Friday, October 30, 2015

Commissioner's Corner: A safe harbor for land use administrative findings?

For the last few weeks, I've been thinking a lot about administrative findings because of my role as a planning commissioner.  You know:  findings of fact, conclusions of law, decision.  "Bridge the analytical gap."  All that.  

While major jurisdictions do findings with no sweat, a lot of small jurisdictions don't.  It makes me wonder:  why aren't there statewide "safe harbor" forms for land use decision administrative findings?  Do any states do this?

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Hi Stephen, I haven't talked to you in a while. As a land use law adjunct and government land use attorney, I wouldn't recommend my agency use form findings. We've discussed this topic quite a bit at my agency as a cost and time saver, but there's really no substitute for carefully written findings explaining why the facts of a particular matter meet code criteria. I can't imagine any statewide form would be reliable enough for me to feel comfortable.

Posted by: Jeff Litwak | Oct 30, 2015 8:23:00 PM

Jeff, Great to hear from you. We should talk more off-line. I agree with you that it is far preferable to have case-specific findings, and that probably won't go away in major cities and jurisdictions like yours that have highly complicated projects. Since moving to Idaho, though, I've realized that there are a lot of rural jurisdictions, even some up-and-coming fast-growth cities, that have no idea how to draft competent findings. My interest in a forms approach is to provide a sort of baseline for city attorney work that would ensure some minimal recitation of fact, law, and application of fact to law. Maybe it's too complicated to do so meaningfully, but if that is the case, I do wonder how to assist jurisdictions that do not have great attorneys like you, and yet still need to do the basic work of administrative law embedded in land use decisionmaking.

Posted by: Stephen R. Miller | Nov 12, 2015 8:20:13 AM