Advisory Opinion No. 99-148

Re: Daniel J. O’Brien

QUESTION PRESENTED

The petitioner, a North Smithfield Town Councilor, a municipal elected official, requests an advisory opinion as to whether he may hear a request for a zoning change for property to which he is an abutter.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a North Smithfield Town Councilor, a municipal elected official, may participate in or vote on a zoning change for property to which he is an abutter. The petitioner has presented independent evidence that rebuts a presumption that, as an abutting property owner, he would not be impacted financially by the matter under consideration. See R.I. Gen. Laws § 36-14-5(a).

The petitioner’s home is within 1000 feet of property that is the subject of a zone change request. He advises that he received notice as an abutter. The application is to change the zone from suburban residential to neighborhood business. The petitioner provided independent evidence from a licensed appraiser that his property would not be financially affected by this decision.

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 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 her official duties if it is likely that a “direct monetary gain” or a “direct monetary loss” would 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 it is reasonably foreseeable 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. 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); A.O. 99-92 (advising that a Lincoln Zoning Board member could participate in a matter although she is technically is an abutter given the petitioner’s representation that the Zoning Board decision would have no financial impact on her property).

The Commission notes that it follows a presumption that all property matters that arise within the legal definition of an abutter are presumed to financially impact the property within that area.

The petitioner has presented independent evidence that his property will not be impacted by the current zone change matter. The Commission finds that this evidence rebuts the presumption that the petitioner, as an abutter, will be financially affected. Therefore, the petitioner may participate on this matter.

Code Citations:

36-14-5(a)

36-14-7(a)

Related Advisory Opinions:

99-92

98-167

98-102

98-66

98-58

98-35

98-19

96-63

Keywords:

Property Interest