Attachment 5STATE OF CALIFORNIA
FAIR POLITICAL PRACTICES COMMISSION
428 J Street . Suite 6z0. Sacramento, CA 95814-2329(916) 3zz-S66o. Fax (916) 3zz-o886
Re
February 6, 2017
Robert W. Schultz
Town Attorney
Town ofLos Gatos
Civic Center
I l0 E. Main Street
Los Catos, CA 95030
Your Request for Advice
Our Fllc No. A-I7-009
Dear Mr. Schultz:
QUESTIONS
Do the Act's conflict of interest provisions prohibit Council Members Rob Rennie, Marico
Sayoc or Bartara Spector from participating in the appeal process for a penalties assessed in
relation to the unlawful dernolition of historic structures located within 500 fcet of their real
propert/
CONCLUSION
This letter responds to your request for advice rcgarding the mnflict of interest provisions of
the Political Reform Act (the "Acf).1 The Fair Political Practices Commission (the "Commission")
is not a finder offact when renderi ng advice (In re Oglesby (1925) I FPPC Ops. 7l), and any
advice we provide assumes your facts are complete and accurate.
Please note that we are only providing advice under the conflict of interest provisions ofthe
Act and not under other general conflict ofinterest prohibitions such as common law conflict of
interest or Section 1(D0.
No. As explained below, Council Members Rennie, Sayoc and Spector do not have a
prohibitory conflict ofinterest in decisions concerning appeals for penalties assessed pursuant to the
specified Ordinance.
r'fhcPolilicalReformActisconlaircdinGovemmcnlCodeSecdons81000thmughgl0l4.Allstaturory
referenccs arc lo Ihc Govcrnmcnt Codc, unlcss otherwise indicated. Tbc rcgulafoas ofthe Fair Politicd Practiccs
Comrnission are contained in Scctions ltl l0 tluough !t997 of Titlc 2 ofthc Califomia Code ofRcgulations. All
rcgulatory refercnccs rre to Titlc 2, Division 5 ofthe Califomia Code ofRegulations, unless othcrwire indicated.
ATTACHMENT 5
File No. A-17-009
Page No. 2
FACTS
In 2001, the Los Gatos Town Council adopted an Ordinance that contains provisions for
penalties for unlawful demolition ofhistoric sfiuctures and an appeal process ifpenalties are
assessed for such dcrnolition. A historic structue is defined as "[a]ny primary structure constnrctcd
prior to I 941, unless the deciding body has determined that the structure has no historic significance
and should not be included in the Town Historic Resources Inventory."
In May 2009, the Town approved the relocation and addition to a historic structure at 130
Massol Avenue. In July 2010, the Town determined that the owner of 130 Massol had performed
construction work beyond the approved plans that resulted in the demolition ofa historic
structure. The owner of the prope y at 130 Massol Avenue was required to submit additional
plans and obtain new permits/approvals based upon the revised scope. The project at 130 Massol
Avenue has since been completed and no further approvals by the Town are required.
Pursuant to Town Codc, the Town Manager ossessed fines in the amount of$82,950 for the
demolition of the historic structure. Pursuant to Town Code, the owner ofthe property at 130
Massol Avenue appealed the Town Manager's decision to the Town Council. Council Member Rob
Rennie owns residential real. property within 500 feet of 130 Massol Avenue. The property he owns
is not defined as a historical structure under Town Code.
In April,20l4, the Town approved an addition and remodel for a historic structure at 205
University Avenue. ln August, 20!4, the Town determined that the owner of205 University
Avenue had performed construction work beyond the approved plans that resulted in the
demolition of a historic structure. The owner of the property at 205 University Avenu€ was
required to submit additional plans and obtain new permitsiapprovals based on the revised scope.
The addition and remodel to the historical structure has since been completed and no further
approvals are required by the Town.
Pursuant to Town Code, the Town Manager required the payment offines in the amount of
$23,200 for the demolition ofa historic structure. Pursuant to Town Code, the owner ofthe property
at 205 University Avenue appealed the Town Manager's decision to the Town Council.
Council Member Barbara Spector and Mario Sayoc both own residential real property within 500
feet of205 University Avenue. The properties they own are defined as historical structures under
Town Code.
AI{ALYSIS
Section 87100 prohibits a public official from making, participating in making, or otherwise
using his or her official position to influence a governmental decision in which the official has a
financial interest. Under Section 871 03(b), an official has a financial interest in a decision within
lhe meaning ofSection 87100 if it is reasonably foreseeable that the decision will have a material
financial effect on any real property in which the official has a direct or indirect interest worth
$2,000 or more.
With resp€ct to the decisions at issue, Council Member Rennie, Spector and Sayoc each
have a financial interest in their respective residential real properties urder the Act. Therefore, we
FileNo. A-17-009
Page No. 3
must determine whether the financial effect ofthose decisions on each of their respective interests is
both foreseeable and material.
Fo res eeobi I i ty and Mat eri a I i t!
A financial effect is presumed to be reasonably foreseeable when it is explicitly involved in
a decision. Financial interests that are explicitly involved include an interest that is a named party
in, or subject of, a governmental decision. (Regulation 18701 (a).) None of the interests here are
explicitly involved in the govemmental decision at issue. For interests that are not explicitly
involved, the effect need not be likely to be considered reasonably foreseeable, .,ln general, if the
financial effect can be recogrized as a realistic possibility and more than hypothetical or theoretical,
it is reasonably foreseeable." (Regulation 18701@).)
For real property not explicitly involved in a decision and pertinent to your facts, a
foreseeable effect is material if the decision:
(ll) Would consider any decision affecting real property value
located within 500 feet of the property line of the official's real
prgperty. . . Notwithstanding this prohibition, the Commission may
provide written advice allowing an official to participate undcr these
circumstances if the Commission determines that there are sufficient
facts lo indicate that there will be no reasonably foreseeable
measurable impact on the official's property;
(12) Would cause a reasonably prudent person, using due care and
consideration under the circumstanccs, to believe that the
govemmental decision was of such a nature that its reasonably
foreseeable effect would influence the market value of the official's
property,
(Regulation I 8702.2(a)( I 0)-( I 2).)
As mentioned, the Town Council adopted an Ordinance imposing penalties for the unlawful
demolition ofhistoric structures and providing an appeal process when penalties are assessed for
such demolition. Here, the only govemmental decisions at issue are the appeals of two penalties that
were assessed with respect to two separate properties - one located within 500 feet ofCouncil
Member Rennie's real property and one located within 500 feet of real property owned by Council
Members Sayoc and Spector - for renovations that have already been completed.
Based on these facts, we simply cannot conclude that a reasonable person would find it
realistically possible that a decision on the penalties themselves, without more, would have any
influence on the property value ofhomes wittrin 500 feet. In other words, we do not believe it is
reasonably foreseeable that the Council Mernbers' real property values will be in any manner
affected by decisions concerning the amount ofthe penalties where the renovations on the specified
properties have already been completed.
File No. A-17-@9
Page No. 4
Accordingly, based on these facts, the Act's conflict ofinterest provisions do not prohibit
any of the specified counsil Members from participating in decisions conceming the applals.
If you have other questions on this matter, please contact me at (91 6) 322-5660.
Sincerely,
Hyla P. Wagner
General Counsel
By
Counsel, Legal Division
Jwjgl