June 2014 relative to, among other things, the development of the Preserve at Rolling Greens (“Rolling Greens”) on a 130-acre parcel north of the Route 2/102 intersection.[1] The land subject to the Rolling Greens development is currently comprised of 10 lots and primarily consists of open space, including the existing approximately 100-acre Rolling Greens Golf Course (“Golf Course”). The Rolling Greens developer has proposed constructing a Compact Village Development[2] on the western side of the Golf Course. The Rolling Greens village section would consist of six (6) work/live units, seventy-two (72) duplexes, nine (9) triplexes, thirteen (13) single family homes, and between 32,000 and 40,000 square feet of commercial space. The development includes the new village as well as improvements to the existing Golf Course, which would be permanently preserved as open space to offset the added density of the new compact village. The Petitioner represents that his primary residence is located at 78 Wickham Road in the Wickford Highlands subdivision on the eastern side of the Golf Course. See attached Map. He informs that he has owned this property since 1994. He states that his residence is located on a lot that is approximately 223 feet from the eastern edge of the Golf Course. He further informs that he and all the other homeowners in Wickford Highlands each have an interest in the commonly held property located throughout the subdivision, some of which is located approximately 20 feet from the Golf Course. He represents that the future development of this common property is restricted by a conservation easement. He states that as a result of his interest in the common property, he has received an abutter’s notice for the proposed Zoning Ordinance amendments relative to Rolling Greens.[3] The Petitioner informs that he can see parts of the Golf Course through the trees when there is no foliage. However, he states that he will not be able to see the compact village part of the proposed Rolling Greens development because he is a quarter-mile away from that section of the 130-acre parcel, which is across the Golf Course. The Petitioner informs that the Rolling Greens development plan has been in the works for many years. The North Kingstown Planning Commission (“Planning Commission”) approved a Master Plan for Rolling Greens in November 2012, subject to nearly twenty conditions, including the Town Council’s adoption of amendments to the Zoning Ordinance and Zoning Maps as well as amendments to the text, map and water service area in the Comprehensive Plan. All Comprehensive Plan and Zoning Ordinance amendments must first be reviewed by the Planning Commission, which held public hearings on these Comprehensive Plan and Zoning Ordinance amendments on April 15 and May 6, 2014. Upon a decision by the Planning Commission, a recommendation will be forwarded to the Town Council. Next, the Town Council will hold a first reading at which time it will schedule a public hearing at least three (3) weeks later so that notice procedures can be followed.[4] At the public hearing, the Town Council will consider, among other things, Comprehensive Plan and Zoning Ordinance amendments regarding the Route 2/102 Intersection, the implementation of which are prerequisites to the approval of the Rolling Greens development. If these amendments are approved by the Town Council, the Rolling Greens development will move forward under the oversight of the Planning Commission. In contrast, if these amendments are not approved by the Town Council, the Master Plan for Rolling Greens becomes null and void. In that case, it is likely that, given the existing zoning designations, the entire 130-acre parcel, including the Golf Course, will become a residential subdivision comprised of approximately sixty (60) 2-acre lots, on which 4-bedroom homes would be constructed. Cognizant of the Code of Ethics, the Petitioner seeks guidance as to whether he may participate in the Town Council’s consideration of the Comprehensive Plan and Zoning Ordinance amendments relative to the Rolling Greens development. He represents that he would like to participate in the Town Council’s consideration of these amendments. He informs that, prior to his election, he attended and participated in public hearings before the Town Council and the Planning Commission relative to the Route 2/102 intersection and the Rolling Greens development. He states that the ongoing concerns related to the Rolling Greens development were among the issues that prompted him to run for election to the Town Council in 2012. LAW & ANALYSIS A person subject to the Code of Ethics may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the Petitioner has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, 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). In order to determine whether the above provisions of the Code of Ethics are implicated the Commission must ascertain whether the Petitioner will be financially impacted by the official action that is under consideration. Here, the Petitioner owns a residence that is 223 feet from the Golf Course and he has an ownership interest in the common property of his subdivision that abuts the Rolling Greens development. In matters involving real property, the Commission has consistently applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See e.g. A.O. 2012-4; A.O. 2007-18; A.O. 2006-37; A.O. 2005-16. Applying this presumption, the Commission has often opined that public officials may not participate in the discussion or vote on decisions concerning abutting property, absent reliable evidence that official action would not affect the financial interests of the public official, either positively or negatively. In the present matter, any development on the Rolling Greens property will most likely result in a financial impact upon the value of the Petitioner’s property interests, irrespective of whether it is a Compact Village Development with a Golf Course or a 60-home subdivision. However, the above representations suggest that any financial impact will likely be substantially similar among all of the property owners within the Petitioner’s subdivision. Accordingly, we will consider whether the “class exception” applies to this unique set of circumstances. Section 36-14-7(b) of the Code, referred to as the “class exception,” states: A person subject to this Code of Ethics does not have an interest which is in substantial conflict with the proper discharge of his or her duties in the public interest and of his or her responsibilities as prescribed by the laws of this state, if any benefit or detriment accrues to him or her or any person within his or her family or any business associate, or any business by which the person is employed or which the person represents, 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 extent than any other similarly situated member of the business, profession, occupation or group, or of 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. 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. In this case, although approximately 430 people received abutter’s notices relative to the Rolling Greens development, the circumstances that may result in a financial impact upon the Petitioner’s residence and common property are most similar to those which may impact the other residences in his subdivision. According to the Town Planner, there are 124 residences in Wickford Highlands and the owners of each residence received an abutter’s notice for the proposed Zoning Ordinance amendments, as a result of their shared interest in the subdivision’s common property abutting the Golf Course. Furthermore, the majority of the property owners in Wickford Highlands, including the Petitioner, would not have received an abutter’s notice but for their interest in the common property. Thus, we find that the Petitioner is a member of a class of property owners who own the 124 residences in the Wickford Highlands subdivision. The official action being contemplated by the Petitioner is participation in the Town Council’s consideration of Comprehensive Plan and Zoning Ordinance amendments, some of which are prerequisites to the approval of the Rolling Greens Compact Village Development. However, it is important to note that, while these amendments are related to a specific development, they are quasi-legislative decisions by the Town Council and not the review of a particular person’s development application. Furthermore, the ultimate authority to approve the Rolling Greens development, assuming it complies with Town Plans and Ordinances, rests with the Planning Commission. Here, it is reasonably foreseeable that any development of the Rolling Greens property will have a general financial impact upon all of the property owners in the Wickford Highlands subdivision. First, any traffic changes are likely to impact all of the residents of Wickford Highlands equally as they all wait at the light on Route 102 to enter and exit their neighborhood. Second, the Golf Course has been in existence since the construction of Wickford Highlands in the early 1990s and its preservation will simply preserve the status quo of Wickford Highlands being located next to a Golf Course. Finally, the proximity of either new commercial businesses or another residential subdivision will likely result in a common financial impact upon all of the property owners in Wickford Highlands. Furthermore, the physical separation of the Compact Village Development from Wickford Highlands by the Golf Course lessens the degree of impact by reducing the subdivision’s proximity to the portion of the 130-parcel under construction. Considering the totality of the circumstances, it is the opinion of the Ethics Commission that the specific facts of this case justify the application of the class exception as set forth in section 7(b) of the Code of Ethics. CONCLUSION Accordingly, the Petitioner is not prohibited by the Code of Ethics from participating in the Town Council’s consideration of proposed Comprehensive Plan and Zoning Ordinance amendments relative to the Preserve at Rolling Greens development plan, given that the circumstances herein justify the application of the class exception as set forth in Rhode Island General Laws § 36-14-7(b). This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. This Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision or charter provision may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-7(a) § 36-14-7(b) Related Advisory Opinions: A.O. 2012-4 A.O. 2007-18 A.O. 2006-37 A.O. 2005-16 Keywords: Class Exception Property Interest