Drafting Land Use Findings
by Gary A. Kovacic, Esq. & Mary L. McMaster, Esq.
Courts are increasingly scrutinizing written findings in local land use decisions. Attorneys Gary Kovacic and Mary McMaster provide guidelines for planning commissions and boards when drafting land use findings.
Read excerpts from article:
The following guidelines are intended to help local decision
makers draft findings that will survive a court challenge. The
emphasis is on how to avoid making some common mistakes.
1. State all assumptions. One of the easiest "findings pitfalls"
for local planning officials to fall into is to rely on unstated
assumptions or to forget to articulate all of the logical links
in the decision making process. For example, every member of a
planning commission may know that the existing traffic on a
particular road is bad, and will be made worse by a proposed
development. However, if that observation is not explicitly
stated in the commission's written decision, it will not be
considered by a court reviewing the decision.
For particularly
complex decisions, it may be helpful for one of the
commissioners, or a staff member, to chart out the logic of the
commission's decision and to make sure that each piece of
evidence and each logical link has been articulated in the
findings.
2. Whenever a land use decision involves a condition, make sure
there is a clear logical link articulated between the condition
being imposed and the impacts of the project. A key factor in
the Nollan decision was the Supreme Court's inability to see the
"nexus" or link that the California Coastal Commission asserted
existed between the condition that was being imposed upon the
property owner and the environmental impacts of the project.
Findings should clearly articulate the connection between the
burdens of a project and the conditions being imposed. ...
[article continues with discussion of the following guidelines:
The full article can be ordered & downloaded. Click lightning bolt icon at top left.
3. If a project has been modified since findings for it were
written, make sure that the modifications will not necessitate
new or revised findings.
4. Use statutory requirements as guidelines for your findings.
5. Avoid findings that merely restate the law.
6. Put your findings in clear and understandable language.
7. Suspect Classes. Local agencies should carefully
prepare decisions that may be challenged as discriminatory
... ]