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Thread: Staff findings and recommendations

  1. #1
    Cyburbian plankton's avatar
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    Staff findings and recommendations

    The issue of staff recommendations and the compilation of findings is becoming a source for much conversation and controversy in my jurisdiction lately. I am interested in learning about your experiences and preferences and if you have any advice in this matter.

    I am aware that staff reports vary widely with respect to the rendering of findings of fact and recommendations. Although I have never worked for a jurisdiction that precludes their planning staff from rendering findings or making recommendations in their reports, I am aware of ones that do and believe that we may be headed in that direction. It is my understanding that in these situations, findings are not written until after the decision making body has rendered its decision. Once that occurs, then staff (if staff analyses in the report to the Board are representative of the decision) or the applicant (if staff anlyses are deemed to be in error and the applicant's reasoning prevails) writes that findings and presents them to Board, usually at the next meeting, for ratification. I am accustomed to writing staff analyses, proposing findings, and making recommendations in my reports and seeing the decision makers either agree or disagree with staff's conclusions, and in the instances where they disagree with staff's findings, adopting the applicant's proposed findings (or having the applicant write new or modified ones, as appropriate).

    Here is a little more information about my particular situation:

    Quasi-judicial map amendments and comprehensive plan amendments require two hearings: Planning Commission and Council (PC makes a recommendation to the Council). It is becoming more and more common to have the Planning Commission's recommendations to the Council not be reflective of staff's judgements about the merits of a proposal. In these situations, the applicant, not staff, renders the findings that are included in the PC's recommendation to the Council. No big problem there, but here's my real dilemma:

    If you were staff to a zone change request that, in your analyses to the Planning Commission, did not meet the standards but the PC approved it anyway (and had the applicant render the findings), what would you envision your staff report, or cover memo, to the Council looking like? Would you set your prior analyses aside and forward just the PC decision document to the Council effectively muting any staff interjections? Would you attach your previous (unheeded) staff report as an exhibit to the decision document to the Council and reference it in your cover memo? If asked questions about the proposal at the Council hearing would you respond only on behalf of the Planning Commission? I am struggling with my (non-planner) superiors leaning towards a policy that would effectively shut planning staff out of the dialogue at public hearings on land use matters, particularly during the final hearing of a two-hearing process. Ethically, I question whether I can allow this to happen under the AICP Code. But, in reality, how can I stop it? My superiors are very well educated and experienced; education is not the answer. They support the professionalism of my department but this situation is 100% political and although I (nor they) am (are) ready to dust off my (our) resume(s) things are really getting dicey for me and my subordinate staff and I'm afraid I may be the fall guy here unless I can come up with a workable solution.

    So, what words of wisdom might you have to impart??

  2. #2
    Cyburbian Habanero's avatar
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    Usually, what I've done is show that Staff is of one recommendation and Planning Commission's vote was xyz and what their recommendation is for the project and, if known, why they voted for the project (usually taken from minutes). I don't think you'd want to tie the hands of the Council and you shouldn't mislead or misrepresent conformance if it doesn't exist.
    When Jesus said "love your enemies", he probably didn't mean kill them.

  3. #3
    Cyburbian mike gurnee's avatar
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    What Habanero said. Been in that boat many times. Support your commission; support your professional recommendation...twisting in the wind is a phrase that comes to mind. Your cover memo to the governing body should state that staff recommended differently than the commission, and that they should review your attached report for details. Your professional opinion does not change, I had a lawyer catch me on that one when I was defending the planning commission.

    I have never heard of an applicant determining findings, however.

  4. #4
    Cyburbian KSharpe's avatar
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    We make 2 docs before the meeting, a draft decision and order, both positive and negative. This allows them to change just one part of the findings (whatever they disagreed with) and leave the rest alone. That's how the "justfiy" their decision.
    Do you want to pet my monkey?

  5. #5
    Unfrozen Caveman Planner mendelman's avatar
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    For Plan Commission, there are no "formal" findings written up. We pass along our staff report (ie recommendation), verbatim PC minutes and a letter just describing the actual vote on the motion. Since the minutes are verbatim, they are a defacto findings.

    For Zoning Board of Appeals, the chair writes the findings and they are reviewed and approved at the next meeting. ZBA is the final say for variances, so no going to the electeds.

    In a previous job, the PC chair wrote all the findings for the commission to be forwarded to the electeds and the ZBA chair made everyone on ZBA take turn writing the findings for individual hearings and then the findings were passed on to the electeds.

    I think by making the commission/board draft their own findings, one removes the possibility of accusations towards staff about "putting words in their mouths".
    I'm sorry. Is my bias showing?

    Let's not be didactic in this profession, because that is a path to disillusion and irrelevancy.

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  6. #6
    Cyburbian Seabishop's avatar
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    Staff reports for larger applications have all the facts, but don't make recommendations unless its an incomplete application. Lots of times issues come out in the public hearing that you haven't thought about. We don't have a 2-step process here, so I don't have to forward one commission's recommendations to another one.

  7. #7
    Cyburbian Otis's avatar
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    I prepare abrief cover memo that sets out the background, describes the procedural history, and explains why the planning commission differed from the staff recommendation, and attach both the adopted recommendation and the original staff report. Your superiors' opinion and policies might change after they get the bill from their attorney for a LUBA appeal and the accompanying remand from LUBA. Of course, a good lawyer can spin a set of facts to justify a finding either way.

  8. #8
    Cyburbian hilldweller's avatar
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    Having an indepedent Planning Board would worry me as staff. Is there at least advisement from legal staff or a contract attorney on proper procedures?

  9. #9
    Cyburbian KSharpe's avatar
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    They often get lippy with us and then the Board's counsel will stand up and put them in their place. It's important for them to be reminded about what their role is, what powers they actually have, etc.
    Do you want to pet my monkey?

  10. #10
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    I think the staff relationship to the Planning Commission needs to improve. Apparently staff doesn't have their trust. Could it be a recommendation or facts issued by staff in the past blew up in their face? I would sit down one on one with the chair or another member and ask what the problem is.

    Hate to be the bearer of bad news, especially on my first post, but you may want to start looking for a new job. That may give you a chance to start over and develop a good relationship with your PC. On the other hand if you are new to your position, give it time for the trust to develop.

  11. #11
    Cyburbian Plus pcjournal's avatar
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    I served for nine years on my city's planning commission (population 40,000), including three years as Chair. We received detailed staff findings and recommendations. I thought this was an essential part of the process. But we did a few things to clarify this, as I know that some of those attending commission meetings thought this biased the process (especially, if their position was at odds with the staff recommendations).

    -- the planning commission chair indicated, usually at the start of the meeting, the role of the staff recommendations, and the fact that the planning commission was not bound by them, but had an independent responsibility for evaluating the application.
    -- the planning commission in fact, fairly regularly, made adjustments to the staff recommendations and, on occasion, completely disagreed with them. Over time, this gave us credibility that, in fact, we were not just blindly accepting the staffs' findings and recommendations.

    Personally, I found the staff findings and recommendations extremely important in saving me time, and allowing me to get a better grasp of the project BEFORE the meeting. It also gave me the chance to question staff about recommendations I either was not clear about or didn't agree with, and to better prepare questions I might have to the applicant. My sense is that almost all of the other commissioners I served with would agree with that.

    Of course, the above was possible because staff clearly spelled out how their findings and recommendations related to each of the review criteria applicable to a particular project. Well prepared staff findings and recommendations can also greatly assist the process by giving folks something to consider and react to (not just commissioners, but the applicant and public as well). This does require, in my view, that the staff report be available to the commissioners AND others at least a week or so before the meeting so no one feels blind-sided.

  12. #12
    Cyburbian Otis's avatar
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    Quote Originally posted by Otis View post
    Your superiors' opinion and policies might change after they get the bill from their attorney for a LUBA appeal and the accompanying remand from LUBA. Of course, a good lawyer can spin a set of facts to justify a finding either way.
    I assumed that you are in Oregon and the Land Use Board of Appeals would handle appeals from your jurisdiction.

  13. #13
    Cyburbian DrumLineKid's avatar
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    Well...

    Before I left and crashed the PC was complaining that staff didn't include outright recommendations. They wanted us to take a stand. As the Director, I introduced all applications to the City Council, lrt them know what the PC passed and then gave them my recommendation. We had a good, interested, able PC that knew what to ask.

    I should have pushed the staff recommendation to the PC more.




    DLK
    "There are people in every time and every land who want to stop history in its tracks. They fear the future, mistrust the present and invoke the security of a comfortable past which, in fact, never existed." RFK

  14. #14
    Cyburbian plankton's avatar
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    Quote Originally posted by Otis View post
    I prepare a brief cover memo that sets out the background, describes the procedural history, and explains why the planning commission differed from the staff recommendation, and attach both the adopted recommendation and the original staff report. Your superiors' opinion and policies might change after they get the bill from their attorney for a LUBA appeal and the accompanying remand from LUBA.
    Many insightful comments, thank you all.

    Otis, you hit the nail on the head. The findings that our PC have adopted recently lack in substance and detail. One is left wondering how each criterion has been addressed, much less met. A couple of anecdotal paragraphs seems to do the trick. One such decision was overturned on appeal to the Council but others will likely make their way to LUBA and almost certainly be remanded based on insufficient findings. I am dedicated to serving the public's interest (not to "starting over" when politics run amok) and this includes keeping costs down in the department.

    Habanero - I'm afraid I don't understand what you mean by "tieing the Council's hands". I would not mislead or misrepresent conformance with a standard. I provide an objective evaluation of each request against the applicable criteria as spelled out in the code and plan.

    mike gurnee - When you write, "I have never heard of an applicant determining findings" what do you mean? I understand that applicants don't adopt findings, but applicants bear the burden of proof and propose findings all the time.

    Thanks again, everyone.

  15. #15
    NIMBY asshatterer Plus Richmond Jake's avatar
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    IMO, it's an essential function of a planner performing current planning functions to provide written "findings of fact." In California it's called "bridging the gap" between the basic information...owner, applicant, location, land use designation, zoning, service providers, known environmental constraints, development restrictions, etc....and staff's recommendation.

    In my experience, as a zoning administrator conducting public hearings and the hundreds of public hearings before planning commissions and governing boards, it is not uncommon to amend written findings before a final decision is made. That's why they're on paper and not carved in stone.
    RJ is the KING of . The One

  16. #16
    Super Moderator luckless pedestrian's avatar
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    for staff reports, it depends on the Board too as to how you deliver the message - pesky Boards that don't like being told what to do get the classic:

    The Board might want to consider requiring.inquiring, etc...

    Whereas other, less sensitive Boards can get:

    Staff recommends the Board require/inquire, etc....

    you can also put a DRAFT watermark on decisions you prepare in advance of a meeting - I have often prepared 2 decisions if I don't know which way they are going or at least to leave the phrase approve/deny blank

    but in your specific case, just prepare staff reports in advance of meetings, following al lthe good advice you have already received here -these reports are automatically part of the record, and use the more squirrelly language above - it's okay if they decide to not heed your advice, don't worry -

    the real problem is the system - you have 2 local bodies reviewing the same thing!

  17. #17
    Cyburbian ruralplanner's avatar
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    For our planning & zoning committee, we develop a staff report inclusive of findings and a recommendation based upon these findings for rezone petitions and subdivisions. This report, along with the decision of the planning committee is always passed on to the full county board—even if the committee goes against our recommendation. If there is a particular petition that becomes political, we have taken the position of not making a recommendation, but will still present findings and other pertinent information in a staff report. This is rare though. In then end, even if our staff recommendation is not adhered to, the staff report becomes public record throughout the process and clearly demonstrates the credibility of our department and staff. Findings here are written before the meeting.

    For the Board of Adjustment (appeals), we used to develop a staff report complete with findings, a recommendation and restrictions we wanted to see on a proposal. A few years ago the BOA directed us to not make a recommendation and refrain from including our findings and staff desired restrictions. Apparently the BOA was appearing, to the public, as pawn of planning & zoning staff. Findings here are written after the meeting.

    For rural Planned Unit Developments. In this third instance, the findings are preexisting in the ordinance and it is a simple as a ‘findings’ check box of yes/no for the committee to go though at a public meeting. Any check in a no box spells automatic denial. The staff report on these consists of a paragraph. Before any rural PUD goes before the Committee, there is a significant amount of negotiation between staff and the applicant as the end result will include an agreement to a conservation easement held by the county on certain lands. By the time all of the negotiations are complete, a yes check is guaranteed. Findings here are predetermined by ordinance—you either meet them or you don’t.

    Quote Originally posted by pcjournal View post
    Well prepared staff findings and recommendations can also greatly assist the process by giving folks something to consider and react to (not just commissioners, but the applicant and public as well). This does require, in my view, that the staff report be available to the commissioners AND others at least a week or so before the meeting so no one feels blind-sided.
    We do this for our rezones and subdivisions. It works well and really can garner alot of well thought out public input that can affect the final decision. In a number of cases, the public has caused the Committee to vote in opposition to the staff recomendation and in some cases staff even agreed with the public, and in hindsight would have had a different recomendation.
    Last edited by mendelman; 15 Jan 2008 at 11:01 AM.

  18. #18
    Cyburbian solarstar's avatar
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    This happens here a lot, mostly because the PC and the Council seem to be on different wavelengths. I modify the Council staff report to have the same info as the PC report, but with some language such as "PC recommended ..." in italics after each recommendation. That way I'm still presenting my professional recommendation, but am also forwarding the formal recommendation of the PC. I wouldn't try to state why the PC recommended a specific item, unless they actually formally state why, since it's interpretative and I can't always understand why myself. Plus, it is up to the PC (and the PC's attorney) to justify their findings when questioned, not you, especially when they weren't yours in the first place.

    Re findings, I agree that an applicant can propose findings they think are met, but I'm going to clearly state it is proposed by them in the staff report. My findings may completely disagree with that (and often do), and the PC findings may differ again.

  19. #19
    Cyburbian Habanero's avatar
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    Quote Originally posted by plankton View post

    Habanero - I'm afraid I don't understand what you mean by "tieing the Council's hands". I would not mislead or misrepresent conformance with a standard. I provide an objective evaluation of each request against the applicable criteria as spelled out in the code and plan.
    In my experience it's better to let a Council come to their own decision rather than rally for either side or "tie their hands" so to speak so they are made to look foolish should they vote one way or another. That's why, in my opinion, you state both sides and let them have the vote.
    When Jesus said "love your enemies", he probably didn't mean kill them.

  20. #20
    Cyburbian plankton's avatar
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    Quote Originally posted by Habanero View post
    In my experience it's better to let a Council come to their own decision rather than rally for either side or "tie their hands" so to speak so they are made to look foolish should they vote one way or another. That's why, in my opinion, you state both sides and let them have the vote.
    Understood. Thanks for clarifying. I just finished up the R&O for the PC's recommendation to the Council and have inserted the adopted (applicant's) findings as Exhibit A and my staff report with proposed (unheeded) findings as Exhibit B.

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