Preparation of Findings:
A Question of Timing and Justification
In resolving the question at which point in the process the decision making
body should adopt findings, Topanga again provides guidance. Topanga
states that findings should enhance the integrity of the administrative
process, help make analysis orderly, and reduce the likelihood that the
agency will randomly leap from evidence to conclusions. This requires the
decisionmakers to identify the reasons supporting a decision prior to taking
action.
However, in the daily reality of acting on a myriad of different land use
applications, a local body may face a number of factors making it difficult
to formulate detailed and well-articulated findings and reduce them to writing
at the point of the decision. Factors affecting this include the nature
of the decision, the evidence, and the presence or absence of external factors
like state mandated time limits requiring local agencies to act within specific
time periods. The following example illustrates how these factors influence
the adoption of findings.
This illustration shows several practical difficulties in adopting adequate
findings. First, lay commissioners may not readily assimilate new information
and may have difficulty verbalizing their rationale in the form of structured
findings needed to support their decisions, especially if such decisions
closely follow lengthy public hearings and statutory time limits are present.
Second, in jurisdictions where commissions act by motion without a required
resolution, no ready mechanism exists by which to prepare findings.
In this example, had the commission agreed with the staff analysis, it could
have adopted findings by reference to the staff report, since making findings
by reference is permissible. (McMillan v. American General Finance Company
(1976) 60 Cal.App.3d 175, 184.) Many agencies have their staffs prepare
proposed findings for their decisionmakers to consider and then use, revise,
or reject. Suggested findings can help the decisionmakers identify the appropriate
information, policies, and regulations governing the proposed project and
guide them in making the necessary findings. Of course, before adopting
any staff-prepared findings, the decisionmakers must review them objectively
and, where necessary, revise them to make sure that they accurately reflect
both their own conclusions and the evidence in the record -- which is likely
to be supplemented in the hearing after the preparation of the staff report.
In addition, the decision making body's failure to review these findings
objectively exposes them to a challenge for acting without appropriate deliberation.
That is, in the end, the commissioners would not have adopted findings of
their own design but, instead, would adopt findings reflecting the staff
opinion of what the decision should be.
Where the opportunity exists, many local land use decision making bodies
take tentative action and then direct staff to draft a written statement
of the supporting reasons as reflected in the evidence and the deliberative
discussion. The staff prepared draft can then be reviewed for adoption as
the agency's findings at a later meeting. This method provides the opportunity
to review the entire record carefully, including the evidence presented
during the public hearings. Of course, if this review of the record reveals
that there is an evidentiary gap, the decisionmakers must be prepared to
alter their decision. This method, however, is not without its drawbacks,
particularly when time is of the essence in arriving at a decision. In a
decision making body's haste to act, it may overlook essential information
that would have an impact on the outcome. Such an oversight may lead to
a post hoc rationalization -- a rationalization of the decision after the
fact. At least six California courts in the past have indicated their disapproval
of post hoc rationalizations as a basis for land use decisions. (Environmental
Defense Fund, Inc. v. Coastside County Water District (1972) 27 Cal.App.3d
695, 706; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68,
79 & 81; Mount Sutro Defense Committee v. Regents of University of
California (1978) 77 Cal.App.3d 20, 36-37; Rural Land Owners Assn.
v. City Council of Lodi (1983) 143 Cal.App.3d 1013, 1021; Resources
Defense Fund v. Local Agency Formation Commission of Santa Cruz Co.
(1987) 191 Cal.App.3d 886, 900; and Laurel Heights Improvement Assn.
v. Regents of University of California (1988) 47 Cal.3d 376, 394).
Whether or not a decision making body relies on staff-prepared findings
pre- or post-hearing, the goals are the same. These goals are to ensure
that decisions are made in an open and reasonable manner, based upon articulated
reasons which in turn are based upon the evidence in the record.
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Prepared by:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-322-2318