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.