There’s been plenty of fodder for posts lately, but I’ll skip to the 60-day rule decision handed down yesterday by the Supreme Court since that closes the loop on a running discussion here. I thought the Supreme Court might be looking at making a change in the “60-day rule,” and now it’s happened. The Court of Appeals disposed of this case (Johnson v. Cook County) in a brief unpublished opinion last August that followed prior decisions requiring a local government to not only act upon a zoning request in 60 days, but also to adopt written findings within that time-frame if the request is denied. The key portion of the statute (15.99, subd. 2(a)) is this:
Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.
The logic behind the Court of Appeals’ ruling, and the prior cases supporting it, is that adopting written findings is an essential part of a “denial,” and the denial is ineffective unless those findings exist. This is certainly good practice, as any board or council is foolish to take any adverse action without fully stating its reasons for doing so on the record. Putting findings into a written resolution for a vote, particularly on zoning matters that have likely gone through staff review and a planning commission hearing, is simply common sense. That said, the question remains whether doing so is mandatory to avoid automatic approval or is simply a good idea.
The Supreme Court now says, “just a good idea.” It hinted in a 2007 decision, Hans Hagen Homes, that written findings might not be mandatory. Of course, it’s unfortunate that the Court chose to write “denial is complete when a city votes to deny the application and adopts a written statement of its reasons for denial” (emphasis added), because that sure does makes it seem like the Supreme Court ratified the existing understanding of the Rule. Only in a footnote in Hans Hagen did the Court leave its tip that this may not be, saying that the statute could be read more narrowly, but since nobody asked for that, the Court would “leave it for another day.” Is it asking too much for opinion-writers to choose between declarative statements and hedges, or at least not to use both while discussing a single issue?
Anyway, the Court follows through on the hint buried in its 2007 footnote, and decides that written findings are not mandatory to avoid an automatic 60-day approval. Justice Dietzen, writing for the Court, separates the sentences of 15.99, sub 2 into component parts: a “time deadline,” a “penalty provision”, and a “written-reasons requirement.” From there, the implications are obvious; the “penalty provision” only references the “time deadline,” and thus the “written-reasons requirement” has no direct penalty, making it directory instead of mandatory. This makes sense as an abstract reading of the statute, but I’m disappointed that the Court completely avoids a discussion of the logic that supported the contrary reading – that written findings were necessary to “complete” a denial. In that reading, the “written-reasons” sentence is not a standalone requirement, but a clarification of the basic requirement to “approve or deny” requests within 60 days. This is a perfectly plausible reading, backed by past precedents, and as I noted above, good and competent practice. I won’t lie; this decision is a relief to county and city attorneys and makes compliance with the 60-day rule much, much simpler. I just think that when a court knows it’s taking the law in a new direction, it has to put in the effort to not just explain its logic, but explain why it’s rejecting the logic of previous decisions.
Again, it remains best practice to have written findings ready to go if a board or a council might deny a zoning request, even after this opinion. Justice Dietzen notes as much in the home stretch of the opinion, reminding the audience that if a decision is made without findings or identified factual support, it will likely be overturned in court. This decision simply frees a board or council to state its reasons verbally at a meeting while moving the denial of a request (or in making a vote against approval), and having those reasons transcribed at a later date.