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Bridging the Analytical Gap

Understanding Findings in the Planning Approval Process

Introduction

Findings are the cornerstone of planning permit decisions in California. Yet I’ve never seen anyone tweet about whether the findings for a particular development project made any sense. I hope to change that, by explaining what "findings" are and how they’re used in practice. Maybe understanding findings will help you follow the proceedings on a particular development in your community, maybe it will help you advocate for changes at the local legislative level that improve the development review process, or maybe it’ll just give you some satisfaction understanding the process when you walk around town and wondering “how the hell did that get approved?”

I've also included some resources below that describe findings in a bit more technical detail. I highly recommend them!

In Theory

When a governmental body exercises its independent judgement in deciding whether to do something (in this case a City or County approving a permit to allow some development), that decision is considered "discretionary." This is in contrast to ministerial decisions, which are theoretically a rote application of adopted rules. But how does an agency exercise its discretion in approving a permit? What is it even supposed to be looking at? And how does it support it’s decision?

This is where the findings come in. Findings are “legally relevant subconclusions which expose the agency’s mode of analysis of facts, regulations, and policies, and bridge the analytical gap between raw data and ultimate decision.” (Topanga, supra at pp. 515 and 516.). This court decision outlined five basic purposes for making findings:

Provide a framework for making principled decisions, enhancing the integrity of the administrative process;
Help make analysis orderly and reduce the likelihood that the agency will randomly leap from evidence to conclusions;
Enable the parties to determine whether and on what basis they should seek judicial review and remedy;
Apprise a reviewing court of the basis for the agency’s action; and,
Serve a public relations function by helping to persuade the parties that administrative decision making is careful, reasoned, and equitable.

Sometimes state or local law specifies what findings are needed to support a particular decision. The findings to approve a Variance are stated in California Government Code section 65906. Other discretionary decisions are more ambiguous. There is no prescription in State Planning and Zoning Law for the findings needed to a grant a Conditional Use Permit, and some local zoning ordinances have very broad language that indicates that their decision making body must render findings in support of it’s decision, “including but not limited to, X, Y, and Z.” Regardless, Findings must be relevant to the issue.

Additionally, the findings must be supported by substantial evidence. Is there enough evidence in the record to reasonably support the finding, and therefore the agency’s decision. A land use attorney would be able to better describes what constitutes “substantial.” At the same time, the findings (and agencies decision) may still be valid even if the evidence could reasonably support a different conclusion. All the times findings are required, for example due to environmental review, and the role of findings for legislative actions gets a but more complicated, just know that what I'm talking about here is pretty focused on planning permits, but there are a lot of other situations where findings are important.

For example, if a City has a design review process, to grant approval of a new building they may require design review and a finding that the design "not be injurious to the neighborhood character or public vieshed." The City may also require a finding that there be no zoning violations on a property to grant any kind of permit. For our imaginary design review, assuming it's approved, the approval (typically a permit approval resolution) would typically state that the permit meets the required finding, then detail out the evidence supporting it. The evidence is sometimes a simple list, and sometimes incredibly detailed analysis. The more an agency is challenged, the more detailed they tend to get with their permit resolutions. The design is harmonious because the applicant submitted a fancy rendering and the site plan meets all our design guidelines. Their are no violations because we didn't find any in our database and we didn't see any on our site visit, etc. These are easily flipped. The design isn't harmonious because it doesn't meet any of the guidelines and everyone at the hearing said it was a bad fit for the area. There are violations because of unpermitted removal of fifty oak trees in preparation for hte project, etc. etc. Boiling all this jargon down, for approving discretionary permits a City or County needs to:

Base their decision on analyses that are relevant to the matter they’re considering: the “findings.”
Support their decision with materials, often project plans, technical reports, and the results of any public outreach effort that substantiates their conclusions: the “evidence.”
Show their work by documenting both the mode of analysis and supporting evidence: this is typically a permit resolution.

In Practice

Local agency staff, hearing bodies (such as a local Planning Commission or City Council), and the more savy applicants (sometimes developers, sometimes land use attorneys) generally know what findings are required for a given permit from the outset. Even if a jurisdictions “Conditional Use Permit” criteria don’t specify every single finding needed, if you look at a dozen or so permit approval resolutions you can get a pulse of what gets focused on and what gets glossed over in a jurisdiction pretty quickly.

The findings become an analytical lens that frames how the players in the zoning game are looking at a project (at least when it comes to permitting). When you know what conclusions need to be drawn to approve a project, that informs what staff will request, how a developer will frame their project, and how the planning commission will customarily review the materials. If a tree protection ordinance says “there must be no feasible alternative to the proposed tree removal,” people on both sides of the permit counter would look at that and go “okay, well what the hell would be needed to show that there is no ‘feasible’ alternative.”

And that answer is going to depend on past practice, the composition and leanings of decision makers such as a Planning Commission, issues that concern the local community, agency knowledge and staffing levels, and the availability of technical professionals in the private sector, etc. In some places, a site plan with the tree smack in the middle of a proposed house may be enough. In others, it may require an arborist report or contemplating alternative house designs.

This gets more into my opinion territory: this system is highly elastic. Developers regularly complain that the permitting process is too difficult. However policies are often relaxed or glossed over when they aren’t be expedient, or there aren't the resources to update them. What I believe is particularly vexing to the development community is that this system asks them not to do specific things, but to engage in an uncertain and public decision making process. And if an agency is understaffed to go through an uncertain and public decision making processes over a period of several months or even years.