Findings of Fact Nebraska Planning & Zoning Association 2010 Planning Conference February 25, 2010 Presented by David H. Ptak Attorney at Law 2008 Question of fact vs. Question of law Question of fact: With regard to a rezoning application does the Comprehensive Plan designate the property as residential/ commercial/industrial on the future land use map? Question of law: Is the rezoning application consistent with the Comprehensive Plan? 1
Question of fact vs. Question of law Question of fact: Did the applicant begin construction of a project before either seeking a change in zoning or applying for and receiving a building permit? Question of law: Does commencing construction before seeking a zoning change or applying for a building permit comply with your zoning regulations? The Decision Process Procedural did you follow your own rules and regulations (Bylaws, SOP s, etc.) Substantive was there sufficient evidence (oral and/or documentary) to support the conclusions used to form the decision (Will it be sustained if reviewed?) Findings of Fact? Findings of fact to be sufficient to support a decision must include: the basic facts from which the criteria in terms of the statute, ordinance, or regulation can be determined - (competent evidence supporting the conclusion or decision); Inferences are not findings of fact; nor are speculation or conjecture. 2
Competent Evidence? How about: a cassette recording of proceedings before the governing body, transcription of recording of hearing, documents memorializing various aspects of proceedings, photographs of applicant's property, schematic showing layout of applicant's property, generic presentation of setback requirements, district zoning map, definitions utilized in the city/county's zoning code, and bylaws of body or board? City of Battle Creek, Nebraska v. Madison County Board of Adjustment, (Neb.App. 2002) City sought judicial review of decision of county board of adjustment granting of a variance from setback requirements for construction of a garage on property bordered by platted streets on three sides. The District Court modified the board's findings to conform with statutorily required findings and affirmed board's decision. City appealed. The Court of Appeals held that: (1) board failed to make statutorily required findings to support granting variance, and (2) additional exhibits accepted by district court did not contain competent evidence which supported modified factual findings. The decision of the District Court was reversed and the variance denied. 3
Any grant of a variance must be supported by evidence relating to each of the four factors enumerated by statute: (1) The strict application of the zoning regulation would produce undue hardship; (2) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; (3) the authorization of such variance will not be of substantial detrimen to adjacent property and the character of the district will not be changed by the granting of the variance; and (4) the granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit, or caprice. OK, but what do we need to do? The 7 Deadly Sins of Findings of Fact Why do we need to make findings of fact anyway? How do we make findings of fact? What are the criteria for the decision? Where do we find competent evidence? How do we make a record of the proceedings? How do we make a motion? How do we conduct a vote? 4
Sin #1 Why do we have to make findings of fact? An appellate court is to review the decision of the decider of fact *, and the appellate court is to decide if the decider of fact abused its discretion or made an error of law. Where competent evidence supports the decider of fact's factual findings in reviewing a decision, the appellate court will not substitute its factual findings for those of the decider of fact. * decider of fact = governing body or board of adjustment Sin #2 How do we make findings of fact? Decision is not a popularity contest or based on who has the most supporters in the audience. Decision is based on the criteria of what is necessary to make the decision or grant the relief as set forth in the statute, ordinance, or regulation and the competent evidence which supports those criteria. REMEMBER.... Competent evidence Popularity 5
Sin #3 What are the criteria for the decision? The Big 3 : Change in zoning? Public hearing a finding or fact? Planning Commission recommendation a finding or fact? Comprehensive Plan states... a finding or fact? Future Land Use map shows... a finding or fact? Granting of a conditional use permit (CUP)? Granting of a variance? 4 criteria set forth in the statute present? ( 19-910 or 23-168.03) Sin #3 What are the criteria for the decision? Example: Granting of a conditional use permit (CUP)? 23-114.01 (6) Whenever a county planning commission or county board is authorized to grant conditional uses or special exceptions pursuant to subsection (4) or (5) of this section, the planning commission or county board shall, with its decision to grant or deny a conditional use permit or special exception, issue a statement of factual findings arising from the record of proceedings that support the granting or denial of the conditional use permit or special exception. (Note not the same language as in 19-929 for cities) Sin #4 Where do we find competent evidence? Comprehensive Plan Future/Existing Land Use Map Zoning Ordinances or Regulations Zoning Administrator s or Staff s report Recommendation of the Planning Commission Testimony Exhibits pictures and documents 6
Sin #5 How do we make a record of the proceedings? Tape recorder/court reporter Secretary/Clerk Identify witnesses Identify exhibits Think what you would need to provide to someone who had to make the decision who wasn t present at the hearing Checklist of procedure Checklist of items Sin #6 How do we make a motion? I move to approve/deny the application or request. OR I move to approve/deny the application or request based upon... Sin #7 How do we conduct a vote? All those in favor of the motion signify by saying aye ; those opposed the same sign. OR There has been a motion by X, seconded by Y to approve/deny the application or request based upon..., will the secretary/clerk please call the roll. 7
Other things to consider: Judicial review of the decision is usually done by a review based primarily upon the record made before the decider of fact. A complete record normally requires the decider of fact to make findings of fact and to articulate its reasons for decision. Without adequate findings, a burden is imposed upon the reviewing court to search the record to attempt to find a reason for the action taken. If no reason is found, the action of the decider of fact cannot be upheld. Decisions of the decider of fact may not be based upon general objections and conclusions without evidentiary support in the record. Findings which are merely conclusions are insufficient. Mere findings which describe the size, area, present use, and purchase price of the property in question, and state that the plight of the owner is due to unique circumstances, are insufficient to form a basis for granting relief from a zoning ordinance. Conclusions, even though couched in the language of the ordinance/regulations are not sufficient to approve/deny or grant/deny relief. A wholesale incorporation of the contents of a report by the zoning administrator fails to fulfill the decider of fact's responsibility to make findings of fact. In making factual findings, the decider of fact is obligated to consider all the evidence in the matter rather than merely to accept as factual every statement made by its zoning administrator or planning consultant. The decider of fact must explain how its findings support its ultimate legal conclusions. A court will not generally substitute itself in matters of local decisions as long as the decider of fact s decision is based on the evidence and not is not arbitrary, capricious, unreasonable, or illegal. 8
In the zoning context, substantial evidence is evidence that a reasonable person might accept as adequate to support a conclusion. Also, substantial evidence is at least a little more than a scintilla (small amount) of evidence to support decider of fact s action. Substantial evidence may be found although the evidence is disputed or could support two inconsistent conclusions. In determining whether substantial evidence exists to support a decider of fact s decision, an appellate court must view the evidence and reasonable inferences from that evidence in the light most favorable to the decider of fact. A decider of fact's decision on a request for zoning relief must render findings adequate both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to inform the reviewing court of the basis for the decider of fact's decision. A decider of fact must prepare sufficiently detailed findings regarding each contested issue of fact so as to demonstrate that it considered and decided upon each of the parties' contentions, and that it did not act in an arbitrary manner. A decision need not expressly declare every consideration that might possibly be relevant to any party that might appeal the decision. Generally, the courts will apply a liberal and generous construction to the findings made by the decider of fact. Remember when all else fails, (1) read the directions; (2) make and follow a checklist; (3) know the criteria required; (4) apply the evidence to the criteria; (5) make the decision by tying the evidence to the criteria, not just by reciting the criteria back. Also remember if you were asked to review a decision what evidence would you expect to have or find in the record that would justify and support the original decision that was made. 9
Questions? Thank you for attending. Contact information: davep@northeast.edu or phone (402) 844-7046 10