Advisory Opinion No. 98-35

Re: Christopher P. Morra

QUESTION PRESENTED

The Petitioner, an East Providence Zoning Board of Review member, a municipal appointed position, requests an advisory opinion as to whether he may participate in discussions about or vote on a zoning petition seeking a height variance for a dwelling located within 200 feet of his residence.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, an East Providence Zoning Board of Review member, a municipal appointed position, from participating in discussions about and/or voting on a zoning petition seeking a height variance for a dwelling located within 200 feet of his residence.

Previous opinions of the Commission conclude that certain abutters would realize a direct financial impact as a result of zoning and other actions involving neighboring properties. In such instances, the Commission routinely advises public officials to recuse from voting or otherwise participating when the matters at issue come before them. Generally, those decisions involve subdivision approvals. However, in some instances the Commission has concluded that zoning decisions would not have a direct financial impact on abutters. See A.O. 96-63 (North Smithfield Zoning Board member could participate in removal of stipulation on a lot more than 200 feet away from him). Whether or not a particular matter will result in a financial impact on neighboring properties depends on factors such as the nature of the public action being requested and the specific locations of the properties in relation to each other.

Here, although the Petitioner technically is an abutter, the height variance request being sought for a neighboring property is to exceed the restrictions by an additional 1'10". Additionally, the subject dwelling that is being constructed is not adjacent to the Petitioner's property. These facts, together with and the Petitioner's representation that the requested variance would have "absolutely no financial impact on any of my properties" are sufficient to rebut any presumption that the grant or denial of the subject variance would financially affect him as an abutter. Therefore, the Petitioner may participate in this matter without violating provisions of the Code of Ethics.

Code Citations:

36-14-5(a)

36-14-5(d)

Related Advisory Opinions:

98-19

96-63

Keywords:

Property interest