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Superior Court Remands Zoning Board Decision Because Member Was Biased

The Superior Court has determined that a zoning board violated the Due Process Clause because one of its members who cast the deciding vote had determined how he was going to vote before the hearing and he was business partners with one of the remonstrants.

Appellant purchased an empty building in Woonsocket and sought dimensional variances from the zoning board to install additional units. One member of the zoning board, named Fagnant, recused himself. One other member named Rivers told Fagnant that he had decided before the hearing how he was going to vote. One of the remonstrants was named Michaud. Rivers and Michaud were business partners. Michaud had an option to purchase property from Rivers. Rivers had supported Michaud's political campaign. Rivers cast the deciding vote against Appellant's request for a zoning office.

As a result of a prior appeal, the Superior Court had ordered the zoning board to consider whether Rivers should recuse himself due to a conflict of interest. The zoning board decided he did not have to recuse himself and again denied the variance.

On the second appeal, the Superior Court determined that the zoning board's proceedings are subject to the Due Process Clause. The Due Process Clause ensures that no person will be deprived of his interests by a proceeding in which the arbiter is predisposed against him. The Rhode Island Superior Court has said that zoning board members must exercise their powers "with strict impartiality or there will inevitably result a loss of public confidence in the policy of the zoning ordinance and in the integrity of the officials charged with the responsibility of administering."

In this case, the record shows that Rivers had decided how he would vote before the hearing. He cast the deciding vote in the denial of appellant's application. Rivers had business and political relationships with one of the remonstrants. The Court concluded that Rivers should have recused himself to avoid the "clearly demonstrated appearance of impropriety and bias." The Court remanded the matter for a de novo hearing with an alternate member sitting in Rivers' place.

Fernandes v. Bruce, P.C. 12-5459, slip op. (R.I. Super. Oct. 21, 2013)

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