By Jay T. Squires and Scott T. Anderson, partners; Rupp, Anderson, Squires & Waldspurger P.A.
Date: February 2017
Most challenges to county land use decisions involve on-the-record review. This means that it is critical that counties: 1) understand what the record is; and 2) assure that a solid, good record exists, so most likely the challenged decision is upheld.
What Is the Record?
The record consists of all the evidence considered by the county when processing and making land use decisions. It includes the application, reports, letters, correspondence, submittals, minutes and the findings of fact of the board.
It may include documents that were not submitted at the hearing or in conjunction with the application but were received previously and referred to or testified to in conjunction with the application. Photographs of a site are part of the record. And observations from a site visit, if reduced to writing, are part of the record.
Why Is the Record Important?
When a court considers a challenge to a land use decision, it is attempting to determine not only whether the decision was based on a legally sufficient reason(s), but also whether there are facts in the record to support the reasons. Thus, it is necessary to have good findings or reasons supporting a decision, and it is critical that there are facts in the record supporting the findings.
Stated another way, a board’s findings may look great on their face, but if there are no record facts to support the findings, then the decision is vulnerable. A good record prevents a challenging party from introducing new issues and facts in court. In this regard, courts have indicated that parties are prevented from introducing new issues and facts into the mix when the record is clear and complete.
Because the county controls the process, it is generally to a county’s advantage to prevent the introduction of facts and issues not considered by the board in making its decision. Also, an adequate record and good findings as a part of the record assure the burden remains with the challenging party to prove the challenged decision was unreasonable.
To the contrary, where the record is inadequate—particularly where findings are inadequate—courts have indicated the burden shifts to the county to demonstrate the reasonableness of its action. Which party carries the burden can often influence the outcome of the case.
Whose Obligation Is It to Create a Good Record?
As the administrative agency, it is the county’s obligation to compile and establish the record. Ultimately if litigation occurs, the county is required to transmit the record to the court. Where the litigation is in the court of appeals, such as a challenge to a conditional use permit decision, the appellate rules require the transmission of the administrative record at a certain point in the proceedings. And where the litigation is in district court, traditionally, the district court establishes timelines for transmission of the record as well.
Practical Tips for Building a Good Record
The following are a number of practical tips to ensure that the record is clear and complete.
- Tape the meeting: An audio record of a meeting is important because it can be reduced to transcript form. Having a transcript of sorts (or detailed minutes) generally constitutes a clear and complete record. As discussed above, this assures that the opposing party will not be able to introduce new evidence during litigation that was not provided during the county proceedings.
- Make notes/minutes of site visits: Commonly facts are uncovered in a physical inspection of property. These observations are not facts and do not become part of the record until they are reduced to written form. Make sure there is a written record of the facts. This may take the form of a separate memo, of separate minutes of the site visit, or of facts or observations recited at the meeting where the decision is made and preserved in the minutes of that meeting.
- Control the dissemination of documentation at hearings/meetings: Commonly applicants and audience members hand out letters and documents at meeting at which an application is being considered. Unless the particular document or documents are clearly identified in the meeting minutes, it can sometimes be unclear whether a document was in fact submitted. Best practice is to have either staff or the board chair read into the record what documents have been submitted and received at the meeting.
- Maintain control: Contentious land use applications can be challenging. People often talk over one another. As a situation gets more escalated, the likelihood that the record of the proceedings will get muddled increases. Use signup sheets for speakers to be recognized. Require all speakers to identify themselves before giving testimony. By keeping proceedings as orderly as possible, a county can minimize confusion in identifying the parameters of the record and what it contains.
- Assure that the motion on the application is clear: Upon completion of the hearing process, it is the board’s obligation to act on the application and state the reasons for the proposed action. The best approach is to have a motion made complete with the findings. For example, “Board Member X states: ‘I move to deny the permit application based on the following findings …’” The board member would then identify the findings that tie back to the particular permit standards in the county’s land use ordinance. This assures that all members know on what is being voted. If a motion is made to approve a permit, any conditions should also be clearly identified.
- Adopt good findings of fact: Findings of fact are necessary when a land use decision is made. “Findings” constitute an application of record facts to the decisional criteria for the application of issue. Best practice, for a number of reasons, is to adopt findings contemporaneously with the decision as discussed above.
By assuring that a good record exists, a county can make it most likely that its land use decisions will be upheld. Though it requires some effort, the effort in the end is well worth it.