Loading...
HomeMy WebLinkAbout2022 09 20 AIS Training for Legally Defensible Findings {00025646:1} AGENDA ITEM SUMMARY Meeting Date: 9/20/2022 Meeting Type: Work Session Staff Contact/Dept.: Kristina Kraaz, CAO Staff Phone No: 541-744-4062 Estimated Time: 30 minutes S P R I N G F I E L D PLANNING COMMISSION Council Goals: Mandate ITEM TITLE: Training: Writing Legally Defensible Findings ACTION REQUESTED: Receive training on the requirements to write legally defensible findings for land use decisions. ISSUE STATEMENT: Oregon state law requires that land use decisions be accompanied by written findings supported by substantial evidence in the record of the decision. City planning staff prepare initial reports of findings for the Commission’s review during public hearings, but the Commission is ultimately responsible for adopting the findings for their decisions. Commissioners’ knowledge about what goes into drafting legally valid and defensible findings will assist the Commission in adopting decisions that are legally valid and defensible overall. ATTACHMENTS: Attachment 1 – Presentation Slides DISCUSSION: This training session focuses on what is required, under Oregon land use law, for legally defensible findings: • Identifying the need for findings in quasi-judicial vs legislative decisions; • Determining the relevant criteria for decision-making; • Applying evidence to the criteria to determine if it’s met; • Imposing conditions of approval to when criteria are not met; • Understanding the constitutional limitations on conditions of approval; and • Stating an ultimate conclusion whether the criteria is met, based on the adopted findings. Writing Legally Defensible Findings for Land Use Actions SPRINGFIELD PLANNING COMMISSION TRAINING SEPTEMBER 20, 2022 ADAPTED FROM OCAA CLE PRESENTATION SPRING 2018 BY LAUREN SOMMERS AND EMILY JEROME, CITY OF EUGENE CITY ATTORNEY’S OFFICE Attachment 1, Page 1 of 25 Purpose of Findings ❑Show that the adopted criteria were applied; the final decision is not arbitrary. ❑Define ambiguous terms / interpret code sections. ❑Show that the decision-maker considered the arguments and evidence presented. ❑Set out the basis for the final decision. ❑Provide a complete record for appellate body (e.g. LUBA). 2Attachment 1, Page 2 of 25 Evolution of Findings ❑Application Narrative ❑Staff Report ❑Testimony / Supplemental Information ❑Deliberations (Including staff response to testimony) ❑Final Decision 3Attachment 1, Page 3 of 25 Findings for Quasi-Judicial & Limited Land Use Decisions ORS 227.173, 197.763 and 197.195 Must: ❑Be written. ❑Explain the criteria and standards considered relevant to the decision. ❑State the facts relied upon in rendering the decision. ❑Explain the justification for the decision based on the criteria, standards and facts. 4Attachment 1, Page 4 of 25 Findings for Legislative Decisions ❑No statutory requirement for findings but required under Springfield Development Code. ❑Findings will be valuable in the case of appeal to show applicable criteria were applied. ❑Use same structure as required for quasi-judicial decisions. 5Attachment 1, Page 5 of 25 Relevant Criteria & Standards ❑Same criteria and standards referenced in notice; if different, explain reasoning and consider whether additional process (notice) is needed. ❑Set out every criterion, with findings beneath each one. ❑Break down compound criteria into separate parts, with separate findings under each part. ❑Include criteria that are explicitly incorporated into other criteria (e.g. “consistency with comprehensive plan policies,” “consistency with development standards in Section #.#-### of code”). ❑Include requirements not referenced in code, but that apply due to State law (e.g. Statewide Planning Goals for a comprehensive plan amendment). ❑For permit decisions, do NOT include requirements from the municipal code or other documents that are not adopted as land use regulations 6Attachment 1, Page 6 of 25 Ambiguous Criteria / Interpretations ❑Define terms that could be interpreted in different ways: ◦“Neighborhood character” ◦“Adverse impacts” ◦“Substantial conformance” ❑Be clear: “The Planning Commission defines ‘neighborhood character’ as the predominant: architectural style, height, and setbacks of structures with ¼ mile of the development site.” ❑If an application is proposing housing, and ORS 197.307 requires “clear and objective” criteria, do not refer to a criterion as “ambiguous.” Do not apply any criteria that are ambiguous to proposed housing. 7Attachment 1, Page 7 of 25 Conflicting Criteria Reconcile Conflicting Criteria ❑Conflicting Criteria need to be reconciled. 1.Does plan or code include policy for addressing conflicts? If so, follow code explanation for what standards prevail. 2.If code is silent, generally the more specific criterion prevails over more general. For example, criterion for an overlay zone generally prevails over base zone criteria. ❑Explain how conflict is resolved in the findings. 8Attachment 1, Page 8 of 25 State the Facts / Evidence Relied Upon Under each criterion: ❑Describe or list the evidence in the record that leads to the determination the criterion is met / not met. ❑Evidence can come from the applicant, staff, or interested parties. ❑A staff person’s or other interested party’s bare opinion or conclusion is not evidence 9Attachment 1, Page 9 of 25 Apply Evidence to the Criterion / Provide Analysis ❑Explain how the facts relate to the listed criteria. Which evidence is relevant/ irrelevant? ❑Identify and reconcile conflicting evidence. Clearly explain which evidence is relied upon and why (Most current data? Most reliable source? Proof of factual inaccuracy?). ❑Explain which facts provide support for the decision / how do those facts lead to the conclusion about the criterion? ❑Avoid “incorporating by reference.” If you must, be explicit, point to specific text (not a whole document), and attach the document to the final decision. 10Attachment 1, Page 10 of 25 Apply Evidence to the Criterion / Provide Analysis (cont.) ❑To find a criterion met, the findings must identify evidence in the record that is “substantial” (could a reasonable person rely upon this evidence as a demonstration that the criterion is satisfied?). ❑Promises or intentions expressed in applicant’s narrative is not evidence or part of its proposal.If needed to meet the criterion, make the promise binding through a condition of approval. ❑Insufficient analysis will result in a remand for “conclusory findings” (findings that state conclusion only) 11Attachment 1, Page 11 of 25 Example Finding Criteria: 5.17-125 C.The proposed development shall comply with all applicable public and private design and construction standards contained in this Code and other applicable regulations. *** 4.4-105 E.At least 65 percent of each required planting area shall be covered with living plant materials within 5 years of the date of installation. The living plant materials shall be distributed throughout the required planting area. The planting acceptable per 1,000 square feet of required planting area is as follows: 1.As a minimum, 2 trees not less than 6 feet in height that are at least 2 inches in caliper (at the time of planting, not including root ball); and Finding:The amount of required planting area for the site is 3,000 square feet. Therefore, at least six trees that are at least 6 feet in height are required as part of the site plan.The proposal is consistent with this criterion because four existing 12' pine trees will be retained on the site along the northern and eastern property lines, and the landscaping plan includes planting of two additional dogwood trees that are 6' tall and at least 2 inches in caliper within the front yard landscaping area. 12Attachment 1, Page 12 of 25 Address All Participants’ Issues / Arguments ❑Address every issue / argument raised under the applicable criterion. ❑Explain reason(s) that decision-maker does not agree with argument or assertion, or finds other arguments or assertions more persuasive or reliable (not legally necessary, but valuable analysis on appeal). ❑If an argument is not raised with enough specificity to be addressed, state so in the findings. 13Attachment 1, Page 13 of 25 If the Criterion is Not Satisfied, Can it be Satisfied if a Condition is Imposed? ❑City is not obligated to impose a condition (except for housing development) ❑Condition must be limited to what is required in order to meet the criterion. ❑Condition’s requirement must be clear: ◦Cannot require a later discretionary decision to be made unless later decision provides same opportunity for public involvement as present decision-making process. 14Attachment 1, Page 14 of 25 Additional Findings When Imposing a Condition –Feasibility ❑Findings under the relevant criterion must identify evidence showing that the condition can feasibly be met. ❑Feasible means the solution is "possible, likely and reasonably certain to succeed." ❑Exception: Some kinds of conditions don't need to be "feasible," as long as they aren't legally precluded and can be met before final plan/plat approval: •State agency permit approvals •Access easements from adjoining landowners 15Attachment 1, Page 15 of 25 Additional Findings When Imposing a Condition –Dolan ❑If condition imposes a requirement that the developer dedicate land or an easement, or a requirement that the developer make or pay for an off-site improvement (e.g. transportation improvement to mitigate impact), findings must explain: ◦How does the condition relate to a legitimate government interest? ◦How does the condition relate to the impacts of the proposed development? ◦How is the condition “roughly proportionate” to the development’s impacts? ◦Why is this the last opportunity to impose the requirement on the developer? ❑Does not apply to off-site improvement requirements that are legislatively adopted and applied without discretionary decision-making (i.e. minimum street frontage improvement standards). 16Attachment 1, Page 16 of 25 Constitutional Right at Issue ❑Constitution of the United States –5th Amendment / “Takings Clause” •“Nor shall private property be taken for public purpose, without just compensation.” •Principal purpose is to “bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40 (1960). ❑Constitution of Oregon –Article I, Section 18 •“Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered.” ❑Definition of an exaction: •The government approves an application for development on the condition that the developer dedicate property to public use, make off-site improvements to public property, or pay money for the purpose of off-site improvements •An exaction is a “taking” for which the government must pay the landowner compensation unless government demonstrates the exaction is legally justified based on the U.S. Supreme Court’s instructions in the Nollan / Dolan cases and their progeny. 17Attachment 1, Page 17 of 25 Condition of Approval -Exaction ❑There must be a rational nexus between a legitimate government interest and the nature of the condition / exaction.Nollan v. California Coastal Commission (1987). ❑The extent of the exaction must be roughly proportional to the impacts of the proposed development. Dolan v. City of Tigard (1994). ❑Requires an “individualized determination” / findings ❑Does not require precise mathematical equality (but pretty close) ❑Public need or impacts of other future developments are immaterial 18Attachment 1, Page 18 of 25 Example Exaction Finding Criteria: 4.2-105G.1.Whenever an existing street of inadequate width is abutting or within a development area requiring Development Approval, dedication of additional right-of-way is required. Findings: The subject property has frontage abutting McKenzie Street.McKenzie Street is a major collector street, with a current right of way width of 42' and current paved curb-to-curb width of 22'.There is no on-street parking proposed along McKenzie Street.McKenzie street is an existing street of inadequate width because it does not comply with the minimum right of way and curb to curb widths in SDC 4.2-105.C.: the minimum right of way width for a major collector without on street parking is 56' and the minimum curb-to-curb width is 36'.Therefore, the application must be conditioned to require the applicant to dedicate and improve an additional 14' along the property's McKenzie Street frontage, to meet the criteria in 4.2-105G.1. 19Attachment 1, Page 19 of 25 Example Exaction Finding Findings Continued: The condition to require dedication and improvement of the 14' of additional right of way serves the public interest to mitigate impacts associated with additional congestion from development. The subject development is a partition that creates one new lot that may be developed with a single family dwelling, resulting in an increase of 9.5 vehicle trips per day, according to the ITE Manual. The property has 182' frontage along McKenzie Street.The approximate area to be dedicated and improved is 2,455 sq ft, which is about 258 sq ft per vehicle trip.As shown in the attached exactions analysis from the City's Transportation Engineer,the range of paving per vehicle trip for surrounding properties is in the range of 100-400 sq ft per vehicle trip.Therefore, the requirement to dedicate and improve 258 sq ft per new vehicle trip is roughly proportional to the congestion impacts of development. 20Attachment 1, Page 20 of 25 Another Example Exaction Finding Street Right of Way Dedication Upheld in McClure v. City of Springfield, 175 Or App 245 (2001) (three lot partition at M Street) "1. Conditions of approval # 7, # 8, # 9 and # 10 are directly proportional to the impacts of the subject development on the local street system of creating two new parcels as proposed [by petitioners]. This is because the minimum 19 new trips per day the development will generate will comprise 1.86 percent of the 1020 trips that directly and daily impact the sections of local street serving the development area before connecting to a minor arterial street. "2. The 4,371 square feet of right-of-way that is required to be dedicated comprises only 1.59 percent of the 276,700 square feet of planned right-of way that the proposed development will impact. Since the 1.59 percent right-of-way dedication is a smaller fraction than the [1.86] percent of the vehicle impacts that the new development will produce, the required dedication is roughly proportional to the impacts of the development and is, in fact, less tha[n] what the city could exact if a direct pro rata dedication were required." 21Attachment 1, Page 21 of 25 Another Example Exaction Finding “3. The required 4,371 square foot right-of-way dedication is roughly proportional to the impacts of creating two new developable lots in the [LDR zone] because the city has determined that in order to provide adequate service to one LDR lot a minimum of 3,206 square feet of rightof-way is necessary. Since two lots are being created, the city could require up to 6,412 square feet. Because 4,371 square feet is less than 6,412 square feet, the required dedication is less than what could be required if an exact pro rata dedication were required. “4. The creation of the panhandle driveway, as proposed by [petitioners], will impact the safety at the intersection of M Street and 8th Street by adding an additional 9 conflict points to the existing 32 conflict points and additional conflict points will occur with the school children using the most direct route to their appropriate public schools. It is difficult to assign a quantifiable value to decreased traffic safety in order to establish proportionality. Therefore, the proper method to mitigate the degraded traffic safety is to restore the level of safety to its state prior to the impact. [T]o mitigate the safety impacts specific to this proposed development, [petitioners] shall dedicate sufficient right of way to facilitate the extension of M Street and thereby reduce the number of conflict points to the number in existence prior to the development. In this case that required dedication is 20 feet along the southern property line. 22Attachment 1, Page 22 of 25 Make a Determination for Each Criterion ❑Although legally allowable, do not stop analysis once there is one unmet criterion. ❑Conclude analysis under each criterion with: o “For these reasons, the application satisfies the requirements of code section #-#.###.” o “With the imposition of the following condition, the application satisfies the requirements of code section #-#.###.” o “For these reasons, the application does not satisfy the requirements of code section #-#.###.” 23Attachment 1, Page 23 of 25 Make an Ultimate Conclusion ❑Conclusion: “Because the application does not satisfy the requirements of the criteria at Code Sections #-#.###, #-#.### and #-#.###, approval is denied.” “Because the application meets all applicable criteria, approval is granted.” “The application is conditionally approved, and the following conditions are imposed: . . .” 24Attachment 1, Page 24 of 25 Other Important Parts of Final Decision ❑Description of application and site. ❑Summary of process (date of application, date deemed complete, date of notice(s), date of hearing(s), date record closed, date of deliberations(s), extensions granted by applicant, etc.). ❑Explanation of determinations regarding: allegations of ex parte contact or bias, items stricken from the record, items accepted via official notice. ❑Attach any document that has been incorporated by reference. ❑Signature of the final decision-maker (i.e. the Chairperson). ❑Date of decision and date signed. 25Attachment 1, Page 25 of 25