Advisory Opinion No. 99-92

Re: Kristen Libutti Rao

QUESTION PRESENTED

The petitioner, a Lincoln Zoning Board of Review member, a municipal appointed position, requests an advisory opinion as to whether she may participate and vote in the Zoning Board’s review of a decision by the Planning Board to deny a subdivision proposal, given that a portion of her property is located within 200 feet of the property at issue.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a Lincoln Zoning Board of Review member, a municipal appointed position, from participating and voting in the Zoning Board’s review of a decision by the Planning Board to deny a subdivision proposal since there is not sufficient evidence that the petitioner’s property would be impacted financially by the matter under consideration. See R.I. Gen. Laws § 36-14-5(a).

The petitioner advises that on June 1, 1999, the Lincoln Zoning Board of Review will consider an appeal of the Planning Board’s decision to deny a subdivision proposal. The Planning Board's denial was based on the proposed cul-de-sac’s length and related concerns regarding adequate points of egress. A minimum street length of 600 feet is required by ordinance, while the proposed cul-de-sac measures 460 feet. She represents that approximately one-sixth of her back yard falls within a 200 foot radius of the area at issue. She indicates that the proposed cul-de-sac would not be visible from her property nor would the subdivision impact her property in any way.

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 in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). An official will have an interest in substantial conflict with his official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” will accrue, by virtue of the public official’s activity, to the official, a business associate, or a family member. See R.I. Gen. Laws § 36-14-7(a).

In previous opinions the Commission has concluded 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 has advised 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 (concluding that a member of the North Smithfield Town Council, technically an abutter, 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 the petitioner’s property would be impacted financially by the decision to create the subdivision). 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, only a small fraction of her back yard is within 200 feet of the area at issue. Further, the proposed cul-de-sac would not be visible from her property. These facts, together with the petitioner’s representation that the subdivision would have no financial impact on her property, are sufficient to rebut any presumption that the Zoning Board’s action on the matter would financially affect her 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)

36-14-7(a)

Related Advisory Opinions:

98-167

98-102

98-66

98-58

98-35

98-19

96-63

Keywords:

Property Interest