Zoning Practice — November 2005

Ask the Author

Here are reader questions answered by Erin Sass Eastman and Jerry Anderson, authors of the October 2005 Zoning Practice article "Reducing Bias on Zoning Boards."

Question from Bill Terry, AICP, Planning Consultant, Nashville, Tennessee:

In Tennessee, we have a planning commission and board of appeals training law that requires four hours continuing education each year. Several planners and planning agencies present training sessions for these board members. The conflict of interest discussion would be a good addition to our presentations. Do you have a sample of a good conflict of interest policy?

Answer from author Erin Sass Eastman:

While I do not know of a sample conflict of interest policy, in our Iowa survey we asked the cities to send us their conflict of interest policy. We received many that were very basic and nonspecific. Two of the better policies are set forth below:

City of Eagle Grove, Iowa, Eagle Grove Employee Handbook, 6.10:

It is the policy of the city that no elected or appointed official or city employee, or the spouse, or minor child of an elected or appointed official or city employee, or a firm of which the elected or appointed official of the city is a partner or a corporation of which the elected or appointed official or the city employee holds ten (10) percent or more of the stocks either directly or indirectly, shall have any personal material interest or outside affiliation which would likely produce a conflict between their self-interest and proper performance of the elected or appointed official’s or employee’s duties. No knowledge gained by any elected or appointed official or employee in their role as such shall be used in such a manner as to cause a conflict between their personal interest and the city’s interest. All elected or appointed officials or employees shall conduct their personal affairs so as to avoid any conduct that may adversely affect or appear to affect the judgment of the elected or appointed official or employee.

Des Moines Municipal Code § 2-1054, available online at http://library.municode.com/mcc/home.htm?infobase=13242&doc_method=cleardoc:

(a) No member of any administrative or advisory board, committee, commission or agency shall vote or participate in the discussion before the body or any subcommittee of the body on any issue in which the member has a direct financial interest or an interest as defined in sections 2-740 and 94-3 and as described in this section. No member of any administrative or advisory board, committee, commission or agency shall participate in selection or in the award or administration of a contract if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when any of the following persons has a financial or other interest in the firm or contractor selected for award:

(1) The board, committee, commission or agency member;

(2) Any member of his or her immediate family;

(3) His or her partner; or

(4) Any organization which employs or is about to employ any of the persons mentioned in subsections (a)(1) through (3) of this section.

(b) No board, committee, commission or agency member shall solicit or accept gratuities, favors, money, rebates or anything of monetary value from contractors, potential contractors or parties to subagreements.

(c) Except as otherwise specifically provided in this Code, no two members of any administrative or advisory board, committee, commission or agency shall be employees of the same person, firm, company, partnership or other employing entity. For purposes of this section the owner or proprietor of a firm, company or other employing entity and each partner in a partnership and the spouse of each owner or proprietor or partner shall be considered an employee of the firm, company, partnership or other employing entity. This subsection shall not disqualify any member of a board, committee, commission or agency serving upon the effective date of this section.

(d) Any member who violates this section may be subject to disciplinary action by the appointing authority, including removal from office.

(e) The conflict of interest provisions in sections 2-740 and 94-3 shall also apply to all members of any administrative or advisory board, committee, commission or agency.

(f) Exceptions under federal law. To the extent allowed by applicable federal law or regulation, the city council may permit exceptions to conflicts of interest under this section which do not constitute a violation of applicable provisions of state law. The grant of such exceptions shall be specifically conditioned upon approval by the appropriate federal agency.

I would also recommend the American Law Institute-American Bar Association Course of Study available on Westlaw: Patricia E. Salkin, "Avoiding Ethics Traps in Land Use Decisionmaking" 535 (ALI-ABA Course of Study, August 22-24, 2002).

Question from a Zoning Practice subscriber:

I have property in an estate-residential area. The existing zoning provides for a conditional use for keeping horses. I am able to meet all conditions of the requirements. Adjacent property owners are in favor. I have two non-adjacent property owners who are not in favor. Could I legally be voted down if I meet all the conditions?

Answer from author Jerry Anderson:

It would really depend on how your conditional use ordinance is written. Most conditional use ordinances leave discretion in the Board of Zoning Adjustment to grant the conditional use not only if it meets certain requirements, but also if it is compatible with the neighborhood. The latter factor would allow the board to deny your request if the neighbors made a strong case for why they would be adversely impacted.

Question from Alan Fogg, graduate student, Virginia Tech:

Virginia's legislature passed a bill this year that enables localities to empower zoning administrators to approve "minor" modifications (exceptions) to zoning ordinances requested by property owners rather than make them always go before Board of Zoning Appeals. It is a way to get around the hardship standard that traditionally applies to variances. Are you seeing anything like that elsewhere in the country?

Answer from author Erin Sass Eastman:

The Virginia statute is not alone, California has a statute that could allow a zoning administrator to decide a variance (Cal. Gov. Code § 65901), and Oregon allows city staff to decide hardship-based variances. See, e.g., Kelley v. Clackamas County, 973 P.2d 916 (Ore. 1999). Additionally many other states allow the zoning administrator to make decisions other than variance decisions.

In terms of bias, allowing the zoning administrator to make decisions may be beneficial for two reasons. First, the zoning administrator is more likely to be insulated from political pressure. And second, the zoning administrator is, perhaps, less likely to be economically tied to development interests. However, this is not something that was considered in our study. It is hard to predict the background of zoning administrators, so it is difficult to say whether they are biased towards development or not.

Overall, I think allowing zoning administrators to make "minor modifications" in applying zoning ordinances is a fine idea as long as: (1) there is an appeal mechanism and (2) there are some guidelines for what "minor modifications" the zoning administrator is allowed to make.

Lastly, I disagree with your comment that the Virginia statute is a "way to get around the hardship standard." In fact, the Virginia statute requires the zoning administrator to find in writing that hardship exists. Va. Code § 15.2-2286 (2005).