ROLE OF FINDINGS IN LOCAL GOVERNMENT DECISIONS
"The absence of ... findings and the inadequacy of the evidence in the record to support respondent’s determination requires vacatur of that determination and remittal of the matter to respondent for a hearing, proper findings and a new determination...."
Graham v. Town of Tully Planning Board, 237 A.D.2d 923 (4th Dept. 1997).
Case law reporters are replete with cases which end with similar statements. While the local government body which has made the determination subject to remand has the opportunity to justify its decision, this opportunity is not without cost to both the local government and the community. Local governments must bear the expense of defending board decisions, while applicants or others aggrieved must bear both the expense of the challenge and the cost of lost economic benefit through completion of the project. This problem can be avoided. Some "rules of thumb" will help guide local boards to make defensible findings which justify a final determination, whatever it may be.
Local boards, such as planning boards, zoning boards of appeals, historic preservation boards and environmental quality review boards, are subject to standard rules of administrative law and do not have unfettered decision-making authority. They may make a decision only when all of the requirements specified in state statute or local law are addressed. The making of administrative findings provides administrative boards with the vehicle for demonstrating their full compliance with all procedural and substantive requirements of law.
What are findings? Simply put, findings are statements which, with analysis, connect the legal requirements governing the determination made to the facts contained in the record. They are something more than mere reiteration of legal requirements and facts. Proper findings can demonstrate that the "administrative agency determination is shored up by substantial evidence." (300 Gramatan Ave. Associates v. State Division of Human Rights, 45 N.Y.2d 176, 181 (1978)).
Conclusory statements are always inadequate to sustain a decision upon review by a court. (See Loram Development Corp. v. Planning Bd. of the Town of Huntington, 53 A.D.2d 670 (1976); 300 Gramatan Ave. Associates, supra; Bowers v. Aron, 142 A.D.2d 32 (1988); Morrone v. Bennett, 164 A.D.2d 887 (1990)). Further, a decision based upon conclusory statements, wholly unsupported by factual information contained in the record, will be struck down as arbitrary and capricious without opportunity for remand. (See Frangella Mushroom Farms, Inc. v. Zoning Board of Appeals of the Town of Coeymans, 87 A.D.2d 962, aff’d 57 N.Y.2d 811 (1982); Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown, 24 A.D.3d 1312 (2005).)
How may findings be supported by the record? First, findings must specifically identify facts found in the record which the board considers relevant in the application of the substantive legal standard relating to their decision. Second, findings must evidence some analysis of those facts in relation to the substantive legal standard.
The record is largely composed of facts which come to the board via different avenues: copies of newspaper notices, transcripts and minutes of meetings, public notices, the application and supporting documentation (such as an environmental impact statement), testimony of interested members of the community presented at public hearings, written submissions during the public comment period, expert opinion submitted orally or in written form, and through personal observations and knowledge of board members. A decision which successfully relates the factual evidence to the applicable legal standards in the findings, is given great deference in court:
"It is well settled that a determination of a Zoning Board of Appeals should not be set aside unless illegal, arbitrary or an abuse of discretion....If a decision is rational and is supported by substantial evidence, a reviewing court may not substitute its judgment for that of a zoning board of appeals even if an opposite conclusion might logically be drawn (Rice, Practice Commentaries, McKinney’s Cons Laws of N.Y., Book 63, Village Law, §7-712-c, at 461...).... Those conclusions are supported by the record and provide ample support for the ZBA’s determination...." (citations omitted)
Village of Honeoye Falls v. Town of Mendon Zoning Board of Appeals, 237 A.D.2d 929, 930 (4th Dept. 1997); see also Fuhst v. Foley, 45 N.Y.2d 441 (1978).
When reviewing a decision of an administrative body, courts will limit their review to "ascertaining whether the determination has a rational basis and is supported by substantial evidence." (Hanson v. Valenty, 198 A.D.2d 598 (3rd Dept. 1993)). Findings provide the courts with the material for conducting this limited review ("[t]his necessarily requires the zoning board to set forth in its determination the evidence it relied upon in reaching its conclusions...." Hanson, 198 A.D.2d at 598-599). For example, in Sasso v. Osgood (86 N.Y.2d 374 (1995)) the court specifically identified facts in the record (referring to "photographs and other materials in the record") which amply provided the rational basis for the zoning board of appeals’ conclusion that each standard for issuing the variance in question had been met.
The board must discern, however, truly factual information from mere "general sentiment," for the latter cannot support a finding:
"We conclude that the denial of the petition for an area variance is arbitrary and capricious and is not supported by substantial evidence.... The record shows that respondent’s determination was not the result of a balancing of all of the appropriate factors (see, Town Law, §267-b...), but was the result of general community opposition."
D’Angelo v. Zoning Board of the Town of Webster, 229 A.D.2d 945 (1996) lve. for app. den. 89 N.Y.2d 803. (See also Market Square Properties v. Town of Guilderland, 66 N.Y.2d 893 (1985), where the court held that, "[w]hile expert opinion regarding traffic patterns may not be disregarded in favor of generalized community objections...here there was other basis in the record for respondent’s determination...to which evidence respondent’s discretion and common sense judgments might be applied in accordance with the town ordinance....").
The Court of Appeals has clearly held that generalized community opposition, in the absence of substantial evidence relating to the substantive legal grounds for making a determination, cannot constitute support for the denial of an application. (See Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000 (1997); Metro Enviro Transfer, LLC v. Vil. of Croton-on-Hudson, 5 N.Y.3d 236 (2005)). First hand observations of neighbors incorporated into the record are distinguishable from "conclusory or general observations" and may be considered by a board in its discretion. (See Michelson v. Warshavsky, 236 A.D.2d 406 (2nd Dept. 1997)). Similarly, personal observations and knowledge of board members may provide the factual basis for a decision, so long as those observations and knowledge are entered into the record. (See Filangeri v. Pulichene, 229 A.D.2d 702 (3rd Dept. 1996); Tunis-Huntington Dodge, Inc.v. Horn, 29 A.D.2d 990 (2nd Dept. 1968)). It is axiomatic that information within the knowledge of the administrative decision maker but outside the record of the matter before it cannot be utilized to support its decision. (See Simpson v. Wolansky, 38 N.Y.2d 391 (1975); Mulligan’s Night Club & Café, Inc. v. Buffalo Common Council, 184 A.D.2d 1016 (4th Dept. 1992); Langhorne v. Jackson, 206 A.D.2d 666 (3rd Dept. 1994).
Courts will defer to the determinations of an administrative body relating to credibility of witnesses, the weight of evidence and relevance of evidence to the applicable legal standards:
"The agency’s assessment of the credibility of witnesses, inferences to be drawn from the evidence and findings of fact are conclusive if supported by substantial evidence...." Jackson’s Marina, Inc. v. Jorling, 193 A.D.2d 863, 866 (3rd Dept. 1993). (See, also, Hirsch v. New York State Department of Motor Vehicles, 182 A.D.2d 761 (2nd Dept. 1992), citing PASNY v. Williams, 101 A.D.2d 659 (3rd Dept. 1984).
If a board has failed to make findings, courts generally will remit the matter back to the board:
"Here, respondent [planning board] failed to make findings supporting its determination that development of lots 1 through 10 was acceptable but that, absent a second access, development of lots 11 through 25 was unacceptable. The absence of such findings and the inadequacy of the evidence in the record to support respondent’s determination requires vacatur of that determination and remittal of the matter to respondent for a hearing, proper findings and a new determination...."(citations omitted)
Graham v. Town of Tully Planning Board, supra, 237 A.D.2d 923 at 924.
Occasionally, however, a failure to making findings and lack of sufficiency of the record will result in annulment of the board’s decision and remittal with direction that the permit be issued. (Van Wormer v. Planning Board of the Town of Richland, 158 A.D.2d 995 (4th Dept. 1990)). Where remand for the purpose of making factual findings will serve no purpose "because the record clearly indicates that the Board’s action in revoking petitioner’s excavation permit is contrary to law [relating to nonconforming uses]" the court may step in to decide the matter even absent the existence of findings by the local zoning board of appeals. (See Syracuse Aggregate v. Weise, 51 N.Y.2d 278 (1980); Kreye v. Bordino, 302 A.D.2d 465 (2d Dept., 2003)). A zoning board of appeals, in particular, when considering a variance application, is governed by criteria set forth in state law. (See Gen. City L. §81-b; Town L. §267-b; Vil. L. §7-712-b.) Where a board of appeals fails to consider and make findings relating to those criteria, its decision will be struck down. (See Henthorne v. Molloy, 270 A.D.2d 420 (2nd Dept. 2000); Lazzara v. Kern, 269 A.D.2d 449 (2nd Dept. 2000).)
“The findings of the board must disclose all of the evidence relied on by the board in reaching its decision. [citations omitted] Only by such full disclosure can the reviewing court determine whether the board’s decision is based upon facts supported by evidence in the record that has a rational basis, and reverse or remand in the event such facts are absent, [citations omitted] or affirm in the event the board’s decision is supported by evidence. [citations omitted]”
Salkin, 2 N.Y. Zoning Law & Practice §28:32 (Oct. 2006 Update)).
Findings memorialize the process the administrative board undertakes when it makes a decision. It must first collect the evidence found in the record, then appraise the evidence by assigning it appropriate weight and credibility. Only then may the board correlate the evidence with the applicable legal standard to result in findings which, cumulatively, yield the board’s final decision. The board which clearly memorializes this process by including detailed and carefully written findings in its decisions has given itself the best insurance against successful challenge.
This memorandum provides general information and guidance only. Local board members are encouraged to seek legal counsel for any specific question or matter under review.