To What Extent Does a Zoning Board of Adjustment or Planning Board Have to Make Specific Findings of Fact to Support Its Decision?

In a recent case, Dietz et al. v. Town of Tuftonboro (decided January 28, 2019), the New Hampshire Supreme Court held that a Zoning Board of Adjustment (ZBA) did not have to make written findings to support the granting of an equitable waiver pursuant to RSA 674:33-a. In that case, the owner of a house on Lake Winnipesaukee sought an equitable waiver because two additions that it had built (and which had been allowed by the Town of Tuftonboro building inspector) violated the 50-foot Lake setback requirement of the Town’s Zoning Ordinance. (The Supreme Court’s decision addressed other issues of law, but this blog will focus on the question of whether a ZBA needs to make written findings of fact supporting its decisions.) 

RSA 674:33-a, I, provides that: “The [ZBA] shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the [zoning ordinance] requirement, if and only if the board makes all of the following findings.” The statute then lists four findings that the ZBA must make in order to grant the equitable waiver. Reasoning that the statute did not explicitly state that written findings were required, and that if the Legislature intended to require written findings, it could have done so, the Court held that the ZBA had not erred by failing to make specific written findings on the statutory criteria. 

The Court’s decision with respect to equitable waivers is consistent with its decisions in regard to written factual findings to support the granting of a variance. Presumably, although this author is not aware of any cases so holding, a ZBA also does not need to make specific findings when granting a special exception. 

However, these general principles should not lull ZBA members into thinking that they need only make broad conclusory findings with respect to the variance, special exception, or equitable waiver criteria. Though a ZBA may not generally be required to make specific written findings, ZBA members should keep in mind the following:

1. The Court in Dietz et al v. Town of Tuftonboro stated that “although disclosure of specific findings of fact by a board of adjustment may often facilitate judicial review, the absence of findings, at least where there is no request therefor, is not in and of itself error” (emphasis added). Thus, the Court has suggested that a ZBA should make specific findings of fact if requested to do so by the applicant or another interested party. If such request is made, the ZBA should make the specific findings that are requested, as long as they reasonably relate to the variance, special exception, or equitable waiver criteria that are at issue.
2. Even when the ZBA does not make specific findings of fact with respect to the variance, special exception, or equitable waiver criteria, ZBA members should at least discuss those criteria and give them due consideration.
3. ZBA members should be aware of whether the ZBA’s own Rules of Procedure require specific findings to be made. Although the Supreme Court has held that the applicable statutes do not require specific findings to be made, a particular municipality’s Rules of Procedure could require them. If so, the Rules would govern and specific findings should be made.

Law Court Finds FOAA Complaint Properly Dismissed

Maine’s Law Court recently issued a brief decision reminding Freedom of Access Act (FOAA) practitioners that FOAA complaints are subject to dismissal, like any other complaint, where they fail to allege facts that would entitle a plaintiff to relief under the statute. 

The facts in the case, Dubois v. Town of Arundel, involved a denial by the Town of Arundel’s Planning Board of an application to renew a conditional use permit submitted by an agricultural composting facility. The Planning Board denied the application during a public hearing, which was not attended by any representative from the composting facility, including the two plaintiffs in the case. Following the Planning Board’s denial, the plaintiffs filed a complaint alleging that a memorandum drafted by the Town Planner and distributed to the Planning Board members led to an illegal executive session. The Town of Arundel moved to dismiss the complaint for failure to state a claim that would entitle the plaintiffs to relief, which the trial court granted and the plaintiffs then appealed.

On appeal, the plaintiffs argued that a complaint brought under the FOAA is not subject to dismissal for failure to state a claim. However, the Law Court rejected this argument and found no merit for the proposition that a motion to dismiss is barred in the context of a FOAA complaint. 

Turning to the substance, the Law Court examined the complaint to determine whether it alleged facts that would entitle the plaintiffs to relief. Here, the Law Court explained that the complaint failed to allege that any action was actually taken during an executive session that would violate the FOAA. On the contrary, the complaint merely alleged that a memo from the Town Planner led to an executive session, and that the Planning Board then held a public hearing at which the composting facility’s application was denied. Consequently, because the complaint failed to allege that any specific action was taken during an executive session, the Law Court found that the trial court properly dismissed the complaint for failure to state a claim under the FOAA that would entitle the plaintiffs to relief.

Animal-Related Ordinances – Out of Sight and Out of Mind?

When was the last time you checked your animal-related ordinances to confirm that they were keeping up with, and meeting the needs of, your ever-changing community? These ordinances are easy to overlook until you need them and then, unfortunately, the tools you need may not be there. Maine law provides broad authority to enact and enforce animal-related ordinances. 

We see in our state, municipalities that include within their borders urban, residential, industrial, rural, and agricultural areas. We also see municipalities entering into contract zones or approving conditional zoning ordinances as appropriate when faced with development projects. Our rapidly changing communities need animal-related ordinances that will keep up with the new realities. For example, the person who has for many years kept horses on his or her property that may have escaped from their fenced in area from time to time, finds that his or her property is now near a road with increased traffic—an escaped horse puts both the drivers of automobiles and the horses at risk. Or, how about the person that keeps their dogs tied outside all the time. While every municipality should consider having an ordinance that puts some parameters around this, especially in the heat of the summer and the frigid winters, what do you do about the barking? Maybe you rely on your noise ordinance, but will it be enough? 

New realities include how animals are viewed, especially pets. The pet business is growing and raking in billions of dollars, which evidences the evolving view of animals kept in the household. You may recall the outrage generated when the Town of Scarborough was discussing enacting ordinances that would ban dogs from certain of its beaches during certain times. Even though this was in response to an incident related to a bird and the IF&W threatened to fine the Town, members of the community demanded that the Town act proportionately. The Town created an Animal Control Advisory Committee who generated a report attempting to balance the environmental issues with the rights and needs of dog owners. 

Also for consideration: Do you allow residents to keep a small number of chickens, even in urban areas, to provide eggs to the family? Does your ordinance contain reasonable requirements for dog day care and boarding facilities, a service used by so many people? 

Finally and importantly, are your animal-related ordinances humane and actually help you get the results you wish to achieve? Do they impose the punishment on the right party—the person violating the ordinance as opposed to the animals he or she is supposed to care for? Do you have the tools you need?