Agenda - 09-28-1981 - Laserfiche WebLink

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0 A 3 ilk/ hardship of which the applicant complains is due Pact based upon yubskantLai evidence, the board is to unique circumstances that result from the required also, in denying or allowing the appli- application of the ordinance to his land; and (3) cation, to "state the basic facts on which it the hardshiplp not the result of the applicant's relied with sufficient specificity to inform the own actions. Conversely, before denying a parties, as well as the couy , what induced this variance, the board must find that one of the decision [emphasis added]." While the court's requisite conditions precerlrint to the granting of meaning is not altogether clear, it is reasonable a variance does not exist. Clearly, these to assume that the court will no longer be willing "findings" are conclusions that the board can to accept general conclusions as "findings of reach only after proceeding through the inter- fact," mediate step of finding basic or pure facts that lead logically to these conclusions. Since the Officially Noticed Facts board is required to exercise its judgment with In some cases, the board may base its con- respect to each of these issues (among others) in elusions at least in part on facts that axe com- the process of acting upon every variance request, manly known, or on facts within the specialized it is most expedient to devise a standard form knowledge of the board, even though no evidence containing a statement of all these issues, has been taken in support of those facts. Such leaving space below each for the board to enter a facts are said to be "officially noticed." For statement of the basic facts it finds that lead it example, it may he common knowledge in a town that to conclude that each of those conditions pre- a major industry is building a plant in an area, cedent to the issuance of the variance either is or that a creek floods every spring, or that a or is not satisfied. certain stretch of road is dangerous. In ad- dition, because of its experience, a board may be The same sort of approach can be used with aware of certain facts not commonly known--e.g., respect to the special- use permit application, that because of certain special-use permits re- The typical zoning ordinance conditions the Gently granted, traffic in a certain area is issuance of a special-use permit on the board's Likely to increase in the near future. Whenever ability to make three types of "findings"; (]) such facts are used to support conclusions, they findings of actual fact relating to the appli- should be included as part of the statement of the dam's property—e.g., that the tract is of a findings of fact and some indication made that certain size; (2) findings of actual fact that the they have been officially noticed. petitioner's plans now indicate that the future development of the tract will be in accord with Two words of caution: First, officially the ordinances specifications for that type of noticed facts should not be confused with in- development--e.g., that setback access and parking formation about a particular applicant's case that requirements will be met; and (3) conclusions of a is within the knowledge of one or more board more general nature- e.g., that the proposed members, which information must be stated at the development will not substantially injure the hearing as part of5the evidence if it is properly value of adjoining or abutting property. As a to be considered. Officially noticed facts are matter of practice, when acting upon a special-use facts about which nn evidence need be taken, since permit application, the board should have before the facts involved are common knowledge, or about it a document (which can become part of the which evidence could not practically be taken, written decision) containing a checklist of all since the board is aware of the facts due to its the findings of actual fact [of both types (1) and specialized knowledge, Second, the board should (2) above] that the ordinance requires it to make.. be wary of taking official notice of "facts" that The same document nr form should also contain a are said to rest on common knowledge but in reality statement of the general conditions [type (3)) may rest only on assumptions--e.g., that property stated in the ordinance as prerequisites to the values decline where mobile homes are allowed in granting of the permit. Ihen under each general a residential neighborhood. condition, the board can state the actual facts it finds that lead it to conclude that each general Ordinance Interpretations condition precedent to the issionce of the permit When acting upon appeals from the zoning either is or is not satisfied, administrator, the board Is frequently required to interpret the zoning ordinance. These inter- Two factors indicate that the separate state- pretattons can take two forms, On one hand, the ment of actual facts and conclusions advocated board may have to make an interpretation that here not only is good practice but a]so may he involves applying the facts of a particular case required as a matter of law. First, the Admin- to certain words or phrases in the ordinance. For istrative Procedure Act requires that "findings of example, it may have to review a zonir..g admin- fact, if set forth in statutory language, shall be istrator's decision that a gasoline station is a accompanied by a concise and explicit �t3atement of "noxious or offensive" use within a neighborhood the underlying facts supporting them. As noted business district and is therefore prohibited by above, this statute is not binding on local govern- the zoning ordinance. Such interpretations ments, but it may be persuasive with the courts, involve conclusions that must he reasonable ac- Second, in the very important recent case of cording to the facts found by the board but have Refining Co. v. Board of Aldermen, the court little precedential value except in other cans stated that in addition to making findings of presenting nearly identical fact situations, On