By Jeffrey Gould,
Vice President and General Counsel, The Saint Consulting Group
A recent posting on Law of the Land blog discussed the question of a planning board member’s personal relationship with an engineering firm creating a prohibited conflict of interest. Conflicts of interest usually arise when a member of a zoning agency has a pecuniary interest in a zoning decision or a personal relationship with the applicant for a zoning change.
A pecuniary interest based on the ownership of property affected by the zoning change is a typical example. A pecuniary benefit from property ownership may not create a conflict of interest if the benefit is indirect. So for example, in a Connecticut case, the court did not find a conflict of interest when the city council disapproved an application for a multi-family development, even though members of the council owned competing multi-family developments in the city.
A court may refuse to find a pecuniary conflict of interest when the pecuniary benefit is contingent or remote. In a Nebraska case, a council member voted for a comprehensive plan that designated property he owned for commercial use. The court did not find a conflict of interest, because it held that the designation on the comprehensive plan was speculative because it depended on future action by the city, including the future staging of development and zoning.
Members of local zoning boards and commissions often belong to unions and other organizations that benefit indirectly from zoning decisions. An example is a conditional use a zoning board grants for a development project that will employ workers who belong to a board member’s union. The courts usually will not find a conflict of interest if the member of the organization does not receive a direct pecuniary benefit. Courts generally do not want to prohibit service on a zoning agency by a person whose organization gains indirectly from the zoning process.
Courts find an improper conflict of interest when close personal or business relationships exist between a member of a zoning board and an applicant for a zoning change. A board member was disqualified when his wife was the applicant for a zoning amendment. Board members who sold property to an individual who subsequently made an application for a zoning change on the property also were disqualified. A board member was disqualified when his nephew was a member of the law firm that represented the applicant.
The above examples provide some guidance as to how questions regarding conflicts of interest in the zoning process are being decided by the courts.
Jeffrey Gould is Vice President and General Counsel for The Saint Consulting Group, email email@example.com, phone 781 749 7290