Advisory Opinion No. 2013-40 RHODE ISLAND ETHICS COMMISSION Advisory Opinion No. 2013-40 Approved: November 19, 2013 Re: Robert F. Raimbeault, Jr. QUESTION PRESENTED: The Petitioner, an alternate member of the Pawtucket Zoning Board of Review, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from appearing before the Pawtucket Zoning Board of Review to oppose a use variance application for which he received notice as an abutter. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an alternate member of the Pawtucket Zoning Board of Review, a municipal appointed position, is not prohibited by the Code of Ethics from appearing before the Pawtucket Zoning Board of Review to oppose a use variance application for which he received notice as an abutter, provided that he recuses from the Pawtucket Zoning Board of Review’s discussion and vote regarding the variance. The Petitioner is an alternate member of the Pawtucket Zoning Board of Review (“Zoning Board”), having been appointed in April 2012. He represents that his primary residence is located on Kenyon Avenue in Pawtucket. He states that he has had an ownership interest in this property since 1987 and has used it as his primary residence since 2001. He relates that after noticing an increase in the amount of heavy construction equipment being stored on the property across the street at 284 Kenyon Avenue, he inquired with the Pawtucket Building Inspector as to whether such a use was permitted under the zoning ordinance. He informs that the City of Pawtucket has since issued a citation to the owners of 284 Kenyon Avenue. Thereafter, he states that he received a notice as an abutter that Mazza Properties LLC (“Mazza”), the owner of 284 Kenyon Avenue, was seeking a use variance from the Zoning Board. The Petitioner states that the Zoning Board was initially scheduled to consider Mazza’s use variance application at its October 28, 2013, meeting.[1] However, he informs that he recused from the Mazza variance at the meeting and made it known that he was an abutter to Mazza’s property. He relates that he asked the Zoning Board to continue its consideration of the variance so he could request an advisory opinion from the Ethics Commission regarding his ability to appear and object to its issuance based upon his status as an abutter. He informs that the Zoning Board voted to continue Mazza’s variance to its next meeting on November 25, 2013. Given the above representations, the Petitioner seeks guidance as to whether he may recuse from participation in the Zoning Board’s consideration of Mazza’s use variance application and then appear before the Zoning Board as an abutter who wishes to object to the issuance of the variance. The Petitioner states that the storage and operation of heavy construction equipment across the street from his primary residence affects the use and enjoyment of his home and negatively impacts the value of his property. In general, the Code of Ethics prohibits public officials and employees from representing themselves before a state or municipal agency of which they are a member or by which they are employed, irrespective of the potential for recusal, without first receiving a hardship exception from the Ethics Commission. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(a)(1). Section 5(e)(1) authorizes exceptions, which the Commission has granted in certain circumstances, to allow a public official to represent himself before his own agency, upon recusal and based upon a finding that a denial of such self-representation would result in a hardship. See A.O. 2012-4 (granting a hardship exception to a Westerly Town Council member and permitting him to appear before the Westerly Planning Board, the Westerly Zoning Board and the Westerly Town Council to oppose the proposed development of property directly abutting his personal residence); A.O. 2003-33 (granting a hardship exception to a Smithfield Zoning Board member and his spouse and permitting them to appear before the Zoning Board to testify regarding a petition to locate a church, with a capacity of 2,300 seats and parking for 975 cars, directly across the street from their residential property); A.O. 2000-45 (granting a hardship exception to a former Jamestown solicitor to appear before the Zoning Board to oppose a zoning application for property abutting his personal residence, based upon the fact that the matter was brought to the Zoning Board through no action of his own and it involved his personal residence, which he had owned since 1981). In the present matter, the Petitioner would like to appear before the Zoning Board, of which he is a member, to object to the issuance of a use variance to Mazza for a property that legally abuts the Petitioner’s primary residence.[2] He states that the current use of this property has a negative effect on the use and enjoyment of his home, as well as the value of his home. See A.O. 2012-4 (applying a rebuttable presumption that a property owner will be financially impacted by official action concerning abutting property). He represents that he has owned this property for over twenty-five (25) years and used it as his primary residence since 2001, significantly predating his appointment to the Zoning Board in 2012. Finally, the Petitioner has not petitioned the Zoning Board for his own relief, but rather wishes to object to a use variance brought before the Zoning Board by a third party. Accordingly, it is the opinion of the Ethics Commission that the unique facts represented by the Petitioner herein justify the application of the hardship exception to section 5(e). Thus, the Petitioner is permitted to appear before the Zoning Board in order to object to Mazza’s application for a use variance, provided that he recuses from all participation and voting in any matter involving Mazza’s variance. Thereafter, the Petitioner’s right to address the Zoning Board is the same as any other abutter or member of the public, with no special access or priority. Notice of recusal shall be filed with the Commission in accordance with § 36-14-6. Code Citations: § 36-14-5(e) § 36-14-6 Related Advisory Opinions: A.O. 2012-4 A.O. 2003-33 A.O. 2000-45 Keywords: Hardship Exception Property Interest Revolving Door This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. [1] The Zoning Board’s October 28, 2013, agenda provided notice of the Mazza use variance as follows: Mazza Properties LLC applicant and owner of property located at 284 Kenyon Avenue further identified as Tax Assessor’s Plat 4 Lot 951 located in a “RT” Residential Two Family Zone request a use variance under Section 410-12(18)(B) for storage of business equipment not in compliance with the regulations. [2] The Zoning Board is required by statute to hold a public hearing for any application for a variance. R.I. Gen. Laws § 45-24-41(b).