Advisory Opinion No. 2010-19 Rhode Island Ethics Commission Advisory Opinion No. 2010-19 Re: Greg Yalanis, R.A. QUESTION PRESENTED The Petitioner, an alternate member of the Newport Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he may appear before the Zoning Board to appeal the denial of a building permit to refurbish space within a residential rental property for commercial rental use. RESPONSE It is the opinion of the Ethics Commission that the Petitioner, an alternate member of the Newport Zoning Board of Review, may appear before the Zoning Board to appeal the denial of a building permit to refurbish space within a residential rental property for commercial rental use, based on a finding that the unique facts as represented justify application of the hardship exception provided for in R.I. Gen. Laws § 36-14-5(e)(1). The Petitioner is an alternate member of the Newport Zoning Board of Review (“ZBR”). The Petitioner represents that in his private capacity, he owns a multi-family rental property in Newport, which is not his current place of residence, and which contains three residential rental units and an unused commercial storefront space. He states that the property is located at 334 Spring Street, which is in an R-10 zone which does not allow for commercial use. He states that while the storefront portion of the house had been used for commercial activity for over 150 years, the last known commercial activity occurring there was back in 1995, prior to the Petitioner’s purchase of the property in 1997. He states that the space has been vacant since 1997 and left independent from the rest of the building structure both physically and by use. The Petitioner states that he recently decided to prepare the vacant storefront space for use as a commercial rental unit. He states that he applied for a building permit to refurbish the space, but the zoning office denied his request due to guidelines set forth in the zoning ordinance. He further states that the ordinance no longer recognizes any grandfathered commercial use due to the fact that the space has been out of use for a period of longer than a year. Alternatively, the Petitioner was considering applying to the Zoning Board for a use variance that would allow him to change the storefront space into a residential rental unit, but has since withdrawn that application. The Petitioner represents that it would require a major financial undertaking to renovate the unused storefront space in order to attach it to one of the three pre-existing rental units and, furthermore, that it would be structurally difficult to do. Additionally, he states that it wouldn’t be practical or make good economical sense to attach the unused space to one of the other units, as those units are complete in and of themselves and wouldn’t be enhanced by what he describes as the “wasteful addition” of the unused space, which has its own external entrance and has a floor elevation which is 30-36 inches lower than the adjacent entries and living areas. Given this set of facts, the Petitioner requests an advisory opinion regarding whether he may represent himself before the ZBR to appeal the denial of his application for a building permit. Under the Code of Ethics, a public official may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). Additionally, he may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. R.I. Gen. Laws § 36-14-5(d). Most relevant to the instant question is section 5(e) of the Code, which prohibits a public official from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1) and (2). Absent an express finding of hardship by the Commission, section 5(e)'s prohibition continues while the official remains in office, and for a period of one year thereafter. R.I. Gen. Laws § 36-14-5(e)(1) and (e)(4). Additionally, the prohibition on representing oneself also includes authorizing or directing another person to participate in the presentation of evidence or arguments for the purpose of influencing the judgment of one's own agency. See Regulation 36-14-5016. Section 5(e)’s prohibitions are stricter than virtually any other provisions in the Code. In most instances under the Code, public officials and employees may address potential conflicts of interest by declining to participate in related discussions and votes. This is not the case with section 5(e). Absent an express finding by the Commission that a hardship exists, the prohibitions in that section are absolute. As an initial matter, the Petitioner's proposed conduct falls squarely within section 5(e)'s prohibition on representing oneself before a municipal agency for which he is a member. The Petitioner wishes to appeal the denial of an application for a building permit from the zoning official, and to do so must appear before the ZBR, of which he is a member. Having determined that section 5(e) prohibits the Petitioner's application to the ZBR at this time, the Commission next considers whether the unique circumstances represented herein justify a finding of hardship to permit the Petitioner to proceed before the ZBR. In considering questions of hardship on a case by case basis, the Commission has focused on a totality of the circumstances including, but not limited to, the following factors in 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 public office or is recently acquired; and whether the relief sought involves a primarily commercial venture. Under a totality of the circumstances analysis, no single factor is determinative. While the Commission has not previously considered a fact pattern precisely on point with that presented by this Petitioner, it has considered facts and granted hardship exceptions in circumstances that present somewhat analogous situations. In Advisory Opinion 2009-18, the Commission opined that a member of the Little Compton Town Council may appear before the Little Compton Zoning and Planning Boards regarding a special use permit, based on a finding of hardship, in order to be able to take down the current building on his property, which was not his residence, and then rebuild it, with the intention of resurrecting a small marine supply store previously operated from the building, since the circumstances justified a finding of hardship under R.I. Gen. Laws § 36-14-5(e)(1). Additionally, in Advisory Opinion 2001-30, the Commission concluded that a Providence Senior Assistant City Solicitor could appear before the Providence Historic District Commission (HDC), Zoning Board and other municipal agencies regarding repairs and modifications to a rental property that he had owned for several years. The Commission’s finding of hardship was based primarily upon two circumstances: (1) Without the approval of the HDC, the Petitioner’s property would fall into disrepair, and (2) the Petitioner planned to establish his private law offices within the first floor of the property. To achieve the latter, the Petitioner had to appear before the Zoning Board to request a change to add a second use as professional. See also A.O. 2007-51 (granting a hardship exception to a Portsmouth Town Council member who sought to obtain a variance for property that she had owned and used for over twenty years, that was directly adjacent to her residence, with the intended use of the subject property being as a residence for her adult son); A.O. 2006-34 (opining that representatives of a member of the Narragansett Town Council may appear on his behalf before the Narragansett Planning Board and/or Zoning Board for design and site plan review for proposed development of property owned by the petitioner in the Town of Narragansett, based on the fact that the Petitioner's legal interests in the subject property (leasehold and purchase option) are longstanding and predate his election to the Town Council and that the proposed development is a permitted use in an appropriately zoned area, requiring only site and design review); A.O. 2005-32 (granting a hardship exception to a Westerly Planning Board member to appear before the Planning Board to request a zone change which would allow the Petitioner to relocate his business, an ice cream shop, notwithstanding that his property rights did not pre-exist his appointment to the Planning Board); A.O. 2004-33 (opining that a member of the Exeter Town Council, who was a licensed mental health counselor, could appear before the Exeter Planning Board to request a special use permit to establish a home-based counseling business on his residential property); A.O. 98-97 (granting a hardship exception to a Glocester Planning Board member who sought a variance and special use permit to sell produce from a barn located on the same property as his principal residence). But see A.O. 2000-41(declining to apply a hardship exception to an Exeter Zoning Board member who sought to generate additional income by entering into a contract to locate a cellular communications tower on his residential property as the proposed commercial venture served only to generate additional income for the Petitioner; the Commission opined that allowing a hardship exception under such circumstances would, in effect, render Section 5(e)(1)’s prohibitions a nullity). Here, the Petitioner’s ownership interest in the property, acquired in 1997, long precedes his appointment to office in 2009. While the matter at hand does involve a potential commercial rental, the Petitioner represents that the alternatives available to make the space usable would either require that he obtain a special use permit to convert the space into a residential rental, which would also require him to appear before the ZBR, or alternatively, a substantial financial and structural undertaking to attach the space to one of the current rental units. Finally, a commercial storefront rental, according to the Petitioner’s representations, would be akin to, and consistent with, the previous use that was made of the space at issue for approximately 150 years. Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Petitioner may appear before the Newport Zoning Board of Review regarding the appeal of the zoning official’s denial of his application for a building permit for his property, based on a finding that this particular situation constitutes a hardship exception as provided in R.I. Gen. Laws § 36-14-5(e)(1). Code Citations: § 36-14-5(a) § 36-14-5(d) § 36-14-5(e) Regulation 36-14-5016 Related Advisory Opinions: A.O. 2009-18 A.O. 2007-51 A.O. 2006-34 A.O. 2005-32 A.O. 2004-33 A.O. 2000-41 A.O. 98-97 Keywords: Hardship Exception