Checklist For Defensible Decision Making

Elements Of Defensible Procedures

• Notice
  Notice should be adequate and timely. It should be reasonably calculated to notify interested parties of a proposed action and give them an opportunity to present their objections. The average person must be able to understand the notice. It must allow sufficient time for interested parties to prepare. Also it must meet statutory and/or charter deadlines and posting requirements.
• Opportunity To Be Heard
  All parties interested in a proposed action must have the opportunity to be heard and present evidence to support their position. Hearings must be open to the public.
• Full Disclosure
  All parties must have full access to information, statements and evidence relied upon by decision-makers to make their decision. Ex parte communications should be avoided. Avoid acting on information received at the last minute.
• Findings
  Findings are the legal "footprints" that should be left in administrative proceedings to explain how the decision-maker progressed from the facts through established policies to the decision. The decision must be explicitly stated, as well as the underlying rationale.
• Unbiased Decisions
  The decision maker should be clear of bias or prejudice. Conflicts of interest or apparent conflicts of interest must be identified. In some but not all cases, abstention is required.
• Timely Decisions
  Decisions should be made within a reasonable period of time. The decision-maker must avoid having the process used as a delaying tactic.
• Complete Records
  A full and clear record must be kept of the proceedings, including not just the deliberation of the decision-makers, but also all evidence which is offered and relied upon by the decision-makers.
• Clear Rules
  Rules for the proceedings should be set out clearly in advance and followed.

Elements Of Defensible Decisions: Questions To Consider

• Does The Regulation Advance A Legitimate Public Interest?
  Review old regulations to ensure they have the intent and effect of accomplishing results that are legitimate public policy objectives.
• Is The Regulation A Reasonable Way To Accomplish That Public Interest?
  There may be many ways to accomplish a certain objective, but one must balance public interest and private interest. The particular regulatory approach should be reasonable in light of this balancing.
• Can The Relationship Between The Regulation And Public Interest Be Documented?
  A regulatory body should be able to show how the particular zoning regulation advances the public interest. Typically, this is best accomplished by ensuring that zoning decisions are made in accordance with a land use plan. See discussion of findings below.
• Does The Regulation Allow A Reasonable Economic Use Of Property?
  Again, the public interest being served by the regulation must be balanced with the private interests such that there is some reasonable use of the property under the zoning regulation.
• Is The Regulation Fairly Applied?
  Generally speaking, similarly situated property should be regulated equally. If not, care should be taken to document legitimate reasons as to why this is not the case.

Findings Of Fact

What Are They?
Findings of fact are a citation of specific facts about the application that the approval body finds to be true and which led to its conclusion that the application conforms or fails to conform to one or more applicable approval criteria. They are:

• Legal footprints
• Findings of fact and conclusions of law
• Factual foundations for your conclusions as to whether your standards are met

Principles Of Findings

• Your decisions must be based on facts
• The facts must address the standards
• The burden of proof is on the applicant
• Information is not the same things as "facts"
• Weighing of the evidence is your responsibility
• You do not have to believe everything you hear
• Opinions without a factual basis are without merit
• Public sentiment is not a basis for decisions
• You can rely on personal knowledge, but make it a part of the record

Tips For Determining The Findings

• Use the application process to put the burden on the applicant
• Use the staff report as a starting point
• Announce the rules in advance
• Encourage factual testimony
• Have the standards in front of you
• Ask questions designed to get evidence related to the standards
• Keep your records neat and complete - documents and exhibits
• Keep the evidence phase separate from the deliberation phase
• Deliberate the facts and standards
• Assess compliance explicitly
• Make careful motions with stated reasons
• Have a "package" of application, records, staff report, motion and minutes:
  • lists the record
  • lists the standards
  • reflects a weighing of the evidence
  • determines compliance
  • clearly states the decision with any conditions

Adapted from Rocky Mountain Land Use Institute 2001 Annual Conference handout by Gregory Dale, AICP, Principal, McBride Dale Clarion. Cincinnati, Ohio.