Click here to be redirected to the APA Mobile Site optimized for mobile devices.
Administrative and Judicial Review of Land-Use DecisionsThis Chapter presents model legislation for the review of development permit applications by local governments, and judicial review of land-use decisions on these permits. It is intended to be a complete law, but it also contains such a range of options and ideas that it is possible to pick and choose from the alternatives when drafting legislation. Part one contains definitions and other provisions to be used throughout the Chapter. Part two describes the components of a unified development permit review process. Parts three and four contain authorizing legislation for a hearing examiner who could assume a variety of land-use advisory and decision-making responsibilities and a Land-Use Review Board that would replace the board of adjustment or zoning appeals. Part five describes a variety of administrative actions and remedies that a local government could authorize, including variances, conditional uses, and an experimental proposal for mediated agreements to modify the land development restrictions that apply to a property. Part six describes a uniform procedure for judicial review of land-use decisions. Chapter OutlineGeneral Provisions10-101 Definitions Unified Development Permit Review Process for Land-Use Decisions10-201 Development Permit; Unified Development Permit
Review Process; Inclusion of Amendment of Zoning Map Hearing Examiners10-301 Hearing Examiner System Land-Use Review Board10-401 Land-Use Review Board Authorized Administrative Actions and Remedies10-501 Authority to
Approve Judicial Review of Land-Use Decisions10-601 Purposes Table 10-1 Why Development Permitting Processes Should
Be Reformed Appendix — Articles on Administrative and Judicial Review of Land-Use DecisionsCross-References for Sections in Chapter 10 Cross-Reference for Sections in Chapter 10Section No. Cross-Reference to Section No. 10-101 10-201, 10-208, 10-502, 10-601 et seq., Ch. 11 10-201 10-101, 10-204, 10-209, 10-210 10-302 10-210, 10-301 10-501 10-301, 10-401, 10-502, 10-503 10-601 10-601 et seq. 10-609 10-606, 10-607 Administration Of Land Development Regulations[1] A local comprehensive plan is adopted, and land development regulations (zoning, subdivision, site plan review, impact fees, etc.) implementing it are enacted. But the process of carrying out the goals and policies of the plan doesn't just stop there. The application of the regulations occurs through an administrative process that has (or should have) a beginning, a middle, and an end. The applicant must know what development permit approvals are required, what information is needed, how long the review process will take, what person or body will act on the permits, and what happens if he or she disagrees with the decision of the local government—what are the procedures for appeal and judicial review of the decision. Administrative Review in the SZEA The Standard State Zoning Enabling Act (SZEA) did not expressly provide for a system of permits for development. In fact, the term "permit" does not even appear in the model act. Section 8 of the SZEA said simply that the local legislative body "may provide by ordinance for the enforcement of this act and of any ordinance or regulation made thereunder." As noted in Chapter 8, Local Land Development Regulation, the entity that was charged with handling appeals from administrative officers of the local government (presumably in interpretation of the zoning regulations in issuing permits and making enforcement decisions) and specialized adjudicatory decisions was the board of adjustment (hereinafter referred to the board of zoning adjustment or appeals, or BZA), composed of five members. The BZA was given the following powers:
The SZEA required a concurring vote of four members of the board — not just a simple majority — in order "to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in the ordinance."[3] The board was to keep minutes of its proceedings that showed the vote of each member upon each question as well as abstentions and absences. The board was not obligated to provide a decision in writing that explained its thinking or rationale, but was required to "keep records of its examinations."[4] The Changing Face of Development Permit Review It is fair to say that, since the SZEA was promulgated in the 1920s, the development review process has gotten a lot more complicated and unwieldy in many communities. The literature critiquing the modern land-use regulatory system, including reports of federal and state study commissions, is substantial. Some of that literature is summarized in Chapter 8; this Chapter includes an appendix that lists law journal articles on other aspects of administrative and judicial review. There are two principal reasons for the increased complexity and corresponding delay.[5] (1) The use of discretionary approvals. In the 1920s, even though the SZEA does not expressly mention it, the standard means of approving a development was a building permit or, sometimes, a building permit combined with a zoning permit. The local government's building official was usually the administrative officer who issued the permit. The building permit indicated that the building plans complied with the building code, which was typically a local ordinance, and the zoning permit or its equivalent (if such a permit were issued) confirmed that the proposed use of the property, and the building itself — if a new building or addition was to be constructed — complied with the zoning code.[6] The land-use system contemplated by the SZEA was intended to be self-executing. Once enacted, the zoning scheme would need few amendments. One indication of this was that, in the SZEA, a temporary zoning commission formulated the proposed zoning regulations and map of districts (although the city planning commission, where it existed, could also serve as the zoning commission). The SZEA rejected the idea that all changes to the zoning ordinance "be reported upon by the zoning commission before action on them can be taken by the legislative body." According to commentary in the SZEA, that would mean making such a commission a permanent body, "which may not be desirable."[7] Moreover, the SZEA argued that it was before the zoning ordinance was in place that "careful study and investigation" was necessary.[8] "Amendments to the original ordinance," stated a note in the SZEA, "do not as a rule require such comprehensive study and may be passed upon by the legislative body, provided property notice and opportunity for the public to express its views have been given."[9] The implication, of course, was that the zoning pattern was to be relatively static and, when it was modified, the change would be of much lesser significance. Early zoning codes, based on the ordinance in Euclid v. Ambler Realty,[10] the 1926 Supreme Court decision that established the constitutionality of zoning, contained a few zones — residential, commercial, and industrial. Such ordinances typically listed a large number of permitted and prohibited uses. According to one analysis, "[a] few uses such as funeral parlors or airports were so unique they were not permitted in any zone but were allowed under an ad hoc determination as a special exception."[11] This began to change in the 1960s and 1970s. As-of-right development permitting was supplanted by discretionary approaches, including — to name a few — conditional uses (also known as special exceptions), overlay zones, planned unit development, and cluster development, a variant of planned unit development where residential units are grouped together on a site.[12] The intention was to allow staging of development and to encourage innovative site design, the retention of open space, the protection of environmentally sensitive areas, and, through clustering, a reduction in infrastructure costs. These new techniques recognized that development had changed from a lot-by-lot approach to one at a much larger scale. Major, multiphase subdivisions, regional shopping centers, industrial parks, planned communities, and mixed use development became the rule rather than the exception in the suburbs. Accompanying this was the practice of zoning vacant areas into "holding zones," large-lot districts of one to five acres. This "wait-and-see" technique, as it has been termed, called for the developer to apply for a zone change for more intensive use as well as seek additional discretionary permits that governed the actual design of development. The process for obtaining the zone change and the discretionary permits is often a sequential, rather than a concurrent, one, and considerable negotiation and uncertainty (especially with neighboring property owners) occur at each step of the process. (2) The use of layered approvals. Closely related to the use of discretionary permitting is the layering of the approval process itself. For example, a proposed development may be subject to a state environmental quality act (see Chapter 12, Integrating State Environmental Quality Acts into Local Planning) that calls for the preparation of an environmental impact report upon which there can be considerable comment. The development may also be subject to specialized regulations that apply to wetlands and require separate authorizations from state and federal agencies. Within the local government itself the development proposal may need to be reviewed not only by the local planning commission and legislative body, but also by a specialized review board like an environmental commission (if special environmental resources are involved) and a design review/historic preservation commission (if, for example, the project is in a historic district, if the local government has adopted special design guidelines, or if a historic site or structure is involved).[13] These specialized local reviews were certainly not something that the SZEA anticipated or provided for. Each of these layers involves an additional level of discretion, sometimes with a public hearing, and telescopes the approval process. The Internal Administrative Process Even for routine permits, the process within the local government's administrative structure may be labyrinthine. The development proposal will need to be examined by the local government's planning department, the engineering department, various utility departments, the building department, and, in some cases, even the police department (for comments on security-conscious site design). How efficiently this review occurs will depend on formal organizational structure for development review (i.e., "one stop shopping" vs. being bounced back and forth between various local government offices), the skills of the reviewing staff and their willingness to complete reviews in a timely manner, the information provided to the applicant (e.g., clear application forms, checklists, and flow charts), and the deadlines for decisions, among other factors. Some of these factors may be influenced by statutes (such as number of hearings) or ordinances (such as application requirements and approval criteria), but other factors, such as the willingness of the local government review staff to coordinate with one another and provide clear advice and counsel to permit applicants at each step of the process or the recognition of problems with procedures in local development regulations, are more difficult to influence, except by the political leadership and administrators of the local government. Indeed, there may be citizen pressure to keep the local review process as difficult as possible as a device to stop or slow down growth, or — taking a Darwinian slant — to insure that the only development that occurs is accomplished by the most hardy, with the deepest pockets.[14] The Board of Adjustment Originally designed as the "safety valve" of land-use administration, the board of adjustment or board of zoning appeals (BZA) has been the subject of much criticism. These criticisms have focused on the board's expertise, the manner in which it makes decisions, and its propensity for granting use variances, which allow uses in a particular district that are not permitted by the zoning ordinance itself — in effect amending the zoning ordinance.[15] The model for the board that appears in the SZEA was based on New York City's board of appeals, which included five members with very strong technical qualifications: a chairman who was to be an architect or structural engineer; an architect member; a structural engineer member; a builder member; a fire chief member, plus two unspecified members. The chair was required to have not less than 15 years of experience, and the other technical members not less than 10 years. For the chair, the position was full-time, and could hold no other employment.[16] Under the SZEA, there were no membership requirements to serve on the board. Perhaps the drafters of the SZEA believed that local governments, of their own accord, would incorporate membership requirements into their local ordinances, and therefore legislative direction wasn't necessary. Some, in fact, did, and typical membership requirements may include an architect, an attorney, a general contractor, a licensed engineer, a licensed real estate broker, and/or a planner.[17] However, especially in small communities, it often proved difficult to get volunteers with the necessary expertise and, if they had expertise, to ensure that it was not tainted with conflict of interest. As a consequence, according to one trenchant commentary, "most cities simply eliminated qualifications and made the whole thing ultrademocratic. Anybody could join. This resulted in selection of board members without technical backgrounds to an 'expert administrative body.'"[18] The prevalence of lay boards, often without training, has often meant that the decision-making process at the local level is flawed with variances and other determinations frequently made on political grounds rather than by a careful analysis of facts against a set of stated criteria.[19] The BZA was established as a creature to grant variances, not to withhold them, and indeed, in many communities, that is exactly what they do. In some communities, the approval rate is as high as 95 percent of petitions.[20] Caseload varies, but it is heavy in most places. In a survey of 50 communities in 1996, the American Planning Association found:
One law journal article, which documented the problems of the board of zoning appeals in Lexington, Kentucky, appraised the problem as follows:
Some Solutions Commentary to Chapter 8, Local Land Development Regulation, describes the principle model statutes and studies on land-use controls, some of which bear on administration. These statutes and reports included: establishing a central permit authority and joint review committees whenever several local government boards or departments are involved in project approval; employing a hearing officer to conduct quasi-judicial hearings on development proposals (see below); and imposing substantive limitations on the powers of boards of appeal to grant variances.[23] Hearing Examiners One oft-recommended solution that has enjoyed increasing use is the hearing examiner.[24] The hearing examiner is an appointed official, typically with training in planning and law, who conducts quasi-judicial hearings on applications for development permits, conditional use permits, variances, planned unit developments, parcel-specific zone changes — and enters written findings based on the record established at the hearing, and either decides on the application, or a makes a recommendation to a local legislative or administrative body for a decision. A number of states expressly authorize the establishment of the zoning hearing examiner position.[25] The use of hearing examiners was a major recommendation of a special American Bar Association Advisory Commission on Housing and Urban Growth in a 1978 report (see commentary to Chapter 8). The hearing examiner is often used where there is a heavy caseload or where elected officials felt the BZA needed to be replaced with a single professional decision-maker who is accountable for the final decision (rather than having the decision-making responsibility diffused among a number of lay officials). The hearing examiner thus frees the time of planning commission members and elected officials. The hearing examiner may also be able to hold hearings more frequently than lay boards and commissions (since the problem of obtaining a quorum is eliminated) and thus can reduce delay for both large and small applicants. Duties and powers of a hearing examiner can vary. In some communities, the hearing examiner is limited to variances and conditional uses, and makes the final decision. In others, the hearing examiner may conduct hearings on subdivisions, if they are required, and rezonings, and makes a recommendation. There is still staff input to the hearing examiner, the same that is required for lay review bodies. The local government also typically adopts rules of procedure that govern the conduct of the hearing and the manner in which the hearing examiner renders a decision or recommendation. The ALI Code Proposals The American Law Institute's Model Land Development Code contained several proposals aimed at improving the administration of local land development review process. The ALI Code rejected a specific structure — a "rigid mold," in its terms — for local planning and land development control. Consequently, it did not include express authorizing legislation for a local planning commission and board of zoning appeals as direct participants in the development review process. Rather, as noted in commentary in Chapter 8, it required the designation of a Land Development Agency that would oversee all planning and development control, including permitting, with the internal organization to be determined by the local government itself or by the Agency. Under the Code, the Land Development Agency could be the local governing body or any committee, commission, board or officer of the local government. The Code also allowed the power to make decisions dealing with particular matters to be given to officers, panels, boards or committees, that were either within orwithout the Agency, but the final responsibility for the decision, regardless of who made it, was that of the Agency.[26] The Code recast the variance power under new terminology, although, as noted, it did not provide for a BZA to grant them. For example, the Land Development Agency could grant a special development permit allowing modifications in regulations applicable to a permitted or existing use, but, in the Code's language, "would differ in regard to some other characteristic from general development [development permitted as of right], if compliance with the general development provisions would cause practical difficulties [as defined in the Code]" and if the modification was no more than necessary and if it would not "significantly interfere with the enjoyment of other land in the vicinity."[27] This was the Code's version of a bulk or area variance, where the "practical difficulties" arose from some physical characteristic of the property. Table 10-1
Source: John Vranicar, Welford Sanders, and David Mosena, Streamlining Land-Use Regulation: A Guidebook for Local Governments, prepared by the American Planning Association for the U.S. Department of Housing and Urban Development Office of Policy Development and Research (Washington, D.C.: U.S.GPO, November 1980), 3. Another Code provision was a special development permit to allow economic use. This was the Code's language for the much-criticized use variance. Here the permit would be granted if the Land Development Agency, found, among other factors, that "the development will take place on a parcel of land that is not, either alone or in conjunction with any adjacent land in common ownership, reasonably capable of economic use under the general [as of right] development regulations."[28] Unfortunately, the Code did not articulate a test of how a local government was to determine when land was not "reasonably capable of economic use." Nor did it impose any substantive limitation on this power to prevent abuses, unless an aggrieved party wanted to litigate the question of whether the special development permit had indeed been properly granted. The Code addressed the question of streamlining through two devices: (1) a statewide permit register; and (2) joint hearings for development requiring multiple permits. The Code required the State Land Planning Agency to publish and make available a listing of all the permits required in connection with development by any governmental agency (including the federal government, state agencies, local governments, and special districts). These permits could include "construction permits" (which involve the review of detailed drawings) like building permits and state elevator permits, permits that had no substantial relationship to the planning and land development control process (such as a license for a beauty or barber shop), and all other permits, including such as those involving preliminary or tentative approval of applications for construction permits, which were termed "initial development permits."[29] The joint hearing procedure enabled a developer whose project involved more than one permit to seek such a joint hearing on all of the permits at the same time. The procedure did not change any of the substantive standards under which the permits are to be issued, but merely authorized a coordinated procedure to simplify and speed up the administrative process. The decision to conduct the joint hearing is that of the State Land Planning Agency, but the hearing itself is held within the jurisdiction of the local government where the development was located. The Code authorized a panel of hearing officers to prepare a recommended decision on the basis of the joint hearing. The recommendation would not change any substantive standards for the issuance of permits but merely set time limits within which decision must be made and provides a consolidated procedure for judicial review. If any permit-issuing agency failed to issue a decision within the time required by the Code, then it would be deemed to have adopted the recommended decision of the hearing examiner panel.[30] Consolidated Permits; Joint Hearings A number of states now authorize consolidated permitting or joint hearings. For example, Oregon allows local governments to established a "consolidated procedure by which an applicant may apply at one time for all permits or zone changes needed for a development project."[31] Washington state allows a local government to combine any hearing on a project permit with any hearing that may be held by another local, state, regional, federal, or other agency provided that the hearing is held within the geographic boundary of the local government; hearings must be combined if requested by an applicant so long as statutory time periods are satisfied or the applicant agrees to a schedule that would provide additional time to allow for the combination of hearings.[32] Maryland has a statutory provision that allows "joint and consolidated hearings on permits" for projects that involve development permits by state agencies and local governments.[33] Solutions Not Requiring Enabling Legislation Some of the solutions aimed at improving the efficiency of the development review process, making it more predictable, fair, and efficient, have not necessarily been the creatures of enabling legislation, but instead have been homegrown—the result of local administrative initiatives.[34] These include practices such as:
Table 10-2
Source: National Institute of Building Sciences, Land-Use Regulations Handbook (Washington, D.C.: The Institute, 1990), 15-16. • interdepartmental review committees with a designated coordinator
who would coordinate reviews by multiple agencies and resolve problems; A Caveat It should be emphasized that there are limits to what state enabling legislation can accomplish in the development review area, since the process is so susceptible to: (a) the political and administrative direction that the local review agencies receive; (b) their organizational culture (in particular whether the local review agency sees value in efficiency, prompt decisions, certainty, and predictability); and (c) the capabilities and competence of the staff and boards conducting permit reviews. Moreover, if a local (or state) reviewing agency wishes to drag its feet to demonstrate its importance or independence or if the local political culture rewards delay, or when sweet reason otherwise fails, there is little else one can do short of litigation. General Provisions10-101 Definitions As used in this Chapter: "Administrative Review" means a review of an application for a development permit based on documents, materials and reports, with no testimony or submission of evidence as would be allowed at a record hearing. "Aggrieved"means that a land-use decision has caused, or is expected to cause, [special] harm or injury to a person, neighborhood planning council, neighborhood or community organization, or governmental unit, [distinct from any harm or injury caused to the public generally]; and that the asserted interests of the person, council, organization, or unit are among those the local government is required to consider when it makes the land-use decision. • The definition of "aggrieved" determines who can
be party to a hearing, who can submit information in an administrative
review, who has standing in an appeal, who can appeal decisions to hearing
officers, and who can bring judicial appeals. The aggrievement test
has two elements: harm or injury, and an interest that the local government
was required to consider in making its decision. Inclusion of the bracketed
language requires persons claiming standing to demonstrate that they
have suffered harm distinct from the harm to the general public. Removing
the bracketed language still requires a showing of harm or injury but
not a demonstration that the harm is in some way special or unique. "Appeals Board" means any officer or body designated by the legislative body to hear appeals from land-use decisions, including but not limited to the Land-Use Review Board, the local planning agency, local planning commission, a hearing examiner, or any other official or agency that makes a land-use decision on a development permit. "Certificate of Appropriateness" means the written decision by a local historic preservation or design review board that a proposed development is in compliance with a historic preservation or design review ordinance. "Certificate of Compliance" means the written determination by a local government that a completed development complies with the terms and conditions of a development permit and that authorizes the initial or changed occupancy and use of the building, structure, or land to which it applies. A "Certificate of compliance" may also include a temporary certificate to be issued by the local government, during the completion of development, that allows partial use or occupancy for a period not to exceed [2] years and under such conditions and restrictions that will adequately assure safety of the occupants and substantial compliance with the terms of the development permit. "Conditional Use" means a use or category of uses authorized, but not permitted as of right, by a local government's land development regulations in designated zoning districts pursuant to Section [10-502]. "Development Permit" means any written approval or decision by a local government under its land development regulations that gives authorization to undertake some category of development, including, but not limited to, a building permit, zoning permit, final subdivision plat, minor subdivision, resubdivision, conditional use, variance, appeal decision, planned unit development, site plan, [and] certificate of appropriateness[.] [, and zoning map amendment(s) by the legislative body]. "Development permit" does not mean the adoption or amendment of a local comprehensive plan or any subplan, the adoption or amendment of the text of land development regulations, or a liquor license or other type of business license. • This paragraph defines the land-use approvals that are to be considered a development permit. Note that a development permit is any "written approval or decision" that authorizes development. This term includes written approvals or decisions that are made following administrative reviews, record hearings, and record appeals. A "master permit" is defined later in this Section as a development permit. The procedures for hearings on the record apply only to development permits. The adoption and amendment of comprehensive plans is usually considered a legislative act. This definition means that plan adoption and amendment are not covered by the administrative review provisions of this Chapter. States in which a zoning map amendment is a quasi-judicial decision may want to include optional bracketed language that makes such amendments a development permit. See Section 10-201(5). "Enforcement Action" means an action pursuant to Chapter 11 of this Act. "Hearing" means a hearing held pursuant to this Chapter. "Issued" or "Issuance" means: (a) [3] days after a written decision on a development permit is mailed by the local government or, if not mailed, the date on which the local government provides notice that the written decision is publicly available; or (b) if the land-use decision is made by ordinance or resolution of the legislative body, the date the legislative body adopts the ordinance or resolution. "Land Use" means the conduct of any activity on land,
including, but not limited to, the continuation of any activity, the commencement
of which is defined herein as "development." • The definition of a "land-use decision" differs from the definition of a "land-use action" in Chapter 12. It is based in part on the Washington State Project Review Act, Wash. Rev. Code 36.70B.010 et seq. "Master Permit" means the development permit issued by a local government under its land development regulations and any other applicable ordinances, rules, and statutes that incorporates all development permits together as a single permit and that allows development to commence. The master permit is the unification of all development permits necessary for a land development. For example, in order to build a single-family home in a subdivision that has been platted, it may only be necessary to obtain a building permit (approving the plans for the residence itself) and a zoning permit (indicating that the use is allowed and the structure meets all applicable zoning requirements). Once the requirements for the two permits are met, and the two permits are granted, the master permit would automatically be issued, allowing development to commence. The master permit is authorized under Section 10-208, Consolidated Permit Review Process. "Owner" means any legal or beneficial owner or owners of land, including the holder of an option or a contract to purchase, whether or not such option or contract is subject to any condition. "Record" means the written decision on a development permit application, and any documents identified in the written decision as having been considered as the basis for the decision. "Record Appeal" means an appeal to a local government officer or body from a record hearing on a development permit application. "Record Hearing" means a hearing, conducted by a hearing officer or body authorized by the local government to conduct such hearings, that creates the local government's record through testimony and submission of evidence and information, under procedures required by this Chapter. "Record hearing" also means a record hearing held in an appeal, when no record hearing was held on the development permit application. • The definitions for hearings and appeals are critical. One important reform contained in this Chapter is to clarify the types of hearings and appeals authorized for land-use decisions at the local level, and how they should be held. The Sections on the unified development permit review process specify what kinds of hearings can be held at different stages of the development permit review process. • (For definitions of "local comprehensive plan," "development," "land development regulation," and "local government" see Chapter 3). 10-102 Purposes The purposes of this Chapter are to:
• This Section states the purposes of this Chapter. The judicial review process is limited to "land-use decisions," which include any decisions made on an application for a development permit. It does not include "land-use actions," as defined in Section 12-101(3), which are not so limited. A land-use decision can include a decision on a zoning map amendment if it is defined as a "development" that requires a development permit. 10-103 Exemptions for Corridor Maps This Chapter does not apply to applications under Section [7-501] for, and decisions on, development on land reserved in corridor maps. • Section 7-501 provides its own procedures for the consideration of development on land reserved in corridor maps. These procedures take into account the possible takings implications of corridor map reservations, and special needs to coordinate the administration of corridor maps with other state and local agencies that may have an interest. If a state adopts Alternative 3 proposed in Chapter 12, it will have to adopt additional procedures for the joint consideration of environmental reviews with development permit applications that supplement the procedures in this Chapter. Procedures that accomplish this objective are in Wash. Rev. Code Chapter 36.70B. Unified Development Permit Review Process for Land-Use DecisionsThe following Sections provide a unified development permit review process for all decisions on development permits that, at some point, are subject to an administrative review or record hearing. These Sections also provide procedures for appeals on development permits. The unified development permit review process applies to all land-use decisions, whether by the legislative body, the planning commission, a hearing officer, or land-use review board authorized by this Chapter. The Chapter adopts the Washington reform that allows only one hearing that produces a record and one appeal from a record hearing on a development permit. Limiting the number of hearings in this way should minimize the confusion and expense that often accompany the present system. However, as the brackets indicate, it is optional when adopting this Section to provide for more than one of each type of hearing. In addition, a local government has the option of establishing a development permit review process in which it does not require a record hearing. This option is available because Section 10-204 authorizes administrative reviews on development applications without the benefit of a hearing. However, the law of a particular state may require a record hearing on some types of land-use decisions, such as variances and other land-use decisions held to be quasi-judicial. The review process for development permit applications contemplated by this Chapter is simple. Applications for development permits can be considered either in an administrative review or a record hearing. An appeal following a record hearing is on the record, while an appeal following an administrative review requires a record hearing. A decision following a record appeal is appealable to a court. A decision following an administrative review can be appealed to a court, but this is unlikely because of the exhaustion of remedies requirement for judicial review, which requires an appeal to a local officer or body before judicial review can be obtained. This part of the Chapter does not assign substantive responsibilities to any of the boards or commissions in local governments or to the legislative body. Neither does it dictate any one inflexible form of organization for these bodies. The Standard State Zoning Enabling Act provided for an inflexible assignment of responsibilities to the legislative body, the planning commission and the board of adjustment. Several states, such as California, now allow the legislative body to determine how hearing responsibilities are assigned, and this part of the Chapter adopts that approach. The local government may choose any structure it prefers. It can, for example, assign rezonings to the legislative body, conditional uses and other initial approvals to the planning commission, and appeals and variances to the Land-Use Review Board, which may also be named as the Board of Zoning Adjustment or Appeals. This is the traditional structure. The local government can then decide what kinds of hearings should be held at each decision level. For example, the Land-Use Review Board can be authorized to hear record appeals on development permits reviewed by other bodies, and record hearings on variances it has the authority to issue. An ordinance may defer a record hearing to the appeal stage. For example, the ordinance could allow the planning commission to make its decision without a record hearing, but then provide for a record hearing by the land-use review board. Table 10-3
10-201 Development Permit; Unified Development Permit Review Process; Inclusion of Amendment of Zoning Map (1) The legislative body of each local government shall adopt, as part of its land development regulations, an ordinance that establishes a unified development permit review process for applications for development permits. (2) The ordinance establishing a unified development permit review process shall contain a list of all development permits required by the local government. For each such development permit, the list shall include:
• This optional provision is included if the local time limit option in Section 10-210 is chosen. If the state-determined time limit is chosen in Section 10-210 instead, paragraph (g) is not needed. (3) The ordinance establishing a unified development permit review process may provide for no more than [1] record hearing for each development permit and [1] record appeal. The ordinance may also authorize the administrative review of development permit applications without a hearing, as provided by Section [10-204], and [1] appeal for each development permit, in the form of a record hearing. The ordinance may assign the responsibility for record hearings, record appeals and administrative reviews to the legislative body, the local planning commission, or such other officers or bodies as the legislative body shall determine. (4) The ordinance establishing a unified development permit review process shall establish reasonable time limits on the validity of development permits. A reasonable time limit is one that provides adequate time to complete the development authorized, based upon a good faith effort towards completion. • Different types or scales of development may require different durations. Generally, the permits for more complex development should have longer durations.
• The effect of the last provision is to require the local government to describe the procedure for granting such permit extensions in the ordinance, as provided in paragraphs (2) and (3) above. It also makes the decision on a permit extension application appealable under Section 10-209 and reviewable under Section 10-601 et seq. judicial review. (5) For the purposes of this Chapter, the ordinance establishing the unified development permit review process may define the amendment of the zoning map by the legislative body as a development permit. • States may adopt paragraph (5) where the courts have characterized the amendment of a zoning map as a quasi judicial act, when it affects specific individuals and when it involves the application of existing policy to a specific fact setting.[36] Even though the map amendment must be approved by the legislative body, as opposed to a board, agency, or officer, it is still intended to allow a specific development to occur. In that context, a zoning map amendment is simply another permission, albeit one made by elected officials, in the development review process. The definition of "development permit" in Section 10-101 contains optional language that defines the amendment of the zoning map as a development permit. [(6) Within a local government's corporate limits, no building or structure for which a valid building permit has been issued may be denied permission, upon payment of a reasonable fee, to connect to existing lines of a local government-owned utility at the permit applicant's expense.] • Under this optional provision, there is no obligation to provide a connection where the utility line would have to be extended, unless the developer is willing to pay the expense of extension. Also, a moratoria on building permits for a shortfall in public facilities would not run afoul of this provision because the issuance of a building permit is a necessary prerequisite to this right to connect. 10-202 Development Permit Applications (1) As part of the ordinance establishing the unified development permit review process, the legislative body shall specify in detail the information required in every application for a development permit and the criteria it will apply to determine the completeness of any such application. The ordinance shall require the local government to notify applicants for development permits, at the time they make application, of the completeness determination, notice, and time-limit requirements required by this Chapter for the review and approval of development permits. (2) No local government may require a waiver of the time limits on a completeness determination or a decision on a development permit as a condition of accepting or processing an application for a development permit, nor shall a local government find an application incomplete because it does not include a waiver of these time limits. • Without this provision, a local government could effectively negate the time limits of this Article by routinely requiring waiver of time limits as a condition to the approval of development permits. Commentary: CompletenessThis Section provides a process under which a local government must make a completeness decision on a development application. It is based on Cal. Gov't Code 65943 et seq. and on Wash. Rev. Code 36.70B.070. The application requirements the local government includes in its ordinance will determine the basis on which the completeness decision is made. The brackets indicate that time limits for decisions can be modified by the state legislature. The legislative body may want to direct administrative bodies and officers to propose requirements for development permits to it for its approval by ordinance. Because local governments differ in what they may require, the Section does not specify the kinds of information that applications must contain. However, the ordinance required by this Section is expected to specify in detail the information required from applicants. The Section is based on Calif. Gov't Code 65940 et seq. The completeness determination need not be difficult or time-consuming. The period of time specified for the determination is a maximum, so that a local government can make a completeness determination in less time. A completeness determination may be possible for simple applications almost immediately, with no need to specify the submission of additional information. This Section gives the local government an opportunity to require additional information from an applicant if it finds that an application is incomplete. A local government should be able to specify what additional information is necessary in order to make an application complete, so that one additional submission should be adequate. Paragraph (5) provides an opportunity to the local government to request additional information when necessary after a completeness decision, but also makes it clear that an application is complete when it meets the completeness requirements of this Section. A completeness determination, or a deemed-completeness requirement under paragraph (4), starts the time limits running on when a decision on the application must be made under Section 10-210. A completeness decision is a "land-use decision," which means it is an interlocutory decision that is appealable under the judicial review provisions of this Chapter. The Section prohibits a waiver of the time limits for making a completeness determination. Without this provision, applicants for development permits may agree to a waiver in order to avoid antagonizing the local government that will make the decision on its application. 10-203 Completeness Determination (1) Within [28] days after receiving a development permit application, the local government shall mail or provide in person a written determination to the applicant, stating either that the application is complete, or that the application is incomplete and what is necessary to make the application complete. (2) If the local government determines that the application is incomplete, it shall identify in its determination the parts of the application which are incomplete, and shall indicate the manner in which they can be made complete, including a list and specific description of the additional information needed to complete the application. The applicant shall then submit this additional information to the local government within [28] days of the determination pursuant to paragraph (1), unless the local government agrees in writing to a longer period. (3) The local government shall determine in writing that an application is complete within [28] days after receipt of the additional information indicated in the list and description provided to the applicant under paragraph (2). (4) A development permit application is deemed complete under this Section if the local government does not provide a written determination to the applicant that the application is incomplete within [28] days of the receipt of an application under paragraph (1) or within [28] days of the receipt of any additional information submitted under paragraph (2). (5) A development permit application is complete for purposes of this Section when it meets the completeness requirements of, or is deemed complete under, this Section, even though additional information may be required or modifications in the development may occur subsequently. The completeness determination does not preclude the local government from requesting additional information or studies either at the time of the notice of completeness or subsequently if new information is required or substantial changes in the proposed development occur. Commentary: Administrative ReviewThis Section authorizes administrative reviews of development permit applications without a record hearing. There is no hearing, but paragraph (2) broadly authorizes persons, organizations and government units to submit materials concerning the application. The term "aggrieved" is defined in Section 10-101 above. The officer or body that makes the decision must provide a written decision and give notice. The time limits for decisions on development permits required by Section 10-210 apply to administrative reviews. The protections provided for record hearings through the ban on ex parte communications does not apply to administrative reviews. Communication with the applicant and others interested in the application is expected during an administrative review. Land-use decisions made following an administrative review are subject to an appeal under Section 10-209, but a record hearing will then by held by the officer or body that conducts the appeal. Under the exhaustion of remedies doctrine, codified at Section 10-604 below, this means that, before any appeal may be made to a court, an appeal pursuant to Section 10-209 must be taken if it is not futile. 10-204 Administrative Review (1) When required. The ordinance establishing the development permit review process may authorize local government officers and bodies to conduct an administrative review of development permit applications without a record hearing. The ordinance shall designate the development permits that are subject to an administrative review. (2) Participation. Documents and materials concerning a development permit application may be submitted to the officer or body that will conduct the administrative review by:
(3) Conflicts. Any decision-making officer or member of a decision-making body having a direct or indirect financial interest in property that is the subject of an administrative review, who is related by blood, adoption, or marriage to the owner of property that is the subject of an administrative review or to a person who has submitted documents and materials concerning an application, or who resides or owns property within [500] feet of property that is the subject of an administrative review, shall recuse him- or herself from the matter and shall state in writing the reasons for such recusal. (4) Findings, decision, and notice.
• To avoid confusion about what has been decided, a reasoned decision based on findings of fact is an essential conclusion to the permit review process. This Section also authorizes conditions on approved applications, which often are necessary to meet problems discovered about the application during the process. This authority is intended to be flexible, as conditions can implement any of the regulations or planning policies on which the decision is based. Subparagraph (c) makes newspaper and electronic publication of a decision optional. This Section is based on Idaho Code 67-6519, N.J. Stat. Ann. 40:55D-10, and Ore. Rev. Stat. 227.173(3) and 227.175(3). (5) Request for clarification. Within [30] days of a request for clarification of findings and decisions specifically included in the written notice of decision pursuant to paragraph (4)(b) above, the local government shall issue a written clarification concerning those specific findings and decisions. Notice of the clarification shall be given in the same manner as the notice of decision pursuant to paragraph (4)(c) above. • It may be important for a permit applicant, or some other interested party, to obtain clarification or explanation of some issue raised by the local government in its development permit decision. This paragraph authorizes the applicant for a development permit to make a request for such a clarification. (6) Certificate of compliance. The officer or body that grants a development permit shall issue a certificate of compliance if the completed development is in accordance with the conditions of the development permit that must be satisfied before a certificate of compliance can issue. The officer or body may delegate the responsibility of issuing the certificate of compliance to another officer.
• The usual process for the issuance of a certificate of compliance is automatic once the agency that granted a development permit determines that the development has been completed in compliance with the development permit. However, if a development was in compliance before the agency found it to be so, or the agency has not yet made a decision, or, for some reason, the local government failed to issue a certificate, and the land owner wants the certificate to be retroactive to the date of compliance (i.e. for purposes of nonconforming use protection), subparagraph (b) authorizes the owner to specifically apply for a retroactive certificate, and shall be issued a certificate retroactively if he or she can prove compliance on the earlier date. 10-205 Notice of Record Hearing (1) Notice required. If a local government holds a record hearing
on a development permit application, it shall provide notice of the date
of the record hearing within [15] days of a completeness determination
on the application under Section [10-203], or within [15] days from the
date an application is deemed complete under Section [10-203(5)]. Notice
of the record hearing shall be mailed at least [20] days before the record
hearing, and the record hearing must be held no longer than [30] days
following the date that notice of the record hearing is mailed. A local
government may hold a record hearing at a later date, but no more than
[60] days following the date that notice of the record hearing was mailed,
if state agencies or other local governments must approve or review the
development application, or if the applicant for a development permit
requests an extension of the time at which the record hearing will be
held.
• This is a very important paragraph, because the land regulations and comprehensive plan goals, policies and guidelines listed in the notice will determine the issues on which the hearing will be held. Of course, it is open to any party to challenge this part of the notice as legally incomplete if it omits regulations or plan goals, and policies and guidelines that apply to the application.
• This paragraph is based on Ore. Rev. Stat. 197.763. The hearing notice is extremely important. Many unnecessary hearing difficulties and unnecessary appeals can be avoided if the hearing notice must provide all the information that is needed to form an opinion about the application. An extension of time limits for a hearing is authorized when state agencies or other local governments must approve or review a development application, as this additional process may take longer than 30 days. Commentary: Methods of NoticeLand-use statutes typically specify in detail how notice must be given by local governments. These statutes may either require too much notice or not enough, and often create technical compliance problems that can lead to litigation. This Section allows local governments to determine what type of notice they want to give, subject to a requirement that notice by posting and publication be given as a minimum. Inclusion of notice requirements in the development permit review ordinance required by Section 10-201 is mandated, because it is essential that the ground rules for giving notice be known. This Section is based on Wash. Rev. Code 36.70B.110. 10-206 Methods of Notice (1) A local government shall use reasonable methods to give notice of a development permit application to the public, including [neighborhood planning councils established pursuant to Section [7-109], neighborhood or community organizations recognized pursuant to Section [7-110]], and to local governments or state agencies with jurisdiction. A local government shall specify the methods of public notice it will use in its development permit review ordinance, and may specify different types of notice for different categories of development permits. However, any ordinance adopted under this paragraph shall at least specify all of the following methods:
(2) Other examples of reasonable methods to inform the public that a local government may include in its development permit review ordinance are:
10-207 Record Hearings (1) When required. This Section applies when a local government holds a record hearing on a development permit application. (2) Availability of materials. The applicant, or any person who will be a party to, or who will testify or would like to testify in any record hearing, shall submit all documents or evidence on which he or she intends to rely to the local government, which shall make them available to the public at least [7] days prior to the record hearing. (3) Availability of staff reports. The local government shall make any staff report it intends to use at the record hearing available to the public at least [7] days prior to the record hearing. • Paragraphs (2) and (3) require full disclosure of applicant materials and local government reports prior to a hearing. Failure to disclose these materials creates fairness problems that frustrate all parties to a hearing and that can lead to litigation. These paragraphs mean that parties to a hearing must submit materials for witnesses they intend to call, and materials must also be submitted by persons who would like to testify though they are not parties. See Section 10-207(6)(b). (4) Record hearing rules. As part of its unified development permit review process, the legislative body of each local government shall specify rules for the conduct of record hearings. The rules, as a minimum, shall include the requirements for record hearings contained in this Section, and may supplement, but may not conflict with, these requirements. (5) Parties. Any governmental unit that has jurisdiction over the development application, and any abutting or confronting owner or occupant, may be a party to a record hearing held under this Section. Any other person or governmental unit, including a neighborhood planning council or neighborhood or community organization, may be a party to any record hearing held under this Section, if it would be aggrieved by a land-use decision on the development permit application. • Party status is granted as of right only to public agencies that have jurisdiction over the development application, and to owners and tenants that confront or abut the property that is the subject of the development application. These parties can be expected to have a direct and substantial interest in the development permit application. All other persons and agencies must be "aggrieved" to have standing, the term "aggrieved" being defined in Section 10-101. (6) Conduct of record hearing.
• Subparagraph (e) is based on N.J. Stat. Ann. 40:55D-10, which prescribes detailed procedures for public hearings that develop a record. See also Ore. Rev. Stat. 197.763(5). A local government may want to include provisions in their hearing rules for procedures not covered by this section. For example, the rules can provide procedures under which presiding officers can call witnesses other than witnesses called by parties. See paragraph (6)(b), above. They can also provide procedures for site visits, which are common in some jurisdictions. A site visit is acceptable if all parties are given personal notice of the visit, and if all decision makers are present at the site at the time of the visit. In addition, any information obtained during the site visit must be made part of the record and an opportunity provided for rebuttal. This paragraph does not deal with the problem of "judicial notice," which is the reliance on materials outside the formal record. However, it is clear that decision makers can rely on materials of this kind if they are openly disclosed and subject to rebuttal. See Ronald M. Levin, "Scope-of-Review Doctrine Restated: An Administrative Law Section Report," 38 Admin. L. Rev. 239, 279-282 (1986). Nothing in this paragraph prevents decision makers from relying on their own judgment in making decisions. (7) Ex parte communications. Alternative 1 A land-use decision based on a record hearing is void if a decision-making officer, or a member of a decision-making body, engages in a substantial ex parte communication concerning issues related to the development permit application with a party to the record hearing or a person who has a direct or indirect interest in any issue in the record hearing. Alternative 2
• These subparagraphs provide two alternatives for dealing with ex-parte communications. Ex- parte communications are described as "substantial" in both, excluding unintentional, de minimis, contacts from the purview of this paragraph. (Also, since Section 10-615 authorizes reversal of a land-use decision only if there was prejudicial error, a court can reverse on the grounds of substantial ex-parte communication only if the communication was prejudicial.) The first alternative bans ex-parte communications. The second allows them if they are disclosed on the record, a controversial exception because enforcement is difficult. The second alternative also exempts verbal communications by staff from the ex-parte communications bar, but written staff reports must be placed on the record as required by Section 10-207(3). This subparagraph is based on Ore. Rev. Stat. 215.422 and 227.180, and Wash. Rev. Code 42.36.060. For more detailed regulation of ex-parte communications see Fla. Stat. Ann. 268.0115. (8) Conflicts. Any decision-making officer or member of a decision-making body having a direct or indirect financial interest in property that is the subject of a record hearing, who is related by blood, adoption, or marriage to the owner of property that is the subject of a record hearing or to a party to the record hearing, or who resides or owns property within [500] feet of property that is the subject of a record hearing, shall recuse him- or herself from the matter before the commencement of the record hearing and shall state the reasons for such recusal. (9) Findings, decision, and notice.
• To avoid confusion about what has been decided, a reasoned decision based on findings of fact is an essential conclusion to the permit review process. This paragraph also authorizes conditions on approved applications, which are often necessary to meet problems about the application discovered during the process. This authority is intended to be flexible; conditions can implement any of the regulations or planning policies on which the decision is based. Subparagraph (c) makes newspaper and electronic publication of a decision an option. This paragraph is based on Idaho Code 67-6519, N.J. Stat. Ann. 40:55D-10, and Ore. Rev. Stat. 227.173(2) and 215.416(9). (10) Request for clarification. Within [30] days of a request for clarification of findings and decisions specifically included in the written notice of decision pursuant to paragraph (9)(b) above, the local government shall issue a written clarification concerning those specific findings and decisions. Notice of the clarification shall be given in the same manner as the notice of decision pursuant to paragraph (9)(c) above. • It may be important for a permit applicant, or some other interested party, to obtain clarification or explanation of some issue raised by the local government in its development permit decision. This paragraph authorizes the applicant for a development permit to make a request for such a clarification. (11) Certificate of compliance. The officer or body that grants a development permit shall issue a certificate of compliance if the completed development is in accordance with the conditions of the development permit that must be satisfied before a certificate of compliance can issue. The officer or body may delegate the responsibility of issuing the certificate of compliance to another officer.
• The usual process for the issuance of a certificate of compliance is automatic once the agency that granted a development permit determines that the development has been completed in compliance with the development permit. However, if a development was in compliance before the agency found it to be so, or the agency has not yet made a decision, or, for some reason, the local government failed to issue a certificate, and the land owner wants the certificate to be retroactive to the date of compliance (i.e. for purposes of nonconforming use protection), subparagraph (b) authorizes the owner to specifically apply for a retroactive certificate, and shall be issued a certificate retroactively if he or she can prove compliance on the earlier date. Commentary: Consolidated Permit Review ProcessThis Section authorizes a consolidated permit review process. It gives local governments the flexibility to decide how this process should be constructed, and they may provide different procedures for different types of development permits under their jurisdiction when necessary. The consolidated permit review process may combine the review of development permits under this Chapter with rezonings, which may be considered legislative rather than quasi-judicial actions. This Section is based on Ore. Rev. Stat. 215.416 and Wash. Rev. Code 36.70B.120. | My APA
ID or E-mail
Password Remember My ID JOIN APABecome a member and connect with thousands of people who share your dedication to building vibrant communities. Join | |||||||||||||||||||||||||||||||||||||||||||||||||
