Filed Date: 8/19/1988
Status: Precedential
Modified Date: 7/5/2016
Franklin K. Bresselor, Esq. Town Attorney, Sand Lake
You have asked whether a member of your town's planning board has a conflict of interests with respect to an application for subdivision approval currently pending with the board.
You have explained that the member of the planning board is also a member of a neighborhood association. You have indicated that the association has not directly opposed the application but through its president has submitted a letter listing a number of concerns and urging thorough planning board review to be sure that these concerns are carefully addressed. You have informed us that the planning board member was not present at the meeting at which the neighborhood association voted to express its concern and to submit a letter concerning this application. Nor has the planning board member personally taken a position concerning the application.
You have also informed us that the same applicant made a similar application for subdivision approval some years ago. At the time, the subject person was not a member of the planning board. You indicated that as a citizen he expressed his disapproval of the application solely on the basis that adequate sewerage could not be provided. You have informed us that in the interim the town has constructed a sewer system and that it appears the applicant will be able to connect to it, thus eliminating this concern.
The development of ethics standards to define when private employment and activities are in conflict with the official duties of a local government officer or employee has been left to the governing body of the municipality (General Municipal Law, §
It is not necessary, however, that a specific provision of the General Municipal Law or local regulations be violated to find a conflict of interests (Mtr. of Zagoreos v Conklin,
Members of local boards unavoidably approach their duties with general views and philosophies concerning land use planning. For example, they may have opinions concerning the need for park land or for affordable housing. These opinions are acquired through each individual's education and experience as a resident of the community. Entrusting of zoning decisions, affecting the lives and livelihoods of residents, to a board promotes decision-making by a diverse group representing the overall public interest. This diversity promotes the planning process by helping to ensure that all facets of an application are considered (Informal Opinion No. 88-59).
As we found in our Informal Opinion No.
Thus, if the planning board member has pre-judged the application, he should disqualify himself from the proceedings. Further, if the planning board member appears to have a conflict of interests based on the circumstances and facts surrounding the application, he should recuse himself from acting as a member of the planning board with regard to this matter. It does not appear that the opposition of this person to the previous application establishes a conflict of interests if in fact the concerns expressed in that opposition will be addressed in the current application. Further, mere membership in a neighborhood association expressing concerns but not opposition to an application, in which the planning board member took no part, does not, in our view, establish a basis for a conflict of interests. It is, however, a question of fact based upon all the circumstances as to whether the planning board member has or appears to have pre-judged the application. The ultimate judgment must be made by the planning board member who best knows his own state of mind and by local officials charged with enforcement of the municipality's code of ethics. The latter might consider requesting an advisory opinion of the town's board of ethics or if none exists, the county's board of ethics, assuming that one has been established, which can act as a fact-finding body (General Municipal Law, §
We conclude that a member of a planning board who as a neighbor is opposed to a pending application for subdivision approval must recuse himself from participating in any planning board proceedings on the application. It is a question of fact based upon all the circumstances as to whether the member has or appears to have pre-judged the application.