Advisory Opinion No. 2002-30

Re: Norma Willis

QUESTION PRESENTED

The petitioner, a Jamestown Town Councilor, a municipal elected position, requests an advisory opinion as to whether she may participate and vote in the Council’s determination of a location for a highway garage, given the proximity of her residence and land to two of three proposed locations.

SUMMARY

It is not reasonably foreseeable that the petitioner would derive a direct financial gain or suffer a direct financial loss as a result of the Town Council’s determination of the highway garage’s location. Accordingly, the Code of Ethics does not prohibit the petitioner from participating and voting in the Council’s consideration of this matter.

DISCUSSION

1. Facts

The petitioner is a Jamestown Town Councilor, elected in 2001. She represents that for several years the Town of Jamestown has discussed possible locations for a new public works facility, a highway garage. She states that there are three possible locations (Options 1, 2 & 3) for the facility, two on the North side of the island near the transfer station, and one on the East side. The petitioner represents that before being elected to office, and since at least 1998, she had been publicly opposed to locating the garage on the North side of the island under Options 1 or 2, but preferred Option 3’s more central location. In fact, she states that she campaigned under this very issue.

The petitioner owns an 18-acre parcel of land in Jamestown fronting the West side of North Main Road. Her residence sits on 4 developed acres fronting Narragansett Bay on the westerly end of the parcel. She represents that the remaining fourteen acres of her property consist of undeveloped land with deciduous and evergreen trees creating a buffer between her residence and North Main Road. The location of her property is illustrated in a portion of a map provided by the petitioner and labeled as Exhibit A. (Exhibits A-D refer to exhibits submitted by the petitioner in support of her request for an opinion. These exhibits are included in the Commissioners’ open meeting folders along with the petitioner’s request letter.)

To the East and directly across from the petitioner’s property on the East side of North Main Road is the Town’s former landfill and the entrance to the Town’s transfer station. The landfill is comprised of four lots, numbered 48 through 51 and shown on the maps labeled Exhibits A & B. Option 2 for the location of the highway garage is on lot 48 at the East end of the landfill, approximately 840 feet from the entrance to the transfer station and approximately 900 feet from the entrance to the petitioner’s land across North Main Road. See Exhibits A & C. Option 1 for the location of the highway garage is on lot 47, directly abutting and to the East of Lot 48 and approximately 1000 feet from the entrance to the petitioner’s land. See Exhibits A & C. Option 3 is not within the vicinity of the petitioner’s land and residence.

In the interest of full disclosure, the petitioner brings to the Commission’s attention the fact that in 1998 she was 1 of some 400 people who signed a petition opposing the location of the garage at or near the transfer station (Options 1 and 2). Some of the concerns raised in that petition are the widening of North Main Road, increased traffic from highway trucks and school buses, storage of hazardous material in a residential neighborhood, devaluation of surrounding property, loss of peace and quiet, non-central location, lack of clean and sufficient water to supply the garage in that area, absence of a sewer tie-in and the need for construction of an access road. See Exhibit D.

The petitioner claims that many particulars of the project have changed since 1998, so that many of the concerns raised in the petition at that time are no longer applicable. For instance, the petitioner states that there is no longer any consideration of widening North Main Road, of constructing a new access road or of parking any school buses on the property. She further states that a consultant recently reported that the proposed garage would put 8 vehicles on the road making 5 trips per day, an insignificant increase in traffic according to the petitioner. In sum, the petitioner represents that she does not believe her own property would be devalued under Options 1 or 2, particularly given the fact that a landfill and transfer station already exist between the two proposed locations and her property. As to the existence of the landfill property, however, the petitioner notes that the Rhode Island Department of Environmental Management has ordered the Town to remediate the landfill, requiring major buffering along the road, retention ponds, and vegetation over the entire parcel and substantial landscaping.

2. Analysis

Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of her duties or employment in the public interest. See R.I. Gen. Laws §§ 36-14-5(a). An official will have an interest in substantial conflict with her official duties if it is reasonably foreseeable that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of the public official's activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. R.I. Gen. Laws § 36-14-7(a); Commission Regulation 36-14-6001. Section 36-14-5(d) further prohibits an official from using her position or confidential information received though her position to obtain financial gain, other than that provided by law, for herself, business associate or any person within her family.

Applying these provisions to the facts as presented, the primary issue is whether the petitioner’s property will be financially impacted by the Town Council’s decision as to the location of the highway garage. If a financial impact, positive or negative, is reasonably foreseeable, then the petitioner is required to recuse from participation and vote on the issue.

In past opinions, the Commission has applied a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property. See A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90; A.O. 99-148; A.O. 99-99; A.O. 98-92; A.O. 98-66; A.O. 98-56; A.O. 98-35; A.O. 98-19; A.O. 97-76; A.O. 97-63. Applying the presumption, the Commission frequently has stated that a public official may not participate in decisions concerning abutting property absent some evidence that official action would not affect the financial interests of the public official.

Instances in which the presumption was found to be sufficiently rebutted include the following: A.O. 99-148 (presumption rebutted where petitioner provided independent evidence from a licensed appraiser that his property would not be financially affected by proposed zoning change); A.O. 98-167 (presumption rebutted in liquor license consideration where, although petitioner is an abutter for zoning purposes, he is not an abutter for liquor licensing purposes and represents that there will be no financial impact on his property); A.O. 98-92 (presumption rebutted where only a small fraction of petitioner’s back yard is within 200 feet of area at issue, the proposed cul-de-sac would not be visible from her property and she represents that there will be no financial impact on her property); A.O. 98-66 (presumption rebutted where height variance request is minor, where building being constructed on abutting property is 1,600 feet from petitioner’s property and not visible from it, and he represents that variance would have no financial impact on his property); A.O. 98-58 (presumption rebutted where petitioner represented that he did not believe a zoning change would financially impact his property); A.O. 98-35 (presumption rebutted where height variance request is minor, subject dwelling is not adjacent to petitioner’s property and he represents that variance would have no financial impact on his property); A.O. 98-19 (presumption rebutted where petitioner’s business is located across the street and 2,000 feet from property seeking variance, and property is part of shopping center that already contains drive-up business).

In this matter, however, the petitioner is not an abutter of the lots proposed as Options 1 and 2. The word “abutter” is a term of art, defined in both the Rhode Island General Laws and the Town of Jamestown Zoning Ordinance as “[o]ne whose property abuts, that is, adjoins at a border, boundary, or point with no intervening land.” R.I. Gen. Laws § 45-24-31(1); Jamestown Zoning Ordinance § 103. State law and the Jamestown Ordinance also requires that notice of a proposed amendment to a zoning ordinance be sent to all owners of real property whose property is located in or within not less than two hundred feet (200') of the perimeter of the area proposed for change. See R.I. Gen. Laws § 45-24-53(c)(2); Jamestown Zoning Ordinance § 1703(C)(2).

Under the facts as represented by the petitioner, her land neither adjoins the lots upon which the highway garage may be located, nor is her land within 200 feet of either lot. Rather, the petitioner claims that the lots designated as Option 1 and 2 are 1,000 and 900 feet away from her land. Since the petitioner is not an abutter, there should be no presumption of a financial impact.

Just as the Commission has presumed a financial impact for abutting property, the Commission appears to have applied the opposite presumption – no financial impact – in cases where an official’s property is near but not abutting the subject property. See A.O. 98-57 (in absence of any evidence of financial impact, petitioner could participate in special use permit for land near, but not abutting, relative’s property); A.O. 96-63 (member of the North Smithfield Town Council could participate in a decision regarding the removal of a stipulation on a lot within the subdivision more than 200' from his property since there was no evidence that his property would be impacted financially by the decision). Seee.g., A.O. 95-42 (petitioner must recuse on proposed zone change to property adjacent to, but not abutting, official’s daughter’s residence, where petitioner represents that proposed change would affect daughter’s financial interests).

Given the fact that the petitioner is not an abutter of Options 1 or 2, there is no presumption of a financial impact. Rather, based upon the past advisory opinions discussed above, absent some evidence indicating a reasonable forseeability of financial impact, the Code of Ethics does not prohibit the petitioner from participating and voting with the Town Council as to the location of the parking garage.

Here, the petitioner has conscientiously provided the Commission with substantial evidence relating to the issue of financial impact, including maps, drawings, reports and other documents. Facts and representations favoring a finding of no financial impact include, but are not limited to, the distance between the petitioner’s land and the proposed locations; the buffering of the petitioner’s own land, as well as an existing landfill between the petitioner’s residence and the proposed locations; and also the petitioner’s belief that the addition of 8 vehicles making 5 trips per day from the proposed garage locations does not amount to a significant traffic increase.

CONCLUSION

It is not reasonably foreseeable that the petitioner will derive a direct financial gain or suffer a direct financial loss as a result of the Town Council’s determination of the highway garage’s location. Accordingly, the Code of Ethics does not prohibit the petitioner from participating and voting in the Council’s consideration of this matter.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)
36-14-6001

Related Advisory Opinions:

2002-16
2001-19
2001-4
2000-90
99-148
99-99
98-167
98-92
98-58
98-35
98-19
97-76
96-63
95-42

Keywords:

Property interest