ADVISORY OPINION #194
Subject: Conflicts of Interest/Outside Business Interests
Requested By: Willis Roethemeyer, Lincoln County Commissioner
Question Presented: Does a County Board Member/Private Developer have a conflict of interest as to proposed county zoning regulation amendments?
Facts: A newly elected Lincoln County Commissioner took office in January of 2007. From 1999 to December of 2006 he was a member of the Lincoln County Planning Commission. He is also a developer who has developed many subdivisions in the area, including North Platte, Hershey and the rural areas of Lincoln County. He currently is working on no new subdivisions that are subject to the zoning jurisdiction of Lincoln County. All of his current work relates to subdivisions under the zoning jurisdiction of a city or village.
Under current county zoning regulations for plats under the jurisdiction of the county, the County Planning Commission considers the plat first. It makes a recommendation for approval or disapproval. The final decision is made by the County Board.
Until approximately three years ago it was the county’s policy when approving the final plat to accept subdivision streets dedicated to the public. Thereafter, the streets would be maintained at county expense. Three years ago a review of the Subdivision Regulations for Lincoln County was undertaken. The regulations were adopted in 1983. The review disclosed that the regulations provide that all improvements, including subdivision streets, are to be considered private property and that the private landowners are responsible for maintenance. Since that time the County Board has not approved the dedication of any subdivision streets to the public as part of the approval of a final plat. All final plats are currently required to dedicate the subdivision streets as private roads.
The Lincoln County Planning Commission is considering a change to the Lincoln County Subdivision Regulations such that the Lincoln County Board would have
Advisory Opinion #194
the authority to accept subdivision streets as public roads when approving a final plat. This would carry with it the obligation to maintain the roads. If the Planning Commission recommends the change, the County Board will hold a public hearing on the proposed amendments to the regulations. Thereafter, it will vote to adopt or not to adopt the amendments. At issue is whether the County Board Member/Developer may participate in the public hearing and vote on the proposed amendment.
Analysis: Section 49-1499.03 of the Nebraska Political Accountability and Disclosure Act (NPADA) provides that an official of a political subdivision designated in section 49-1493 (including an elected county official) has a potential conflict of interest if he or she is faced with taking an official action or making an official decision which may result in a financial benefit or detriment to: a) the public official; b) a member of his or her immediate family; or c) a business with which he or she is associated. This benefit or detriment must be distinguishable from that experienced by the general public or a broad segment of it.
In determining whether a public official has a conflict of interest, the Commission has used the “reasonably foreseeable” test. That is, a public official has a potential conflict of interest if it is reasonably foreseeable that the action or decision with which he is faced will result in a financial benefit or detriment. In applying the “reasonably foreseeable” test, the Commission has stated that there is no conflict of interest if the financial benefit or detriment is remote, contingent, speculative, uncertain or de minimis. See Commission Advisory Opinion #77.
The issue as to how, if at all, the County Board Member/Developer will be affected by the proposed change in the zoning regulations must be examined.
One might guess that the purchaser of a lot or home in a new subdivision within the county zoning jurisdiction would prefer streets which are dedicated to the public. The purchaser and fellow purchasers would not need to be concerned with out of pocket expenses for snow removal and other street maintenance. Perhaps a purchaser would pay more for a lot which adjoins a street dedicated to the public. Perhaps dedicated streets would be a selling point which would make the lots more attractive and sell faster. However, the fact that a street is dedicated to the public or not is only one of many factors that might affect the sale price of a lot or the lot's desirability. The potential sale price of a lot with dedicated streets versus a lot with private streets is a highly speculative.
A developer who doesn’t immediately sell all lots in a newly platted subdivision may himself need to pay all or part of the cost of the maintenance of a street which has not been dedicated to the public. Obviously, his need to pay street maintenance expenses is contingent upon how long he owns the lots.
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Whether streets in a newly platted subdivision are dedicated or private, the developer must still insure that streets are constructed in accordance with standards. The financial effect of public streets versus private on the developer fits into the categories of contingent, speculative or uncertain.
Accordingly, it is our opinion that the County Board Member/Developer does not have a conflict of interest on the matter of holding a public hearing on a proposed zoning regulation change. He may participate in the hearing as he sees fit. He does not have a conflict of interest on the matter of voting on the proposed zoning change. He may participate and vote as he sees fit.
Summary: A county commissioner who is also a developer does not have a conflict of interest as to a proposed zoning regulation amendment because under the circumstances there is no reasonably foreseeable financial benefit or detriment to the commissioner. Any financial benefit or detriment is contingent, speculative or uncertain.
ADOPTED as an advisory opinion pursuant to Section 49-14,123(10) and Title 4, Chapter 1, Rules of Practice and Procedure. As provided in Section 49-14,123(10), this advisory opinion shall be binding upon the Commission unless amended or revoked, concerning the person or public body who requested the opinion and acted in reliance thereon in good faith unless material facts were omitted or misstated by the person in the request for the opinion.
DATED this ______ day of March 2007
NEBRASKA ACCOUNTABILITY AND DISCLOSURE COMMISSION
Kim Quandt, Chairman