Administrative decisions require careful application to ordinance standards: Part 2
Base decisions only on explicit standards in the ordinance to avoid a challenge of being unreasonable, arbitrary or capricious.
The first article in this two-part Michigan State University Extension series explains the importance of ordinance standards in making administrative decisions and differentiates between discretionary and nondiscretionary standards. This article covers the importance of detailed minutes to document conformance (or not) with ordinance standards.
When making decisions on administrative matters (e.g., site plans, special land uses, planned unit developments) and quasi-judicial cases (e.g., appeals, variances), decision makers must ensure that required tests or standards are employed, substantiated, and documented in the record. To assist in collecting this information and achieving consistency and equity in reviewing applications, use of a checklist is encouraged. Denying an application because of a vague notion that the use is “not a good idea” or will “harm the neighborhood” is not enough (see “Vague or subjective ordinance standards: In the court’s opinion they stink!”). The record must show sufficient facts to back up the findings made according to the ordinance standards. If the impact on traffic is of concern, for example, describe those concerns as precisely and factually as possible.
If a decision is challenged, the importance of using the ordinance standards becomes evident. A well-supported decision provides the background needed to build a solid legal foundation for the decision. For this reason, administrative bodies (planning commissions, zoning boards of appeals) should take minutes with greater detail than those of a legislative body; see MSU Extension “Land Use Series” pamphlet: “How to take minutes for administrative decisions.” For example, for each case the minutes should reflect at least four things:
- Findings of fact;
- Reasons for the decision (each reason based on or tied to a standard in the ordinance);
- the decision; and
- Any conditions of approval.
These four items do not need to be all in one motion, but all four do need to be in the minutes, or attached to the minutes, as a single motion, more than one motion, in a staff report, part of the discussion leading up to a motion(s), or another combination.
In arriving at findings of fact, the commission or board reviews all the material on the case (the application, staff reports, statements made at the public hearing) and decides which statements are true. In other words, the members shift through all the material and find the facts for the case. Seldom will all facts support one decision or another. That is okay and expected. The next step is to sort through the findings of fact to determine if a preponderance, not always a majority, of facts exist that leads to one decision or the other.
Then, it is a recitation of reasons for the decision. Often one reason is stated for each standard germane to the case. This leads one to determine if that particular standard was met or not. For instance, one, of likely several, reasons for approving an application might be, “The total square footage of all structures detailed in the application does not exceed section 3704.E. requiring no more than 30 percent coverage of a parcel.”
Next is the decision ‒ to approve, to approve with conditions, or to deny the request.
Finally, is a list of the conditions of approval, if any. For example, a discretionary standard to minimize impacts on neighboring properties may not be met in the application, but if the applicant built a buffer along a property line, then that standard might be met. The requirement for the additional buffer would then be an appropriate condition of approval.