Thursday, January 13, 2011

Findings of Fact and Zoning Boards

There's always been some controversy concerning findings of fact and conclusions of law in zoning Board cases. Generally speaking, courts across the entire country believe that findings of fact assist the reviewing court in understanding what the zoning board found as a matter of fact, and what their conclusions were as a matter of law. Unfortunately, here in Tennessee, there's been a split of opinion with regard to whether such findings were mandatory. At least one Tennessee Court of Appeals decision ruled that findings of fact and conclusions of law were not required in the zoning Board context, and another Court of Appeals decision ruled that findings of fact were required.

Some local zoning ordinances require findings and under those circumstances, certainly the zoning board must make findings in order to comply with local law. But the real issue always was if there were no local requirements, must the zoning board make findings of fact anyway? Because of the split in the opinions here in Tennessee, a reasonable argument could always be made that no finding was required. That was unfortunate because as mentioned above, such findings are virtually indispensable in trying to assist a reviewing court in understanding how the zoning board arrived at its decision.

Legislation will likely be introduced this year before the Tennessee General Assembly requiring such findings of fact to be made. The legislation which amends Tenn Code Ann. §§13-7-107 and 205 provides:
Each board of appeals shall adopt rules of procedure requiring that the board of appeals:
(1) make findings of fact, statements of material evidence, and statements of reasons forits actions as part of each motion or action of the board of appeals and
(2) keep a record of its resolutions, transactions, motions, actions, and determinations, which shall be a public record.
From my perspective, this is certainly a reasonable piece of legislation, very much overdue. There are several federal statutory provisions which essentially require findings of fact anyway. For example, the federal telecommunications act requires written findings on the part of the zoning board to justify its decisions. If federal statutory provisions are requiring such findings, the various boards of zoning appeals here in Tennessee might as well get accustomed to making findings of fact and conclusions of law in all other cases. It certainly makes it easier to understand how the decision was arrived at, and it is certainly easier to review the case on appeal before a reviewing court.

The various Planning Commissions across the state of Tennessee have always had to make findings of fact under the relevant enabling legislation for both regional and municipal planning commissions. Now sometimes some of the planning commissions fail to make those findings, but it is a requirement and the failure to do so could certainly result in a reversal of the decision of the planning commission. Assuming that this new proposed legislation passes, it will require that the zoning boards across the state of Tennessee follow the same procedural requirements as planning commissions have always had to. It is a laudable step in the right direction.

One final point which I think is important. The proposed amendment requiring findings of fact and conclusions of law does not require that the zoning board make those findings and conclusions on the date of the public hearing before the zoning board. I would suggest that one way to make these required findings and conclusions easier to record, would be to simply follow the same procedure with regard to voting for or against a particular proposal immediately after the public hearing on that proposal has concluded. However, the staff should then be directed (by a standing rule of the zoning board) to draft a minute entry or separate order for each case with suggested findings of fact and suggested conclusions of law. Those suggestions can be presented to the zoning board at the next meeting and they can then be adopted by the zoning board at that time. If the suggested findings as submitted by the staff do not fully encompass the basis of the board's decision, the suggestions can be modified to more closely correspond to the board's decision. Alternatively, if an attorney represented the prevailing party before the zoning board, the attorney could be charged with the responsibility of drafting the required findings of fact and conclusions of law.

By giving the staff additional time to develop appropriate findings, the overall process will be improved. This is essentially how a court of law arrives at its findings. Usually, the court indicates which way it intends to rule, and requests that the prevailing attorney prepare the order.

The requirement of making findings of fact and conclusions of law should not necessarily be perceived as an onerous task by the zoning board. By simply delegating the responsibility for drafting those findings to the staff, and postponing adoption of the findings until the subsequent meeting, the findings can be made in a reasonably simple manner but hopefully with an accuracy which allows reviewing courts to understand how and why the zoning board arrived at its conclusions.

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