Loading...
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