Advisory Opinion No. 2014-7 Rhode Island Ethics Commission Advisory Opinion No. 2014-7 Approved: March 25, 2014 Re: Robert Crowe QUESTION PRESENTED: The Petitioner, a member of the Coventry Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from appearing before the Coventry Zoning Board of Review to seek a dimensional variance for a mixed-use rental property that he has owned since 2009. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Coventry Zoning Board of Review, a municipal appointed position, is authorized to appear before the Coventry Zoning Board of Review to seek a dimensional variance for a mixed-use rental property that he has owned since 2009, provided that he recuses from the Coventry Zoning Board of Review’s discussion and vote regarding his application. The Petitioner is a member of the Coventry Zoning Board of Review (“Zoning Board”). He has served on the Zoning Board for more than thirty (30) years. He represents that he has owned a building located at 1152-1154 Main Street in Coventry since 2009. He states that this is a mixed-use property with a bar/restaurant located on the first floor and a residential apartment on the second floor. He informs that he currently rents both the bar/restaurant and the apartment to two separate tenants. The Petitioner represents that he and the owner of the neighboring property to the east have been in an ongoing dispute as to the property line. He states that his neighbor erected a fence so close to his building that he is no longer able to wheel the small dumpster, which is used by both the commercial and the residential tenants, to the curb on collection night. He informs that there is no other access to the street from the rear of the building. In order for his tenants’ trash to be collected and hauled away, the Petitioner states that he has had no choice but to relocate his small dumpster to the front of the building. However, this location is generally prohibited by the Coventry Zoning Ordinance, which provides as follows: Required Trash Areas - All commercial, industrial and multi-family residential uses shall provide trash and/or garbage collection areas located in the rear of the building, enclosed on at least three (3) sides by a solid wall, opaque fence or compact planting screen of at least five (5) feet in height if such area is not within an enclosed building or structure. Provisions for adequate vehicular access to and from such area or areas for collection of trash and/or garbage shall be required. Coventry Zoning Ordinance § 1207. He informs that after consulting with his attorney relative to remedying the situation, he has been advised to request a dimensional variance from the Zoning Board. The Petitioner’s attorney, John S. Brunero, Jr., Esq., informs that there is ongoing litigation in Kent County Superior Court regarding the property line dispute between the Petitioner and his neighbor. He states that the litigation will hopefully remediate the situation either by the removal of the fence or the installation of a gate allowing the Petitioner to access his dumpster. Notwithstanding the issuance of a variance, if circumstances change the Petitioner states that he will return the dumpster to the rear of the building as soon as access is restored. Section 5(e) of the Code of Ethics 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. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(a)(1). Public officials and employees are similarly prohibited from authorizing another person to appear on their behalf before a state or municipal agency of which they are a member or by which they are employed. Commission Regulation 36-14-5016(a)(2). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one year thereafter. In contrast to most other Code of Ethics provisions, declining to participate in related discussions and votes is insufficient to avoid section 5(e) conflicts, absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists. Section 5(e)(1) specifically authorizes exceptions, which the Commission has granted in certain circumstances, to allow a public official to represent himself before his own agency upon recusal and based upon a finding that a denial of such self-representation would result in a hardship. 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 specific to 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; whether the relief sought involves a primarily commercial venture; and whether the official’s interests were brought before an agency as a result of the actions of a third party. Under a totality of the circumstances analysis, no single factor is determinative. The Commission has previously granted hardship exceptions to public officials, allowing them to appear before their own boards to request zoning variances for mixed-use rental properties. See A.O. 2010-19 (granting a hardship exception to a Newport Zoning Board of Review alternate member and permitting him to appeal the denial of a building permit for a residential rental property, consisting of three (3) residential units and one (1) unused nonconforming commercial storefront, in order to refurbish the commercial storefront for rental use); A.O. 2001-30 (granting a hardship exception to the Senior Assistant Solicitor for Providence and permitting him to appear before the Providence Zoning Board, as well as other municipal agencies for which he acts as legal counsel, in order to seek zoning relief relative to a residential rental property, consisting of three (3) residential apartments, in which he needed Historic District Commission approval to repair the stairs, and Zoning Board approval to establish his private law offices in the first floor and to add a fourth rental unit to the property). In the present matter, the Petitioner seeks a dimensional variance for a mixed-use rental property that he has owned for approximately five (5) years. He has served on the Zoning Board for more than thirty (30) years. He represents that, if not for the actions of his neighbor, the variance would not be necessary because he would continue to comply with the Zoning Ordinance requiring him to store his dumpster at the rear of his property. He further states that notwithstanding receiving the variance, if the circumstances change he will return the dumpster to the rear of the property as soon as his access is restored. He informs that the variance is necessary to ensure that he is providing trash removal services to his tenants in compliance with the Zoning Ordinance. Considering the Petitioner’s above representations, and consistent with our past opinions in this area, 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 is authorized to appear, either personally or through counsel, before the Zoning Board to obtain a dimensional variance for his mixed-use rental property. 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. 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. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, or charter provision may have on this situation. Code Citations: § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2010-19 A.O. 2001-30 Keywords: Hardship Exception Property Interest