Advisory Opinion No. 2021-36 Rhode Island Ethics Commission Advisory Opinion No. 2021-36 Approved: April 27, 2021 Re: Kenneth D. Jones QUESTION PRESENTED: The Petitioner, the Chairperson of the West Greenwich Zoning Board of Review, 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 oppose a special use permit application for the construction of a solar energy generation and battery storage facility for which he received notice as an abutter. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Chairperson of the West Greenwich Zoning Board of Review, a municipal appointed position, may appear before the West Greenwich Zoning Board of Review to oppose a special use permit application for the construction of a solar energy generation and battery storage facility for which he received notice as an abutter, based upon a finding that the unique facts as represented justify the application of the hardship exception as provided in R.I. Gen. Laws § 36-14-5(e)(1) and the public forum exception as provided in Commission Regulation 520-RICR-00-00-1.2.3. The Petitioner has continuously served as a member of the West Greenwich Zoning Board of Review (“Zoning Board of Review”) since his appointment in 1984 and as its Chair since 1989. He states that he personally owns and resides on property located on Harry L. Andrews Road in West Greenwich, RI, designated as Assessors Plat 8, Lots 15-01 through 15-05, and zoned as RFR-2. The Petitioner represents that in 1998, he purchased a parcel of undeveloped land located at 50 Harry Andrews Road which consisted of approximately 25 acres. He further represents that the land was not subdivided into individual lots at the time of the original purchase. The Petitioner explains that in 2002, he constructed his current residence on a parcel of the land which remained one lot (Lot 15). He states that in 2009, a portion of his Lot 15 was subdivided into a separate lot (Lot 18) that he transferred to his son who has since constructed a house for his family thereon. The Petitioner further states that in 2018, the remaining parcel of land was subdivided into five lots, one of which was transferred to another son who is still awaiting the transfer of the title (Lot 15-02). The Petitioner represents that he is currently the record owner of five of the six total lots. He further represents that those five lots constitute a Town of West Greenwich-approved residential compound plan which was recorded in 2018 in the Land Evidence Records as The Ken Jones Residential Compound. He explains that the residential compound was created to provide for his existing home and homes for his children and grandchildren. The Petitioner states that Lots 15-01 through 15-03 abut a large tract of land that is the subject of a proposal by Revity Energy, LLC (“Revity”) to construct an industrial-scale solar energy generation and battery storage facility. He explains that the tract of land consists of approximately 400 acres with as much as 195 acres allocated for Revity’s proposal. The Petitioner further explains that Revity must obtain regulatory approval, including a special use permit, from the Town of West Greenwich (“Town”) before it may proceed with the proposed solar facility project. The Petitioner represents that the construction of the solar and battery storage facility would have a negative impact on his and his family’s use and enjoyment of their property due to the high level of noise involved in its construction, and that the solar and battery storage facility would adversely impact his family’s future plans for the residential compound as well as its market value. The Petitioner states that the Zoning Board of Review commenced a public hearing on March 9, 2021, to consider Revity’s application for the development, installation, and operation of a solar energy system and battery storage facility on the site. He further states that the public hearing did not conclude but has been continued to the Zoning Board of Review’s April 28, 2021 meeting with a period of public comment. Cognizant of the Code of Ethics, the Petitioner represents that he has recused from prior proceedings regarding this application. However, given the scope and potential negative impact that the solar project will have on the Petitioner and his family’s property, he seeks guidance from the Ethics Commission regarding whether he and/or his attorney may appear and address the Zoning Board of Review to voice his concerns and express his opposition to Revity’s application for a special use permit. Hardship Exception under R.I. Gen. Laws § 36-14-5(e)(1) In general, the Code of Ethics prohibits a public official from representing himself or authorizing another person to appear on his behalf before a state or municipal agency of which the official is a member or by which he is employed. R.I. Gen. Laws Â§ 36-14-5(e)(1); Commission Regulation 520-RICR-00-00-1.1.4(A)(1)(a), (b) & (c) Representing Oneself or Others, Defined (36-14-5016). While many conflicts can be avoided under the Code of Ethics by recusing from participating and voting in certain matters, such recusal is insufficient to avoid section 5(e)’s prohibitions. Absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists, these prohibitions continue while the public official remains in office and for a period of one year thereafter. Section 36-14-5(e)(1) & (4). Upon receipt of a hardship exception, the public official must also advise the state or municipal agency in writing of the existence and the nature of his interest in the matter at issue; recuse himself from voting on or otherwise participating in the agency’s consideration and disposition of the matter at issue; and follow any other recommendations the Ethics Commission may make to avoid any appearance of impropriety in the matter. Section 36-14-5(e)(1)(ii). See, e.g., A.O. 2014-26 (granting a hardship exception to a member of the Barrington Zoning Board of Review (“BZB”) and permitting him to appear before the BZB to request a dimensional variance for his personal residence but requiring that he recuse himself from participating and voting in the BZB’s consideration of his request for relief). The Petitioner’s proposed conduct falls squarely within the Code of Ethics’ prohibition on representing oneself before a municipal agency of which he is a member. Having determined that section 5(e)’s prohibitions apply to the Petitioner, the Ethics Commission will consider whether the unique circumstances represented by the Petitioner herein justify a finding of hardship to permit him to appear before the Zoning Board of Review. The Ethics Commission reviews questions of hardship on a case-by-case basis and has, in the past, considered some of the following factors in cases involving real property: whether the subject property involved is the official’s principal residence or principal place of business; whether the official’s interest in the property was pre-existing to his public office or was recently acquired; whether the relief sought involved an existing business or a new commercial venture; whether the matter involved a significant economic impact; and whether the official’s interests were brought before an agency by a third party. The Ethics Commission may consider other factors and no single factor is determinative. The Ethics Commission has previously granted hardship exceptions in circumstances in which the petitioners were not appearing before their board to seek their own relief, but rather wished to object to a matter brought by a third party. See A.O. 2019-51 (opining that a member of the Barrington Town Council could appear before the Zoning Board and, potentially, the Planning Board and the Town Council, to oppose the proposed subdivision and/or development of a vacant lot directly abutting property jointly owned by him and his spouse, based on both the hardship and public forum exceptions); A.O. 2012-4 (granting a hardship exception to a Westerly Town Council member and permitting him to appear before the Westerly Planning Board, the Westerly Zoning Board and the Westerly Town Council to oppose the proposed development of property directly abutting his personal residence); A.O. 2003-33 (granting a hardship exception to a Smithfield Zoning Board member and his spouse and permitting them to appear before the Zoning Board to testify regarding a petition to locate a church, with a capacity of 2,300 seats and parking for 975 cars, directly across the street from their residential property); and A.O. 2000-45 (granting a hardship exception to a former Jamestown solicitor to appear before the Zoning Board to oppose a zoning application for property abutting his personal residence, based upon the fact that the matter was brought to the Zoning Board through no action of his own and it involved his personal residence). In the present matter, the Petitioner would like to appear before the Zoning Board of the Review, of which he is a member, to object to the issuance of a special use permit to Revity on the bases that the construction and operation of the proposed solar facility would have a negative effect on the use and enjoyment of his and his family’s property as well as its value. The subject application is before the Zoning Board of Review through no action by the Petitioner, but rather by a third party. Accordingly, it is the opinion of the Ethics Commission that the totality of these particular circumstances justifies making an exception to section 5(e)’s prohibitions to allow the Petitioner to appear and represent himself, either personally or through legal counsel, before the Zoning Board of Review in order to address his concerns relative to Revity’s application for a special use permit. However, the Petitioner is required to recuse from all participation and/or voting by the Zoning Board of Review on all matters involving or impacting Revity’s application. Pursuant to section 5(e)(1), and concurrent with his recusal, the Petitioner must inform the other Zoning Board of Review members of his receipt of the instant advisory opinion and of his recusal in accord therewith. Notice of recusal shall be filed with the Ethics Commission consistent with section 36-14-6. Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) The “Public Forum Exception” provides that there shall be no violation of the Code of Ethics “by virtue of any person publicly expressing his  own viewpoints in a public forum on any matter of general public interest or on any matter which directly affects said individual or his  spouse or dependent child.” Commission Regulation 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003) (“Regulation 1.2.3”). In past advisory opinions, the Ethics Commission has advised public officials about their rights under the Public Forum Exception. See 2020-33 (opining that a member of the West Warwick Town Council could address the Planning Board, the Zoning Board, and/or the Town Council, upon recusal, during public hearings regarding a proposed development of property located across the street from his personal residence, provided that he did not receive access or priority not available to any other member of the public); and A.O. 2019-41 (opining that a member of the Middletown Town Council could attend and speak at public hearings before the Middletown Planning Board and/or, potentially, the Zoning Board regarding a proposed development of property located across the street from her personal residence, provided the petitioner did not receive access or priority not available to any other member of the public). The Ethics Commission has applied both the hardship and public forum exceptions in certain circumstances. See, e.g., A.O. 2020-33 and A.O. 2019-51, supra; and A.O. 2018-58 (opining that a member of the Exeter Town Council, who was also a former member of the Exeter Planning Board, could appear before the Planning Board, Zoning Board, and potentially the Town Council to oppose the development of property directly abutting his personal residential property, based on both the hardship and public forum exceptions). Consistent with these prior opinions, and pursuant to the public forum exception found at Regulation 1.2.3, it is the opinion of the Ethics Commission that the Petitioner may address the Zoning Board of Review, upon recusal, during the public hearing regarding Revity’s application for a special use permit involving the solar and battery storage facility project, provided that the Petitioner does not receive access or priority not available to any other member of the public. The Petitioner is further cautioned that he may not use his position in any way to influence members of the Zoning Board of Review regarding this matter. See section 36-14-5(d). Finally, the Petitioner must recuse from any discussions and/or decision-making relative to Revity’s special use permit application in his official capacity as a Zoning Board of Review member. Notice of recusal must be filed consistent with section 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, constitutional provision, charter provision, or canon of professional ethics may have on this situation. Code Citations§ 36-14-5(d) § 36-14-5(e) § 36-14-6 520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016) 520-RICR-00-00-1.2.3 Public Forum Exceptions (36-14-7003)Related Advisory OpinionsA.O. 2020-33 A.O. 2019-51 A.O. 2019-41 A.O. 2018-58 A.O. 2014-26 A.O. 2012-4 A.O. 2003-33 A.O. 2000-45 KeywordsHardship Exception Public Forum Exception The Petitioner states that Zone RFR-2 is defined as Rural Farming Residential with a two-acre and 200-foot frontage minimum.  The Petitioner represents that his Lot 15 later became 15-04  The Petitioner states that Lot 18 later became 18-01.  The Petitioner represents that not all municipalities allow residential compounds and the benefit of recording his property this way is that the lots are serviced by a private road or driveway without the requirement of constructing a public road and are reserved for his children and grandchildren’s use.  The Petitioner states that he is the record owner of Lots 15-01 and 15-03, which are currently vacant, and Lot 15-02 which is occupied by his son.  The Petitioner represents that Revity’s original application for Master Plan approval for the solar project, named Robin Hollow Solar, did not include Assessors Plat 10, Lot 9-3, a 10-acre parcel of land that directly abuts the Petitioner’s property. He explains that Revity later filed an application for Amended Master Plan approval, in part, to include Lot 9-3. He explains that between the time that Revity filed its original application and the time that it filed its application for Amended Master Plan approval, the Town’s Zoning Ordinance was changed to prohibit Lot 9-3 from inclusion in the solar project without a use variance as well as a special use permit. In his February 25, 2021 letter to the Ethics Commission requesting an advisory opinion, the Petitioner represents that the West Greenwich Planning Board (“Planning Board”) is currently considering two advisory opinion requests from the Zoning Board of Review with respect to Revity’s applications for a special use permit and a use variance with respect to Lot 9-3. Since the date of Petitioner’s letter, he learned that Revity has withdrawn its application for a use variance, and, on March 1, 2021, the Planning Board issued an advisory opinion to the Zoning Board of Review as to the special use permit only.  The Petitioner represents that if the public hearing is not concluded on April 28, 2021, it may be continued again to another date.