Agenda - Council - 04/08/1980 - Laserfiche WebLink

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these extremes will be many proceedings affecting a few lots or parcels only one of which will be owned by a council member. Ih such cases, ques- lions of fact will be presented as to the council member's possible disqualification. If the council member chooses to vote, his disqualification will be before the council to decide, subject to review in the courts if challenged. There will be many situations where the right to vote is so doubtful that the member will be wise to refrain from participating. The Attorney General appears not to have ruled directly on the conflict of interest issue in zoning cases except to conclude in one opinion that it was a question of fact whether a town board member who had sold on a contract for deed lahd which was the subject of rezoning had a disqualifying interest. (A.G. Op. 471-f, LMC 130d, Sept. 13, 1963.) The Attorney General appeared to assume, however, that if the board member had a sufficient interest in the land, he would be disqualified from voting on the rezoning. A similar assumption is implicit in the case of Van Itailie v. Borough of Franklin Lakes, 28 N.J. 146 Atl. 2d 111, which held that a council- man was not disqualified from voting on a zoning ordinance change because his brother was employed by a corporation interested in the change. See also Low v. Town of.Madison, 135 Conn. 1, 60 Azl. 2d 744 (1948} holding that a member of a zoning commission was disqualified from voting on his wife's application 'for a change of an area from residential to business. And in Crawford ~ ~rewstero 225 Ga. 404, 169 S.E.. 2d 317, it was held that under a statute forbidding a vote b,/ a councilman on. a matter in which he is personally interested (previously construed by the court to mean financially interested}, a councilman who, with his wife, is' employed by a private school affected by a proposed rezoning is not precluded from voting. However, in Josephson v JPlannmg J?oard of City of,gtarnford, 151 Conn. 489, 199 A 2d 691 {1964},a zoning board member who for 12 years had received free desk space and telephone service from a realtor who was invol,ed in an application for a zoning change was held disqualified. 9. Urban renewal decisions. An interest in property which is the subject of an urban renewal decision may be a ground for disqualifi- cation, but when the property is within the area of a larger urban renewal program bu~ not in the project area which is the subject of the decision, this probably is not a disqualification. See Anderson v City of£arsons, 209 Kan. 337~ 496 Pac 2d 1333 {t972). Similarly the ownership of nea[by pro- perry does not disqualify a planning board member from participating in a decision to redevelop bl,ghted property. (Igilson v. City of £ong Branch, 27 N.J. 360, 142 Afl. 2d 837, 1958.) Employment by ti~e owner of p~operty in an area which is the subject of an urban renewal decision is a sufficient -13- interest to disqualify a council member from voting. (Wilson ~.. Ionia City,. 165 N.~. 2d 813 la'., 1969; Grtggs v £orough o.f Princeton, 33 N.J. 207,162 All. 2d 862, 1960.) 10. License issuance and regulation. Though there have been no Minnesota cases on the subject, it would seem clear that when a council member is an applicant for a license to be granted by the council, he is'so personally interested financially that he may not take part in the decision on his application. IVan Hovenberg ~. ttoIman, 201 Ark. 370, 144 S.W. 2d 718, 1940; Clark ~ coholic ~Beverage Commission, 54 R.I. 1;26, 170 All. 79, 19340 Even were a general licensing ordinance the sublect of the action, the member's own interest if he held a license might present him with a sufficient possibl~ty of conflict of interest to make him disqualified. The Attorney General once ruled that' a councilman who.is a part-time employee of a liquor licensee should not vote on the question of reduction of the liquor license fee if he can be shown to be per- sonally interested in the matter on the ground, for example, that the fee. reduction wil~ affect. his compensation or the tenure of his' position, This would be a fact question m a particular case, (A,G, Op, 218-R, LMC 'I40B, Apr~l 29, 1952.) Need for Interested Officials to Make the Decision One of the five .~elevant factors which the Court in I. enz v. Coon Creek Watershed District, 278 Minn. 1,153 N.W. 2d 209 (1967) said should be considered in determining whether there is a disqualifying interest in a particular case "the need, if any, for interested officials to make the decision." This idea is expressed in a number of cases elsewhere. For example, in.' Gonzales ~.. Dairy Falley, 265 Cai. App. 446, 71 Cai. Reptr 255 (1968) it was held that when an admin:s- trative body has a duty to act upon a matter wh:ch i5 before it and it is the only entity capable of acting on the matter, the fact that members may ha~e a personal interest in the ~esult does not. disqualify them from Performing thek duty. in that case council members owned stock in a corporation seeking a special use permit. :. Professor Da,is in his Adrnims'rrative Treatise, Vol 2, Section 12.06 has suggested that the aspect of the conflict of interest rules' most ~n need of critical examination ~s the applica- tion of the ru!e of necessity. In invoking this rule, the' courts should always determine whether in the circumstances the system of allowing the decision to be made by d.squalified officials denies due p~ocess. And when the rule of neces- sity is applied, re~,iewing courts may well consider that the disqualification of the ofhce~s makes appropriate an intensification of judicial review.' Other Means Available