Administrative and Judicial Review of Land-Use Decisions

This 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 Outline

General Provisions

10-101 Definitions
10-102 Purposes
10-103 Exemptions for Corridor Maps

Unified Development Permit Review Process for Land-Use Decisions

10-201 Development Permit; Unified Development Permit Review Process; Inclusion of Amendment of Zoning Map
10-202 Development Permit Applications
10-203 Completeness Determination
10-204 Administrative Review
10-205 Notice of Record Hearing
10-206 Methods of Notice
10-207 Record Hearings
10-208 Consolidated Permit Review Process
10-209 Appeals
10-210 Time Limits on Land-Use Decisions (Two Alternatives)
10-211 Fees

Hearing Examiners

10-301 Hearing Examiner System
10-302 Hearing Examiner's Jurisdiction
10-303 Decision to Recuse
10-304 Decisions Based on Record Hearings
10-305 Decisions Based on Record Appeals
10-306 Effect of Hearing Examiner's Decisions
10-307 Review of Hearing Examiner Recommendations
10-308 Filing and Publication of Hearing Examiner Decisions

Land-Use Review Board

10-401 Land-Use Review Board Authorized
10-402 Organization and Procedures
10-403 Compensation, Expenses and Assistance
10-404 Training
10-405 Powers

Administrative Actions and Remedies

10-501 Authority to Approve
10-502 Conditional Uses
10-503 Variances
10-504 Mediated Agreement
10-505 Referral to Planning Commission
10-506 Conditions
10-507 Procedures

Judicial Review of Land-Use Decisions

10-601 Purposes
10-602 Method of Judicial Review Exclusive
10-603 Judicial Review of Final Land-Use Decisions
10-604 Exhaustion of Remedies
10-605 Federal Claims
10-606 Filing and Service of Land-Use Petition
10-607 Standing and Intervention
10-608 Required Elements in Land-Use Petition
10-609 Preliminary Hearing
10-610 Expedited Judicial Review
10-611 Stay of Action Pending Judicial Review
10-612 Submittal of Record for Judicial Review
10-613 Review and Supplementation of Record
10-614 Discovery When Record Supplemented
10-615 Standards for Granting Relief
10-616 Decision of the Court
10-617 Definitive Relief
10-618 Compensation and Damages Disclaimer

Table 10-1 Why Development Permitting Processes Should Be Reformed
Table 10-2 Factors Affecting Development Permitting Delays
Table 10-3 Suggested Time Limits for Decisions on Development Permits and Appeals

Appendix — Articles on Administrative and Judicial Review of Land-Use DecisionsCross-References for Sections in Chapter 10

Cross-Reference for Sections in Chapter 10

Section No. Cross-Reference to Section No.

10-101 10-201, 10-208, 10-502, 10-601 et seq., Ch. 11
10-102 12-101
10-103 7-501

10-201 10-101, 10-204, 10-209, 10-210
10-203 10-210
10-204 10-101, 10-206
10-205 10-203
10-206 7-109, 7-110, 10-201
10-207 10-101, 10-205, 10-206, 10-615
10-208 10-101
10-209 10-204, 10-207, 10-210
10-210 10-201
10-211 10-201 et seq., 15-201

10-302 10-210, 10-301
10-304 10-204, 10-205, 10-207
10-305 10-207, 10-209
10-306 10-601 et seq.
10-307 10-207, 10-209

10-501 10-301, 10-401, 10-502, 10-503
10-502 8-104, 8-201, 10-501
10-503 8-104, 8-201, 10-501
10-504 8-701, 10-604
10-505 10-502, 10-503
10-506 10-502, 10-503
10-507 10-201, 10-207, 10-502, 10-503

10-601 10-601 et seq.
10-603 8-502, 10-203, 10-209, 10-210, 10-604, 10-607
10-604 10-209, 10-502, 10-503, 10-603
10-605 10-615
10-606 10-209, 10-607
10-607 7-109, 7-110, 10-209, 10-603
10-608 10-603, 10-606, 10-607

10-609 10-606, 10-607
10-613 10-612
10-614 10-613
10-615 8-104, 10-605, 10-612, 10-613
10-616 10-613
10-618 10-602

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:

1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this act or of any ordinance adopted pursuant thereto.

2. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.

3. To authorize upon appeal in specific cases such variances from the terms of the ordinance as will not be contrary to the public interest, where, owing the special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.[2]

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:

Overall, the [annual] average was 153, but the range was broad, running from 12 in Springfield, Missouri, to 600 in both Milwaukee and Pittsburgh. Dividing that survey group yields a clearer picture. The 29 jurisdictions that fall in the 100,000 to 199,000 population range average 92 cases per year. The 21 jurisdictions at or above 200,000 average 237 cases per year. Twenty-nine of the communities had more than 100 cases per year; 13 had more than 200. Despite the broad range, it is clear that most ZBAs are very busy.[21]

One law journal article, which documented the problems of the board of zoning appeals in Lexington, Kentucky, appraised the problem as follows:

. . . [T]he variance procedure really falls short of giving intelligent flexibility within a framework designed to accord equal protection of the law. Planning considerations do not receive careful consideration there. The board does not have the expertise to know what is trivial and can be disposed of quickly and what is substantial and requires close examination. For lack of time it cannot sit down with the applicant and, by patience, suggestions, and persuasion, bring him around to making changes which will make the use compatible with the area. Furthermore, because of the "strict and severe limitations" courts have imposed on the board's powers, the board is not always prepared to be honest and articulate about its reasons for reaching a particular result. It cannot promulgate the kind of standards we need for administrative decisions, for queerly enough, they would be illegal. An ideal breeding ground for adventitious factors results.[22]

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 or without 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

Why Development Permitting Processes Should Be Reformed

• To assure fairness and due process to protect the rights of all participants.
• To make citizen participation more constructive, responsive and timely.
• To make the regulatory system accountable and reduce opportunities for backroom agreements or corruption.
• To establish better working relationships between permit applicants and reviewers.
• To enable public officials to use their time more efficiently.
• To contain rising administrative costs.
• To control one of the factors that increase the cost of new housing.
• To encourage the kind of development the community wants by giving the community a competitive edge.

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:

• on-going training of planning commissions, BZAs, and other local boards that conduct hearings on and approve development permits;
• a central permit information desk that allows information about permits and permits themselves to be obtained from a single central location;
• cross-training of staff to reduce specialization, increase coordination, and enhance flexibility, especially in times of high case loads;

Table 10-2

Factors Affecting Development Permitting Delays

• Overly complex land development regulations.
• Duplicative information requirements.
• Resistance to, or prolonged scrutiny for, innovative land use controls such as planned unit development or cluster development.
• Conflicts between building, zoning, health, and subdivision regulations.
• Hidden agendas aimed at keeping out particular types of development, such as affordable housing.
• Multiple and sequential hearings before different hearing bodies.
• Turf problems between permit-issuing agencies.

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;
• computerized tracking systems to tell an applicant the status of an application and more readily identify scheduling problems; and
• joint inspections that are conducted by several departments simultaneously; and pre-application conferences with applicants to address issues before expensive technical and engineering work is undertaken.[35]

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 Provisions

10-101 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."

"Land-Use Decision" means a decision made by a local government officer or body, including the legislative body, on a development permit application, an application for a conditional use, variance, or mediation, or a formal complaint pursuant to Chapter 11, and includes decisions made following a record hearing or record appeal. It also means an enforcement order and/or supplemental enforcement order pursuant to Chapter 11, but only for purposes of judicial review pursuant to Section [10-601] et seq.. A "completeness decision," "development permit," and "master permit" are "land-use decisions" for purposes of this Chapter.

• 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:

(1) provide for the timely consideration of development permit applications.

(2) provide a unified development permit review process for land-use decisions by local governments;

(3) authorize a consolidated development permit review process for land-use decisions by local governments;

(4) provide for the appointment of hearing examiners;

(5) provide for a Land-Use Review Board;

(6) authorize conditional uses, variances, and mediation in land development regulations; and

(7) provide a judicial review process for land-use decisions.

• 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 Decisions

The 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

Suggested Time Limits for Decisions on Development Permits& Appeals
Section No. Action No. of Days
10-203(1) Time from submitting a development permit application when completeness determination is issued or an application is deemed complete. 28
10-203(2) Time from completeness determination that applicant must submit additional information requested by local government for an incomplete application. 28
10-203(3) Time from submitting additional information that local government requires for an incomplete application for completeness determination to be issued or when development application is deemed complete 28
10-205(1) Time for providing notice of the date of a record hearing (when a record hearing is required) after completeness determination or after permit application is deemed complete 15
10-205(1) Time that notice of record hearing must be mailed in advance of hearing 20
10-205(1) Maximum period within which to hold record hearing after notice has been mailed 30
10-207(2),(3) Time that staff reports and any materials related to consideration of the development permit must be available to the public for inspection prior to the record hearing 7
10-210(1) Maximum period in which a local government can approve or disapprove any development permit application after completeness determination or from the time the application is deemed complete, including record hearings and administrative reviews (Option 1) 90, 120, or 180
10-210(2) Maximum period that a local government and an applicant for a development permit may extend the time limits for a decision on the permit 90
10-209(1) Maximum period in which an appeal may be taken to an appeals board after a land-use decision is issued or after the land-use decision is deemed approved under Section 10-210 30
10-209(4) Maximum period between the time the appeal is filed and the time the appeals board holds the hearing on the appeal 20
10-209(4) Minimum period required for notice of the appeal in advance of the hearing 10
10-209(7) Maximum period from commencement of appeal hearing that notice of decision must be mailed 30

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:

(a) citation to the land development regulations, statute, rule, or other legal authority under which the development permit is required;

(b) the category of development to which it applies;

(c) the stage or sequence of the development process at which it must be obtained;

(d) the designation of the officer or body of the local government responsible for reviewing and granting the development permit and the subsequent certificate of compliance;

(e) whether a record hearing is required; [and]

(f) the approximate time necessary for review and grant of such development permit; [and]

[(g) the time limit for granting, granting subject to conditions, or denying such development permit pursuant to Section [10-210], said time limit:

1. commencing from the time the local government makes a written determination that a development permit application is complete, or from the time a development application is deemed complete; and

2. being reasonably based on the approximate time determined under paragraph (2)(f) above.]

• 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.

(a) The ordinance shall provide for the extension of such time limits whenever a change in circumstances precludes or precluded the landowner from completing the development according to the terms and conditions of the permit within the time limit established by the permit despite the landowner's reasonable efforts to complete the development within that time limit.

(b) The ordinance may provide for the extension of such time limits under other circumstances as the local government sees fit.

(c) An extension of time limits:

1. shall provide adequate time to complete the development authorized by the original development permit, based upon a good faith effort towards completion; and.

2. does not by itself preclude or prohibit further extensions as necessary.

(d) An application for extension of time limits is a development permit application.

• 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: Completeness

This 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 Review

This 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:

(a) The applicant; and

(b) any person, neighborhood planning council, neighborhood or community organization, or governmental unit, if it would be aggrieved by a decision on the development permit application.

(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.

(a) A local government may approve or deny a development permit application, or may approve an application subject to conditions. Any approval, denial, or conditions attached to a development permit approval shall be based on and implement the land development regulations, and goals, policies, and guidelines of the local comprehensive plan.

(b) Any decision on a development permit application shall be based upon and accompanied by a written statement that:

1. states the land development regulations and goals, policies, and guidelines of the local comprehensive plan relevant to the decision;

2. states the facts relied upon in making the decision;

3. explains how the decision is based on the land development regulations, the goals, policies, and guidelines of the local comprehensive plan (including the future land-use plan map), and the facts set forth in the written statement;

4. responds to all relevant issues raised by documents and materials submitted to the administrative review; and

5. states the conditions that apply to the development permit, the conditions that must be satisfied before a certificate of compliance can issue, and the conditions that are continuing requirements and apply after a certificate of compliance is issued.

(c) A local government shall give written notice of its decision to the applicant and to all other persons, neighborhood planning councils, neighborhood or community organizations, or governmental units that submitted documents and materials [and shall publish its decision in a newspaper of general circulation and may publish the decision on a computer-accessible information network].

• 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.

(a) The ordinance establishing the unified development permit review process may describe the type and sequence of inspections regarding a development authorized by a development permit in order that a certificate of compliance may be issued at the completion of the development.

(b) An owner of land for which a development permit has been issued may apply upon completion of the development for a certificate of compliance, and may introduce documentation and evidence, including the written reports of inspections performed according to paragraph (6)(a) above, and if the agency that issued the development permit finds that the completed development was in accordance with the terms and conditions of the development permit as of a particular date, the certificate of compliance shall be effective as of that date.

(c) The ordinance establishing the development review process may also provide for the periodic review of compliance with development permits.

(d) A local government may bring enforcement proceedings to remedy a violation of this paragraph, as authorized by Chapter 11 of this Act.

• 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.

(2) Contents of notice. The notice of the record hearing shall:

(a) state the date, time, and location of the record hearing;

(b) explain the nature of the application and the proposed use or uses which could be authorized;

(c) list the land development regulations and any goals, policies, and guidelines of the local comprehensive plan that apply to the application;

• 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.

(d) set forth the street address or other easily understood geographical reference to the subject property;

(e) state that a failure to raise an issue at a record hearing, in person or by letter, or the failure to provide statements or evidence sufficient to afford the local government an opportunity to respond to the issue, precludes an appeal to the appeals board based on that issue, unless the issue could not have been reasonably known by any party to the record hearing at the time of the record hearing;

(f) state that a copy of the application, all documents and evidence submitted by or on behalf of the applicant, and any applicable land development regulations or goals, policies, and guidelines of the local comprehensive plan, are available for inspection at no cost and will be provided at reasonable cost;

(g) state that a copy of any staff reports on the application will be available for inspection at no cost at least [7] days prior to the record hearing, and will be provided at actual cost;

(h) state that a record hearing will be held and include a general explanation of the requirements for the conduct of the record hearing; and

(i) identify, to the extent known by the local government, any other governmental units that may have jurisdiction over some aspect of 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 Notice

Land-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:

(a) conspicuous posting of the notice on the property, for site-specific development proposals;

(b) publishing the notice, including at least the development location, description, type of permit(s) required, and location where the complete application may be reviewed, in a newspaper of general circulation in the jurisdiction of the local government [and giving notice by publication on a computer-accessible information network];

(c) posting the notice on a bulletin board in a conspicuous location in the principal offices of the local government; and

(d) mailing of notice to all adjacent local governments and to all state agencies that have jurisdiction over the development application.

(2) Other examples of reasonable methods to inform the public that a local government may include in its development permit review ordinance are:

(a) notifying public or private groups with known interest in a certain proposal or in the type of proposal being considered;

(b) notifying the news media;

(c) publishing notices in appropriate regional or neighborhood newspapers or trade journals;

(d) publishing notice in local government agency newsletters or sending notice to agency mailing lists, either general lists or lists for specific proposals or subject areas; and

(e) mailing notice to abutting and confronting property owners.

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.

(a) The officer presiding at a record hearing, or such person as he or she may designate, [shall or may] have the power to conduct discovery and to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties. The presiding officer may call any person as a witness whether or not he or she is a party.

(b) The presiding officer shall take the testimony of all witnesses relating to a development permit application under oath or affirmation, and shall permit the right of cross-examination to all parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations on the time and number of witnesses.

(c) Technical rules of evidence do not apply to the record hearing, but the presiding officer may exclude irrelevant, immaterial or unduly repetitious evidence.

(d) If a party to the record hearing provides additional documents or evidence, the presiding officer may allow a continuance of the of the record hearing or leave the record open to allow other parties a reasonable opportunity to respond.

(e) The local government shall provide for the verbatim recording of the record hearing, and shall furnish a copy of the recording, on request, to any interested person at its expense.

• 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

(a) 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, unless the official or member who engages in the ex parte communication provides an opportunity to rebut the substance of any written or oral ex parte communication by promptly putting it on the record and promptly notifying all parties to the record hearing of the contents of the communication.

(b) An oral communication between local government staff and the decision-making officer or a member of a decision-making body is not a substantial ex parte communication under this paragraph.

• 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.

(a) A local government may approve or deny a development permit application, or may approve an application subject to conditions.

(b) Any decision on a development permit application shall be based upon and accompanied by a written statement that:

1. states the land development regulations and goals, policies, and guidelines of the local comprehensive plan relevant to the decision;

2. states the facts relied upon in making the decision;

3. explains how the decision is based on the land development regulations, the goals, policies, and guidelines of the local comprehensive plan (including the future land-use plan map), and the facts set forth in the written statement of the comprehensive plan;

4. responds to all relevant issues raised by the parties to the record hearing; and

5. states the conditions that apply to the development permit, the conditions that must be satisfied before a certificate of compliance can issue, and the conditions that are continuing requirements and apply after a certificate of compliance is issued.

(c) A local government shall give written notice of its decision to all parties to the proceeding [and shall publish its decision in a newspaper of general circulation and may publish the decision on a computer-accessible information network].

• 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.

(a) The ordinance establishing the unified development permit review process may describe the type and sequence of inspections regarding development authorized by a development permit in order that a certificate of compliance may be issued at the completion of the development.

(b) An owner of land for which a development permit has been issued may apply upon completion of the development for a certificate of compliance, and may introduce documentation and evidence, including the written reports of inspections performed according to paragraph (11)(a) above. If the agency that issued the development permit finds that the completed development was in accordance with the terms and conditions of the development permit as of a particular date, the certificate of compliance shall be effective as of that date.

(c) The ordinance establishing the development review process may also provide for the periodic review of compliance with development permits.

(d) A local government may bring enforcement proceedings to remedy a violation of this paragraph, as authorized by Chapter 11 of this Act.

• 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 Process

This 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.


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