Advisory Opinion No. 2007-41 Advisory Opinion No. 2007-41 Re: Joseph S. Burchfield, Town Council President QUESTION PRESENTED The petitioner, Town Council President for the Town of North Providence, a municipal elected position, requests an advisory opinion as to whether he may participate in hearings and voting on an application for a zoning change to property abutting the Lees Farm Commons condominium development (“the development”), given that the petitioner owns property at 11 Quail Ridge Road, North Providence, which is located within the development. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, Town Council President for the Town of North Providence, may not participate in hearings and voting on an application for a zoning change to property abutting the Lees Farm Commons condominium development, given that the petitioner owns property at 11 Quail Ridge Road, North Providence, which is located within the Lees Farm Commons development. Said development abuts the property that is the subject of the zoning application and the petitioner holds an equal undivided property interest in all of the commonly owned property contained therein. As such, absent some evidence that official action would not affect the financial interests of the public official, the Commission applies a rebuttable presumption that the petitioner will be financially impacted by official action concerning abutting property. The petitioner is the President of the North Providence Town Council. The petitioner states that in 2002 he purchased a home at 11 Quail Ridge Road, in North Providence. This property is located in a condominium development called Lees Farm Commons (“the development”). The petitioner states that the development consists of homes that contain two townhouse units each; the entire development contains approximately 50 such units. The petitioner represents that as a condominium owner, he owns an undivided interest in common with the other unit owners in the common property located throughout the development. The petitioner represents that an entity named Generalton Realty, L.L.C. (“Generalton”), has petitioned the North Providence Town Council for a zoning change to property referred to as Tax Assessor’s Plat 22, Lot 852. The petitioner states that the proposed zoning change is from an existing open space zone to a residential zone. He states that he believes that Generalton intends to develop the area in a manner consistent with the adjacent residential area in which his property is located. The petitioner states that the property that is the subject of the zoning petition does not abut his specific property located at 11 Quail Ridge Road, but does abut the Lees Farm Commons development as a whole. The petitioner further states that the boundary for Plat 22, Lot 852, is located approximately 1200 feet from his individual condominium unit. The petitioner states that he received an abutter’s notice of public hearing sent to all property owners of record of land within 200 feet of the subject property, as required by R.I. Gen. Laws § 45-24-53(d)(1) and the North Providence Town Code § 35-502(B)(2). The petitioner states that some of the commonly held property in which he holds an undivided interest, located throughout Less Farms Commons, falls within 200 feet of the subject property. Finally, the petitioner represents that he has spoken with real estate professionals since his initial request for an advisory opinion. He represents that these experts have advised him that the potential rezoning of Tax Assessor’s Plat 22, Lot 852 from its current open space zone to a residential zone, followed by the development of that property into a residential area in a manner consistent with the development in which the petitioner himself lives, creates a reasonably foreseeable direct financial impact on the petitioner’s own property interests in 11 Quail Ridge Road and his undivided interest in the common areas of the Lees Farm Commons development. Furthermore, the petitioner himself has adopted this belief. Given these representations, the petitioner requests an advisory opinion as to whether he may participate, in his capacity as a member of the Town Council, in the hearings and voting on Generalton’s application for a zoning change. 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. See 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 though his position to obtain financial gain, other than that provided by law, for himself, business associate(s), or any person within his family. Applying these provisions of the Code to this petitioner’s specific set of circumstances, the focus of inquiry becomes whether the petitioner’s property interests in the development will be financially impacted, to either his benefit or to his detriment, by the proposed zoning change. 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. 2007-17; A.O. 2006-52; A.O. 2006-49;A.O2006-48; A.O. 2002-16; A.O. 2001-19; A.O. 2001-4; A.O. 2000-90; A.O. 99-148; A.O. 99-99. 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 some evidence that official action would not affect the financial interests of the public official, either positively or negatively. The Commission has found evidence sufficient to rebut this presumption on many occasions. See, e.g., 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. 99-92 (presumption rebutted where only a small fraction of petitioner’s backyard was within 200 feet of area at issue, the proposed cul-de-sac would not be visible from her property, and the petitioner represented that there would be no financial impact on her property); A.O. 98-66 (presumption rebutted where height variance request was minor, building being constructed on abutting property was 1,600 feet from petitioner’s property and not visible from it, and the petitioner represented 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). 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 e.g., A.O. 2003-13 (opining that, under the facts as presented by the petitioner, there should be no presumption of a financial impact as the petitioner was not an abutter, his property neither adjoined the subject property, nor was within 200 feet of the property, but rather, was approximately 3000 feet away from his land); A.O. 2002-30 (generally discussing advisory opinions in which the Commission allowed officials to participate in decisions regarding property near to, but not abutting, the petitioners’ properties, and opining that, absent some evidence indicating a reasonable forseeability of financial impact, there was no presumption of a financial impact on a Jamestown Town Council member who was not an abutter of land that was the subject of a possible parking garage, and thus, she was not prohibited from participation and voting on the matter). For the purposes of this advisory opinion, however, the issue of whether the petitioner is an abutter of the lot referred to as Tax Assessor’s Plat 22, Lot 852, is more complex. The word “abutter” is a term of art, defined in both the Rhode Island General Laws and the Town of North Providence Town Code 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); North Providence Town Code § 35, Art. XIII. State law and the North Providence Town Code both require 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 200 feet of the perimeter of the area proposed for change. See R.I. Gen. Laws § 45-24-53(c)(2); North Providence Town Code § 35-502. In this instance, the petitioner represents that his specific condominium unit is not within 200 feet of the property that is petitioning for a zoning change; rather, the petitioner estimates that his unit is approximately 1200 feet from that property. However, the petitioner does own an undivided interest in the common areas of the condominium development with the other members of the development’s condominium association. As such, he did receive an abutter’s notice of the hearing on the application for a zoning change from Generalton; however, whether the petitioner is an abutter entitled to notice under state law and the North Providence Town Code is only one factor to be considered, and alone is not dispositive of any issue. See A.O. 2002-65 (opining that the issue of the petitioner’s entitlement to an abutter’s notice was not dispositive of the petitioner’s request as the petitioner’s property was in close enough proximity to the subject property to prohibit his participation in the Lincoln Planning Board’s consideration of the proposed adjacent development). In past opinions, the Commission has not always utilized a bright line cut-off of 200 feet in determining whether a petitioner could participate in discussions and voting on matters involving zoning and proposed subdivision plans on adjacent property. See e.g., A.O. 2002-65 (finding that, absent evidence that actions by the Lincoln Planning Board would not affect the petitioner’s financial interests, the petitioner must recuse from participation and vote on proposed development as his property was approximately 205-210 feet from the subject property); A.O. 97-63 (opining that, a petitioner living within 1,000 feet of a proposed development could not participate in discussions or vote on the proposed subdivision, as the decision would likely have a financial impact on his property valuation); A.O. 94-42 (opining that the Vice Chairman of the Planning Board for the Town of Bristol was prohibited from participating in discussions about a proposed zoning change to property abutting the condominium complex in which his daughter owned a unit, even though his daughter’s specific unit did not abut the subject property). In summary, this petitioner’s request for an advisory opinion contains a number of factors that weigh in favor of his recusal from participation and voting on the proposed zoning change to Tax Assessor’s Plat 22, Lot 852, including: the petitioner’s undivided interest in the common areas located throughout the development, some of which fall within the 200 foot proximity ordinarily utilized to determine abutting property; prior advisory opinions, particularly A.O. 94-42, in which the Commission opined that the petitioner had to recuse from participation in a matter involving subject property abutting his daughter’s condominium complex, even though the property did not abut her particular unit; the petitioner’s receipt of an abutter’s notice; and finally, the absence of any evidence to rebut the presumption of some financial impact on his property as a result of official action to abutting property, coupled with the petitioner’s own representation that based on the advice of real estate professionals, he believes it is reasonably foreseeable that the proposed rezoning to the subject property may have a direct financial impact on his property interests. However, there are also a number of factors that weigh in favor of the petitioner not being prohibited from participating in the discussion and voting on the proposed zoning change, including: the petitioner’s representation that his specific condominium unit is approximately 1200 feet from the subject property; the petitioner’s representation that he does not foresee a financial impact on his property as a result of the proposed zoning change, given that the proposed change involves a development similar in character to the one in which he resides; and finally, prior advisory opinions finding that petitioners need not recuse when it is not reasonably foreseeable that their property will be financially impacted by official action to adjacent property that is more than 200 feet away. See, e.g., A.O. 2003-13 (opining that a member of the Exeter Town Council may participate and/or vote in matters regarding property located approximately 3000 feet from the petitioner’s property); A.O. 98-19 (finding that the petitioner may participate in the consideration of a petition for variance regarding a portable spring water facility given that, while the petitioner’s property technically abutted the subject property, the proposed portable spring water facility would be located at the far end of the shopping center, an estimated 2000 feet from the petitioner's business). After considering all of the above representations, prior advisory opinions, and applicable provisions of the Code of Ethics, the Commission concludes that the petitioner may not participate in hearings and voting on Generalton’s application for a zoning change to property abutting the Lees Farm Commons condominium development, given that the petitioner owns a residence within the abutting development, and he holds an equal undivided property interest in the common property located throughout the abutting development. Furthermore, we are in receipt of no information sufficient to rebut the presumption that the petitioner’s abutting property will be financially impacted by the proposed zoning change and the petitioner himself believes that the proposed action may have a direct financial impact on his property interests. Notice of recusal must be filed with the Town Council and the Ethics Commission pursuant to R.I. Gen. Laws § 36-14-6. Code Citations : 36-14-5(a) 36-14-5(d) 36-14-7(a) Regulation 36-14-6001 Regulation 36-14-7003 Related Advisory Opinions : A.O. 2007-17 A.O. 2006-49 A.O 2006-48 A.O. 2003-13 A.O. 2002-65 A.O. 2002-30 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. 98-58 A.O. 98-19 A.O. 97-63 A.O. 94-42 Keywords : Financial Interest Property Interest Recusal