Advisory Opinion No. 2005-7 Re: Edward Yazbak QUESTION PRESENTED: The petitioner, a North Smithfield Town Council member, a municipal elected position, requests an advisory opinion as to whether he may participate in and vote on a change to the Slatersville Mill’s zoning designation, given the proximity of his commercial property to the Mill. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, a North Smithfield Town Council member, a municipal elected position, may not participate in and vote on a change to the Slatersville Mill’s zoning designation, given the proximity of his commercial property to the Mill. The petitioner represents that he is a North Smithfield Town Councilor. He informs that he was elected to this position in 2001 and re-elected to it in 2004. He advises that he is a self-employed certified public accountant operating his practice under the corporate name of Yazbak & Company, LTD, of which he is 100% owner. He advises that his work office is located at 11 Main Street, Slatersville Village, North Smithfield, which is at the corner of Main Street and Route 5 (locally known as Railroad Street). The petitioner also informs that this office is located in a building owned by Y & Y Enterprises, LLC, of which he holds a 70% membership interest and his brother owns the remaining interest. The petitioner advises that Y & Y Enterprises, LLC, rents office and storage space located on 11 Main Street to Yazbak & Company, LTD. The petitioner represents that the building on 11 Main Street contains other commercial space. The petitioner further advises that this property is located diagonally across from the historic Slatersville Mill. He advises that the current owners of the Mill property entered into a purchase and sale agreement to sell their property to real estate developers. He represents that the potential purchaser plans to redevelop the parcel into mixed use and/or residential property while preserving the historical heritage and existing building facades of the Mill. The petitioner informs that the Town of North Smithfield will soon be petitioned to change the Mill property’s land use zoning from manufacturing to either 100% residential or a mixed-use designation locally referred to as a “Village Overlay District.” Additionally, the petitioner represents that he will be receiving abutter’s notice of this change because his property is located within a 1,000-foot radius of the Mill. He advises that these properties do not share a common border and are separated by Main Street to the North and Route 5 to the West from the Mill. The petitioner further informs that the Town of North Smithfield owns a parcel, used as a small park, on the opposite corner of Route 5 and Main Street located between his property and the Mill. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his 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 his 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 his position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, business associate or any person within his family. Applying these provisions to the facts as presented, the primary issue is whether the petitioner’s property will be financially impacted by the zoning designation change to the Mill property. If a financial impact, positive or negative, is reasonably foreseeable, then the petitioner is required to recuse himself from both participating in and voting on the issue. The Commission has applied, in previous opinions, a rebuttable presumption that a public official will be financially impacted by official action concerning his abutting property. See A.O. 2002-16, A.O. 2001-19, A.O. 99-148, A.O. 99-92, A.O. 98-66, A.O. 98-56, A.O. 98-35, A.O. 98-19, A.O. 97-63. Applying this presumption, the Commission has frequently stated that a public official may not participate in decisions concerning abutting property absent sufficient evidence that the official action would not affect the financial interests of the public official. In past Advisory Opinions, public officials have provided varied evidence to demonstrate that their property will not be financially impacted by decisions affecting abutting property. This evidence has ranged from a Summary Appraisal Report, in accordance with the reporting requirements set forth under the Uniform Standards of Professional Appraisal Practice for Summary Appraisal Reports, to a letter from a real estate appraiser. This evidence has also included images of the properties at issue (maps, photographs, and drawings) and specific representations by the petitioner. Compare A.O. 99-148 (the petitioner submitted his abutter’s notice and a resume of a Rhode Island Certified General Appraiser who provided a letter opining no financial impact existed based on an inspection of the properties) with A.O. 98-167 (the petitioner submitted generally as follows: (1) a letter from the town clerk on the applicable town ordinances on abutter’s notice, (2) a resume of a Rhode Island Certified General Appraiser who provided a letter in which he opined that no financial impact existed, and (3) a resume of another appraiser, designated as a SRA (Senior Residential Appraiser of the Appraisal Institute), who created a Summary Appraisal Report on the properties at issue that opined no financial impact existed). Here, the petitioner provides the Commission with evidence and representations aimed at rebutting the presumption of financial impact as an abutter. The Commission must determine whether the evidence and representations are sufficient to allow him to participate in and vote on the Town Council’s decision to change the Mill property’s land use zoning designation. As evidence to overcome the presumption of financial impact, the petitioner provides a letter from Thomas O. Sweeney. The petitioner informs that Mr. Sweeney is a real estate appraiser with offices in Providence, Rhode Island. Mr. Sweeney’s letter states that he holds a SIOR (Society of Industrial and Office Realtors) designation. Mr. Sweeny asserts in his letter that he based his opinion on an inspection of the area surrounding the properties. Therein, Mr. Sweeney acknowledges that the redevelopment will have a “general positive effect that all of the properties in the Slatersville area and the Town in general will receive based on the investment being made in the project.” Nonetheless, Mr. Sweeney states in his letter that “the difference in topography, as well as the immediate adjacent uses, make the properties essentially located in different districts.” Despite acknowledging therein that “properties immediately adjacent to the property may be directly impacted,” Mr. Sweeney opines that the petitioner’s non-adjacent property will “feel no direct impact” from the zoning designation “other than that shared by other commercial properties throughout the town.” In addition to appraiser’s opinions, past petitioners have made various representations to the Commission to assist in the determination of whether a financial impact exists. Such representations have included, but are not limited to, the nature of the public action being requested, the specific location of and distance between the properties at issue, the zoning designations of the properties, the impact of zoning changes, and the structures located between the properties. See, e.g., A.O. 2002-30 (these representations included the distance between the petitioner’s land and the proposed locations, the buffering of the petitioner’s own land, the existing landfill between the petitioner’s residence and the proposed locations, and the petitioner’s belief that significant traffic increases would result), A.O. 99-92 (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 the petitioner’s property, and the petitioner represented 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 the petitioner represented that the variance at issue would have no financial impact on his property). Here, the petitioner represents that his property is not adjacent to the Mill and does not share a border with the Mill. He advises that two streets and a town park separate the Mill from his property. The petitioner further informs that the current owner of the Mill and the potential new owners of the Mill are non-related entities/persons to himself directly, to Yazbak & Company, LTD, or to Y & Y Enterprises, LLC. Additionally, the petitioner submits a map of the properties, attached hereto. On the map, Y & Y Enterprises, LLC, is located on lot 193, the Mill is located on lot 38A, and the town park is located on lots 22 and 409. Advisory Opinion 99-148 is most similar, in facts and evidence, to the issues raised herein. At issue there was whether another North Smithfield Town Councilor, Daniel J. O’Brien, could participate in or vote on a zoning change to a property to which he was an abutter. The petitioner’s residence was located within a 1,000-foot radius of the subject property and he received abutter’s notice of the proposed zoning change. The zoning change was from suburban residential to neighborhood business, and the petitioner’s abutting property was zoned residential. In A.O. 99-148, the Commission opined that the petitioner could participate in the Town Council actions on the proposed zoning change, despite being an abutter, because he had rebutted the financial impact presumption with independent evidence. The evidence provided included a letter from a real estate appraiser. In the letter, the appraiser opined that the petitioner would not be financially impacted by a zoning change to the abutting parcel of land. The appraiser based his opinion, according to his letter, on an inspection of the properties at issue and an examination of the plans for the proposed zoning change. Despite the similarities of this request to A.O. 99-148, the Commission observes that there are noteworthy evidentiary differences between the two. In A.O. 99-148, the petitioner provided the Commission with more evidence. Specifically, the petitioner there provided the resume of the real estate appraiser, listing that he was a Rhode Island Certified General Appraiser. The petitioner in A.O. 99-148 also provided his abutter’s notice, which contained a reduced-sized map of the surrounding area with several relevant zoning designations. Furthermore, the appraiser in A.O. 99-148 provided the Commission with more detailed information on financial impact in his letter. The appraiser in A.O. 99-148 noted in his letter that he based his opinion on both an inspection of the properties at issue and an examination of the plans for the proposed zoning change. Moreover, in A.O. 99-148, the appraiser pointed to a specific factor to support his opinion that the petitioner’s property would not be impacted by the zoning change of the abutting property to a neighborhood business designation. Specifically, the appraiser noted in his letter that the petitioner’s property already had property within 350 feet zoned as neighborhood business, and that such zoning had not previously impacted the petitioner’s property. Here, however, Mr. Sweeney states in his letter that he based his opinion merely on an inspection of the area surrounding the properties. Additionally, in his letter, Mr. Sweeney neither provides such specific information regarding financial impact, nor provides his qualifications as a real estate appraiser. The Commission opines that such evidence is too cursory to rebut the presumption of financial interest. To determine whether such an interest is rebutted, numerous considerations are appropriate. Given a zoning change is at issue, it is pertinent that the evidence presented by the abutter include an evaluation of the zoning land use of the area surrounding the properties, the plans of the proposed zoning change, and the impact of said plans on the petitioner’s property. The letters provided from the real estate appraisers, here and in A.O. 99-148, address some such considerations of financial impact, but do so generally and provide the Commission with few, if any, details about such factors. Specifically, the appraiser letter here does not include enclosures on supporting data. For example, the appraiser here provides the Commission with neither the proposed zoning changes to the Mill property nor an analysis of the impact of said zoning changes. Also, it is unknown whether Mr. Sweeney simply went to the properties and viewed them to form his opinion, or, whether he also reviewed the zoning changes to the Mill and the zoning uses of the surrounding areas. Importantly, it is also unknown what certification or experience Mr. Sweeney has as a real estate appraiser. Accordingly, in the spectrum of possible evidence a petitioner could provide to the Commission on financial impact, the petitioner’s real estate appraiser letter provides evidence on the lower end of quantity. Despite the petitioner’s representations and the aforementioned evidence, the petitioner has not provided the Commission with sufficient evidence to rebut the presumption that he has a financial interest in the Mill’s zoning change as an abutter. The map he provided, attached hereto, portrays the Mill property as the largest lot in the neighborhood and reveals that the petitioner’s property is located in close proximity to the Mill. Consequently, it seems foreseeable that the redevelopment of the Mill will have an impact on the petitioner’s abutting property. Without more detailed evidence, the Commission opines that the presumption holds that the petitioner has a financial interest in the zoning change to the Mill property as an abutter. It is the opinion of the Rhode Island Ethics Commission that the petitioner, a member of the North Smithfield Town Council, a municipal elected position, may not participate in or vote on matters regarding the change to the Slatersville Mill’s zoning designation since it is reasonably foreseeable that he, as an abutter to the Mill, may derive a direct financial gain or suffer a direct financial loss as a result of the Town Council’s decision on the matter. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Code Citations: 36-14-5(a) 36-14-5(d) 36-14-6 36-14-7(a) Regulation 36-14-6001 Related Advisory Opinions: 2002-30 2002-16 2001-19 99-148 99-92 98-167 98-66 98-56 98-35 98-19 97-63 Keywords: Property interest