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HomeMy WebLinkAbout03-557 RehmeyerJeffrey L. Rehmeyer, 11, Esquire Countess Gilbert Andrews, PC 29 North Duke Street York, PA 17401 -1282 ADVICE OF COUNSEL June 12, 2003 03 -557 Re: Conflict; Public Official /Employee; Township Supervisor; Comprehensive Plan; Zoning Ordinance; Development Rights; Class /Subclass Exclusion; Advice of Counsel 02 -564. Dear Mr. Rehmeyer: This responds to your letter of May 12, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.G.S. § 1101 et seq., presents any prohibition or restrictions upon a township supervisor with regard to proposed "Development Rights" regulations that would grant property owners in the township development rights based upon the sizes of their properties, when the township supervisor owns 126 acres of land and would be financially benefited by such Development Rights regulations. Facts: As Solicitor for the Township of Hellam in York County, Pennsylvania (Township "), you seek an advisory on behalf of Richard M. Cloney ("Cloney"), a Township Supervisor. This is the second request that you have submitted on behalf of Cloney regarding the impact of proposed official action by the Township Board of Supervisors on Cloney as a property owner in the Township. The facts that you have submitted may be fairly summarized as follows. Cloney owns approximately 126 acres of land in the Township with improvements consisting of a restored farm house, barn, and related outbuildings. Cloney has owned the land since 1978. Prior to 1996, all 126 acres of Cloney's land were zoned agricultural. Under the comprehensive plan and zoning and land development ordinances then in effect, Cloney potentially could have subdivided his property into 84 lots with each lot consisting of one and one -half acres. In 1996, the Township enacted a new comprehensive plan and zoning and subdivision /land development ordinances. As a result, 100 acres of Cloney's land became zoned Agricultural and the remaining 26 acres became zoned Rural Rehmeyer- Cloney 03 -557 June 12, 2003 Page 2 Conservation. Additionally, the changes that occurred in 1996 diminished Cloney's potential to subdivide his land into a maximum of only 10 lots. You have submitted certain provisions from the 1996 Ordinances for review. In April 2002 you submitted to the State Ethics Commission a request for an advisory opinion as to whether the Ethics Act would present any prohibition or restrictions upon Cloney with regard to participating in the township's revisions of the comprehensive plan and zoning, subdivision and land development ordinances given his ownership of the aforesaid 126 acres of land in the Township, which could be affected by the revisions. In response to your request, Rehmeyer, Advice 02 -564 was issued on May 31, 2002. That Advice speaks for itself, but it is noted that the Advice concluded that if the revisions would give Cloney the ability to subdivide his property into more lots than the 1996 comprehensive plan and related ordinances would allow, thereby increasing the value of his land, he would have a conflict of interest and would be required to abstain and observe the disclosure requirements of Section 1103(j) of the Ethics Act unless the de minimis exclusion or the class /subclass exclusion contained within the definition of "conflict" or "conflict of interest" at Section 1102 of the Ethics Act would apply. The Advice further concluded: (1) that the de minimis exclusion would not apply because the economic consequence would not be insignificant; and (2) that the class /subclass exclusion would apply if there would be at least one other landowner owning comparable acreage in the rural conservation /agricultural zone so as to be similarly situated, and Cloney and the other landowner(s) in the subclass would be affected by the revisions to the same degree as evidenced by a comparison of real estate appraisals as to the affected properties. You state that Rehmeyer, Advice 02 -564 was understood, but that you and Cloney are concerned that appraisals of various parcels of real estate within the Township may present a "cumbersome proposition.' You have submitted additional facts that you believe warrant another analysis of the class /sub -class exclusion. You state that in 2002 the Township adopted a new Comprehensive Plan. Per the new Comprehensive Plan, 15,209 acres of the total 17,121 acres in the Township are now zoned Rural Agricultural. You have submitted the "Future Land Use Map" from the 2002 Comprehensive Plan, denoting the Cloney tracts. The Comprehensive Plan has not yet been implemented by new Zoning and Subdivision and Land Development Ordinances. You state that one possible option for inclusion in the Zoning Ordinance involves the use of "Development Rights." You have submitted a copy of proposed Development Rights regulations, which document is incorporated herein by reference. Per the proposed Development Rights regulations, each Township property owner with property zoned Rural Agricultural would be granted a certain number of Development Rights based upon the size of the property. Such property owners would have the right to retain, use or transfer the Development Rights. Under the proposed Development Rights regulations, one Development Right would not equate to one subdividable lot. Rather, Development Rights would 1De required in certain numbers depending upon the proposed use and the number and size of lots to be created. For example, three Development Rights would be required to create a two -acre lot. The Development Rights necessary for any given new dwelling, structure, or lot could already be in the possession of the property owner. However, the property owner could also purchase Development Rights from other property owners within the Township. The transferability of Development Rights would create a market for them, and it would allow property owners to purchase or to sell Development Rights as they would choose. Rehmeyer- Cloney 03 -557 June 12, 2003 Page 3 Not specifically mentioned in your advisory request letter, but repeated throughout the proposed Development Rights regulations that you have submitted, is the fact that the soil of a given property is to be classified as "prime agricultural" or "non - prime agricultural," with the Development Rights for that property being identified and linked to the soil classification. For properties with combinations of classifications, the Development Rights are allocated between the two classifications based upon the percentage of each classification in the tract. Development Rights can only be added to a tract if they have been severed from another tract with soils of equal or higher classification. Development Rights linked to non -prime agricultural soils cannot be added to a tract with prime agricultural soils. You have submitted a list of properties consisting of 15 or more acres in the Township. The information provided on the list includes the map and parcel reference, the property address, the owner's name and address, the acreage of the parcel, and the cumulative acreage owned by the property owner(s). The list does not include the soil cla §sification(s) for any of the properties. Cloney's total cumulative acreage is ranked 21 in the Township. Additionally, there are 36 parcels of land in the Township that are larger than the largest tract owned by Cloney. You proffer as your premise that by using the Development Rights regulations, each property owner's development potential will become more equalized and less dependent upon the particularities of the real estate, other than size. From that premise, you further contend that appraisals are not needed to analyze whether the class /subclass exception will apply to Cloney with regard to Township action involving the proposed Development Rights Regulations, and that an analysis of the grant of Development Rights for each property will suffice. You have submitted a table calculating the development potential for Cloney and various other Township property owner(s) under the current zoning ordinance and under the proposed Development Rights regulations, which table is incorporated herein by reference. Your calculations under the current zoning ordinance are based upon lots of 1.5 to 2 acres. Your calculations under the proposed Development Rights Regulations are based upon 2 -acre lots. You state that the table is for illustration purposes only, and that the means by which the property owners choose to utilize the Development Rights granted to their parcels of real estate is a subsequent decision that cannot be ascertained at this time and is irrelevant to this analysis. Each Township property owner listed on the table currently owns from one to five parcels totaling from 97.21 acres to 179 acres. You have calculated that under the current zoning ordinance, the subdivision potential for these property owners for lots ranging from 1.5 to 2 acres ranges from zero to nine lots per parcel, with the total lots per property owner ranging from eight to thirteen. You have calculated that under the proposed Development Rights regulations, the number of development rights for these property owners ranges from zero to 92 for a given parcel, with the total number per property owner ranging from 55 to 92. Finally, you have calculated that the number of 2 -acre lots possible for these property owners based upon the development rights that they would be allocated ranges from 18 to 30. Based upon our calculations, you contend that Supervisor Cloney is a member of a sub -class of Township property owners, including property owners listed on the aforesaid table, whose real estate ownership you claim would be affected to the same degree by the proposed Development Rights regulations. You note that when comparing current subdivision potential to Development Rights under the proposed regulations, property owner Ellsworth Lehman currently can subdivide his 2 parcels into approximately 10 lots (7 lots if the parcels are aggregated), but under the new system he would possess 75 Development Rights. Cloney can Rehmeyer- Cloney 03 -557 June 12, 2003 Page 4 currently subdivide his 2 parcels into 13 lots (11 lots if the parcels are aggregated), and under the proposed system Cloney would have 68 Development Rights. William Blessing can presently divide his five parcels into 13 lots (5 lots if the parcels are aggregated), and under the proposed system he would have 62 Development Rights. It is your contention that the issue presented for review is as follows: If a Zoning Ordinance is enacted in the Township and that Zoning Ordinance includes Development Rights regulations in the form submitted, will the Ethics Act present any prohibition or restriction upon Cloney to participate in the creation or adoption of such a new Zoning Ordinance, where the Zoning Ordinance will impact equally his property and similar properties owned by other Hellam Township residents? Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As a Township Supervisor, Cloney is a public official subject to the provisions of the Ethics Act. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Rehmeyer - Cloney 03 -557 June 12, 2003 Page 5 65 Pa.C.S. § 1102. In addition, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 1103(j) of the Ethics Act provides as follows: § 1103. Restricted activities (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. § 1103(j). In each instance of a conflict, Section 1103(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes or supervisor. In the event that the required abstention results in the inability of the governmental body to take action because a majority is unattainable due to the abstention(s) from conflict under the Ethics Act, then voting is permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. In applying the above provisions of the Ethics Act to the instant matter, pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. Pursuant to Section Rehmeyer- Cloney 03 -557 June 12, 2003 Page 6 1103(a) of the Ethics Act, as a Township Supervisor, Cloney would have a conflict as to matters that would come before him that would result in a financial gain to himself. In each instance of a conflict, Cloney would be required to abstain and to satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. As to whether Cloney may participate as a Township Supervisor in action regarding the proposed Development Rights regulations, you are advised as follows. Given that the proposed Development Rights regulations would give Cloney Development Rights that he could sell or that he could use to subdivide his property into 9 more lots than the current zoning ordinances would allow, thereby increasing the value of his land, he would have a conflict of interest as to the proposed Development Rights regulations and would be required to abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act unless the class /subclass exclusion contained within the definition of "conflict" or "conflict of interest" would apply. The de minimis exclusion would not apply because the economic consequence would not be insignificant. In order for the class /subclass exclusion in the Ethics Act's definition of "conflict" or "conflict of interest" to apply, two criteria must be met: (1) the affected public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be a member of a class consisting of the general public or a true subclass consisting of more than one member; and (2) the public official /public employee, immediate family member, or business with which the public official /public employee or immediate family member is associated must be affected "to the same degree" as the other members of the class /subclass. 65 Pa.C.S. § 1102. The first criterion of the exclusion is satisfied where the members of the proposed subclass are similarly situated as the result of relevant shared characteristics. The second criterion of the exclusion is satisfied where the individual /business in question and the other members of the class /subclass are reasonably affected to the same degree by the proposed action. Kablack, Opinion 02- 003. In the instant matter, the class /subclass exclusion would only apply if there would be at least one other landowner owning comparable acreage in the Rural Agricultural zone so as to be similarly situated to Cloney, and Cloney and the other landowner(s) in the subclass would be reasonably affected to the same degree by the proposed Development Rights regulations as evidenced by a comparison of the value of their respective Development Rights and real estate appraisals as to the affected properties. It would seem that the purpose of your most recent request for an advisory was to obtain a definitive determination as to whether Cloney would qualify under the class /subclass exclusion referenced in the prior Advice issued to you without having to obtain appraisals as to the impact of the proposed action on Cloney as compared to other property owners in the proposed class /subclass. However, the impact of the proposed Development Rights regulations upon Cloney as compared to other property owners would not, as you appear to suggest, reduce to a simple comparison of how many Development Rights each property owner would receive, or even a comparison of the number of 2 -acre lots they would be able to develop. The facts that you have submitted are deficient and preclude a definitive determination as to whether the class /subclass exclusion will apply, for the following reasons: (1) the value of the Development Rights each property owner will receive will depend in part upon the soil classification(s) assigned to them, which information is not included in the submitted facts; (2) the market value of the Development Rights has not been submitted (and probably is not known at this time), yet the market value is material because the greater the market value of the Development Rights, the greater the Rehmeyer- Cloney 03 -557 June 12, 2003 Page 7 significance differences between property owners will have; and (3) the impact of increased numbers of allowed lots will vary depending upon property values. First, with regard to the Development Rights each property owner receives, a crucial material fact that is missing from your inquiry is the number of Development Rights identified as having a prime agricultural classification versus the number identified as having a non - prime agricultural classification for each member of the proffered class /subclass. Under normal economic principles, the former should have a higher value than the latter because they can be marketed for properties with either classification. In contrast, Development Rights identified as having the non -prime agricultural classification will be limited in their marketability. Second, there is no indication as to the value of the various classifications of Development Rights (nor is it expected that there could be at this point in time). However, the greater the value of each Development Right, the greater will be the significance of differences between property owners. Third, one may not simply put on blinders as to the impact on the value of the properties to be compared. The following hypothetical illustrates this point. Assume that Property Owner A and Property Owner B both own 126 acres of Township property zoned Rural Agricultural that, pursuant to the proposed Development Rights Regulations, could be subdivided into 22 two -acre lots instead of only 13. Even if all other variables are identical for the two property owners, the variable of the value of their respective properties still comes into play and cannot be ignored. If Property Owner A's land is more desirable (better location, better topography), such that his 9 additional 2 -acre lots will be worth $50,000 each, and Property Owner X's land is located next to a toxic landfill such that his 9 additional 2 -acre lots will be worth only $2,000 each, the disparity between the impact upon these property owners is readily apparent. Even though both property owners will experience the precise same increase in the number of lots they may develop, Property Owner A will clearly not be affected by the new Development Rights regulations "to the same degree" as Property Owner B. The financial impact upon Property Owner A will be many times greater than it will be upon Property Owner B. At this juncture, it is important to note that seeking an advisory is an opportunity for those who are willing to do what is necessary to submit all of the material facts pertaining to their requests for review, thereby obtaining a determination as to the propriety of their proposed conduct and the accompanying statutorily - designated legal defense. It is not always easy to submit all of the material facts, but that is what is required of the requestor. See, 65 Pa.C.S. §§ 1107(10), (11). The propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Second Class Township Code. Conclusion: As a Township Supervisor for Hellam Township, Richard M. Cloney ("Cloney ") is a public official subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et Where proposed Development Rights regulations would give Cloney Development Rights that he could sell or that he could use to subdivide his property into 9 more lots than the current zoning ordinances would allow, thereby increasing the value of his land, he would have a conflict of interest as to the proposed Development Rights regulations and would be required to abstain and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act unless the class /subclass exclusion contained within the definition of "conflict" or "conflict of interest" would apply. The class /subclass exclusion would only Rehmeyer- Cloney 03 -557 June 12, 2003 Page 8 apply if there would be at least one other landowner owning comparable acreage in the Rural Agricultural zone so as to be similarly situated to Cloney, and Cloney and the other landowner(s) in the subclass would be reasonably affected to the same degree by the proposed Development Rights regulations as evidenced by a comparison of the value of their respective Development Rights and real estate appraisals as to the affected properties. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel