December 21, 1989

FACTS:


You are a member of the ABC Conservation Commission. You wish
to know whether you may act on a filing made pursuant to G.L. c.
131, s.40 (the Wetlands Protection Act), where the filing
involves property which is located "two lots away from [your]
property, around the cul-de-sac, but not directly opposite the
public way." The filing in question concerns the building of a
residence and a permit for a subsurface sewage system involving a
"coastal wetland."

You have been previously informed by this Commission that a
financial interest is always presumed whenever a person owns
property directly abutting the property in question and that the
Commission has previously determined that a financial interest
arises whenever a person is a so-called "party in interest," as
defined by G.L. c. 40A' the Commonwealth's Zoning statute.[1]

You have now requested a formal opinion on whether you have
any financial interest in the matter before the conservation
commission because (i) the matter does not implicate the Zoning
statute (and you are not, therefore, a statutorily defined "party
in interest"), (ii) your property does not directly abut the
property in question (thereby precluding the automatic
presumption), and (iii) you are not a "person aggrieved" for
purposes of the Wetlands Protection Act. You also seek guidance
as to how the Wetlands Protection Act applies to your situation
for s.19 purposes.


QUESTION:

Does a financial interest arise for s.19 purposes even if the
matter does not implicate either (i) the "party in interest"
test, (ii) the "automatic presumption" test, or (iii) the "person
aggrieved" test?


ANSWER:

A financial interest is presumed in matters affecting real
property where a party is (i) a direct abutter, (ii) a party in
interest, or (iii) a person aggrieved. A financial interest may
also be found even if no such rebuttable presumption arises,
depending upon other factors in a even case. No presumptions
arise in your case and we are aware of no such other factors to
indicate a reasonably foreseeable financial interest.


DISCUSSION:


Section 19


Section 19 of the conflict of interest law prohibits a
municipal employee[2] from partcipating[3] in a particular
matter[4] in which to his knowledge he has a financial interest.

As a conservation commission member, you are a municipal
employee for c. 268A purposes. Whether you have a "financial
interest" in a particular matter depends on whether your interest
can be quantified in monetary term.[5] This broad definition is
limited, however, in at least two important ways.

First, a financial interest does not arise where the interest
is one which "involves a determination of general policy and the
interest of the municipal employee ... is shared with a
substantial segment of the

Page 281

population of the municipality."[6] This exemption would apply,
for example, where town selectmen must vote on a matter that
would affect the collection of revenue from all town residents,
including themselves.

Second, this Commission has determined that the s.19 financial
interest test only applies to those interests which are either
direct, or, if indirect, reasonably foreseeable. EC-COI-89-19.It
is established Commission policy that s.19 will apply to every
financial interest regardless of size and regardless of whether
the interest affects the municipal employee favorably or
adversely.[7] However, if the interest is not direct or
reasonably foreseeable (that is if it is "remote~ speculative or
not sufficiently identifiable"), s.19 will not prohibit
participation. EC-COI-89-19 (municipal employee may participate
in zoning matter where husband holds minor stock interest in a
corporation affected by zoning change); 84-98; 84-96 (financial
interest arises where municipal employee's land abuts and
opposite to land to be developed). While a direct financial
interest is usually obvious, whether a given financial interest
is reasonably foreseeable must be determined on a case-by-case
basis. The Commission will, among other things seek guidance from
other applicable statutes to assist in the determination of
whether a financial interest is reasonably foreseeable in a given
situation.

This Commission has previously determined that a financial
interest will always be presumed in zoning matters where a
property owner has property which directly abuts the property in
question. See Public Enforcement letter 88-1; EC-COI-84-96. As
with any legal presumption, individual facts and circumstances
can be presented to rebut this presumption. To date, because
Commission cases concerning financial interests in real property
have always implicated some aspect of the zoning statute, the
Commission has always looked to the zoning statute for guidance
on s.19. This Commission has not yet had an opportunity to
address directly how activities falling outside of 40A interact
with s.19.

In EC-COI-84-96, however, the Commission stated that a
financial interest could arise even where a party is not a
statutorily defined "party in interest" (as defined in the zoning
statute) where one's property rights stand to be "significantly
affected." Although the facts of that case implicated the
statutory scheme of c. 40A, EC-COI-84-96 (and its definition of a
"party in interest") need not be limited strictly to zoning
applications.

Whether you would have a reasonably foreseeable financial
interest in the matter in question depends, therefore, on what
effects the proposed act or acts will have on your property. The
Wetlands Protection Act recognizes those instances where a
financial impact will be felt by property owners whose property
is near the proposed activity. Consequently, regulations
promulgated under the Wetlands Protection Act establish the
"person aggrieved"[8] test which, in effect, is designed to vest
certain rights in those persons, who would have an interest in
the proposed activity, with a mechanism by which to act. The
necessary implication of this test that "persons aggrieved" may
financially suffer as a result of the activity in a way not
likely felt by others. By its own terms, a "person aggrieved" is,
therefore, unlike the person who might otherwise be eligible for
a s.19 participation exemption[9] because the interest is
different in either "kind" or "magnitude" from that of other
property owners.

Accordingly, this Commission will presume that a reasonably
foreseeable financial interest arises in connection with matters
involving the Wetlands Protection Act where a party is a "person
aggrieved" (as defined therein). Further, if any party could be
considered a "party in interest" (that is, if the party is an
abutter, an owner of land directly opposite on any public or
private street, or an abutter to an abutter within three hundred
feet of an activity affecting real estate), the Commission will
also presume a financial interest regardless of whether the
zoning statute or the Wetlands Protection Act is implicated,
because of the likely significant affects of the proposed
activity on a property owner.[10] Finally, a direct abutter will
be presumed to have a financial interest in any matter affecting
real estate, regardless of whether it implicates the zoning
statute, the Wetlands Protection Act, or any other statutory
scheme.

You have informed us that in the present matter, the wetlands
filing concerns an application for "coastal" property as opposed
to "inland" property. "Inland" property is regulated by the
Wetlands Protection Act such that any activity which would likely
increase flooding potential in the surrounding areas must meet
specific guidelines to minimize the problem, that is, an
applicant would need to provide "compensatory flood storage" such
that his lot has no "net runoff." "Coastal" property, on the
other hand, is not subject to these same guidelines. Presumably,
no such coastal requirements exist because there is little or no
increased potential for such flooding damage to any but a direct
abutter, thereby eliminating the presumption that surrounding
neighbors will suffer damage different in "magnitude" or "kind"
from anyone else (insofar, at least, as to flooding damage).[11]

In any event, you have informed us that the matter

Page 282


in question has become moot because of the time constraints
involved. You have also informed us that you did not participate
in the matter while awaiting this opinion. We can inform you
that no automatic presumption will arise in future matters based
on similar facts because you have represented to us that you are
not (i) a direct abutter, (in) a "party in interest," or (iii) "a
person aggrieved." Beyond that, however, a final determination as
to any financial interest you might have in a particular filing
would require additional facts not presented here.[12]

---------------

[1] A party in interest, for purposes of c. 40A, includes
"abutters, owners of land directly opposite on any public or
private street or way, and abutters to the abutters within three
hundred feet of the property line of the petitioner."

[2] "Municipal employee," a person performing services for or
holding an office, position, employment, or membership in a
municipal agency, whether by election, appointment, contract of
hire or engagement, whether serving with or without compensation,
on a full, regular, part-time, intermittent, or consultant basis,
but excluding (1) elected members of a town meetmg and (2)
members of a charter commission established under Article LXXXIX
of the Amendments to the Constitution.

[3] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise.

[4] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property.

[5] See Graham v. McGrail, 370 Mass 133,139 (1976) (although the
term "financial interest" is not defined in c. 268A, it is any
interest "capable of evaluation in financial terms.")

[6] G.L c. 268A, s.19(b) (3).

[7] See, Public Enforcement Letter 88-1 (even participation in a
way which is contrary to one's own financial interest is
prohibited by s.19).

[8] A "person aggrieved," for purposes of the Wetlands Protection
Act, means any person who may suffer an injury in fact which is
different either in kind or maguitude from that suffered by the
general public and which is within the scope of the Act. See 310
CMR 10.
04.

[9] Because here the interest is not shared with a "substantial
segment" of the municipal population.

[10] Wetlands protection is, in effect, a type of Zoning
regulation. See, e.g., Golden v. Board of Selectmen of Falmouth,
358 Mass. 519 (1970).

[11] This would result in a municipal employee being able to rely
upon the s.19(b)(3) exemption for certain coastal, as opposed to
inland, filings.

[12] This Commission would consider, among other things,
reasonably foreseeable increases or decreases in the value of
your property, or upward or downward revisions in property tax
assessments resulting from the filing in question. See, EC-COI-
84-96
.

End Of Decision