LEGAL ETHICS AND LAND USE PLANNING

A LAWYER SITS AS A MEMBER of the planning board. 

May she step down to represent a client before the board and then return to her seat after the matter is presented and/or resolved? A lawyer in private practice who advised the zoning board for five years was recently replaced with another attorney when the new mayor took office. Can he now represent an applicant before that same board? A member of the planning board is also a local real estate agent for the largest realty company in the town. Is this an inherent conflict of interest? May she vote on proposed new housing developments when she is likely to earn a commission on any sale she makes within these developments? May members of zoning boards vote on matters involving their neighbors, friends, business associates, or anyone they know? What happens when the mayor or supervisor needs a variance from the zoning board--can she appear without an appearance of putting undue pressure on the board? How should they proceed? When is disclosure enough? When is recusal appropriate? When a full-time city attorney is assigned to review a matter pending before the planning and zoning boards and to advise them on appropriate action(s), who is the client of the city attorney? Does it make a difference if different offices and divisions within the government have different ideas on how to proceed? Careful consideration by land-use attorneys of appropriate actions when confronted with ethical dilemmas such as those raised above is critical. Unique circumstances are presented in the public sector arena because multi-million dollar decisions are made by planning and zoning boards, and partly because decisions affect the use of land in individual neighborhoods. This contributes to heightened awareness by applicants and the public of potential conflicts of interest and other ethical dilemmas. For attorneys, it is not enough to simply be conversant with the Code of Professional Responsibility *384 or the Rules of Professional Conduct. For those lawyers working in or interacting with the public sector arena, whether employed or retained by the government or representing a client before the government, additional codes of ethics at the state and local level are relevant to a land-use and zoning practice. This article provides an overview of some of the major issues raised when ethics meets land-use planning and zoning decision making.