Thursday, October 17, 2013

Top 10 Tips for Getting Through the Land Use Regulatory Process

  • Local knowledge - Nothing grabs a community's attention like a construction project in or around their neighborhood.  Be it public utility, roads, schools, houses, or commercial project, people want to know what you're doing, why you're doing it, and how it will affect them.  Reaching out to the community early, often, and in a way that values their input is not only being a good neighbor, but also a regulatory prerequisite to regulatory approvals. Outreach needs to be strategic.  It's not enough to have large public meetings.  Gathering public input also means meeting with the right people, such as community leaders (not necessarily elected) who represent broader communities.  Having a good public outreach plan that is prepared in consultation with folks who know the community, coordinated with project planning, can help focus efforts and avoid regulatory duplication.
  • Identify key regulatory personnel - So you stopped by X agency and you talked to someone, and you walked away feeling pretty good because that person said that your project should get through the regulatory process without any problems.  Don't start counting your chickens until you ask yourself these questions: (1) Are you pursuing the correct regulatory approval, (2) Are you at the correct agency; and (3) Does the person you spoke to have authority to speak for the agency?  Your answers should be: yes, yes, and yes.
  • Complete the application - Applicants file incomplete applications all the time.  In the best of circumstances, the applicant failed to get professional help and doesn't understand the process.  In the worst case, the applicant expects the regulator to do the applicant's work by reviewing the incomplete application and telling the applicant how to complete it.  In the former case, agencies generally have guidance available than can help the public navigate the permitting process.  However, in the latter case, it's just unprofessional.  It's a sure way to upset a regulator--and you don't want that.  Most regulators want to help you get through their process quickly and efficiently.  They don't want a backlog.  If you have a critique about a certain requirement, a regulator can't change that.  You'll need to take it up with the legislative body that makes law.  Also, there is a difference between turning in an incomplete application and pre-consultation.  Pre-consultation, before submitting an application and after the applicant has done some research, is encouraged.
  • Don’t skimp on planning and outreach - Old Ben Franklin's adage should be taken to heart: An ounce of prevention is worth a pound of cure.  Early planning, which includes a permitting, entitlement, environmental review, and outreach strategy at the front end of a project significantly reduces financial and legal risk during final design and construction.  Someone once told me, "It doesn't matter what we do, we'll be sued anyway."  Well yes, that is true, but thoughtful planning can reduce the amount of time you spend in court and reduce the likelihood of a court telling you that the project needs to start over. 
  • Know the game: discretionary or ministerial - Knowing this will change how you develop your project development strategy.  Ministerial or over-the-counter permits are those that have very specific code requirements that must be fulfilled before it is approved, like a building permit.  A discretionary approval allows the regulator more discretion for tailoring an approval with various requirements of approval based on broader criteria, like a change of zoning request. This usually involves a board, commission, or elected body
  • Define your project—stick to it - Granted, as you work through planning, permitting, and environmental review, elements of the project may change; however, you should go into the process with a clear understanding of the proposal's purpose and need.  This should be clear and concise, because changing the purpose and need midstream while working through the panoply of land use approvals can have unintended consequences. If the project is changed too much, you may need to start over.
  • Follow approval criteria - You do not need to win a regulator over on how great your project is. All the regulator needs to know is how your proposal satisfies the regulatory criteria and process required by the particular permit or entitlement you are applying for. Write clearly and concisely.  Show exactly how the facts of your proposal match up with regulatory requirements. Enable the regulator to expeditiously process your application. 
  • Look for opportunities for concurrency - The permitting, planning, and environmental review processes allow many opportunities for cross-referencing reports, facts, figures, and public hearings. For example, environmental review documents can be used to concurrently address permitting requirements; and county, state, and/or federal requirements often share similar requirements and criteria.
  • Have the right team of experts - Depending on the complexity of your proposal and whether it's a ministerial or discretionary approval, you will need several experts, for example, architects, engineers, planners, lawyers, and financial experts.  Although many of these fields are cross-trained to some extent, it's rarely a good idea to substitute one for the other.  You can't build a house with only a hammer--you need the whole toolbox.
  • Be sure your team is communicating - It is not uncommon for well-intended team members to not adequately communicate with the rest of the development team.  The attorney can't reduce legal risk if she doesn't know what the planners' are recommending for their environmental impact statement strategy.  The planners can't properly address potential alternatives if the engineers have one approach in mind for design that no one knows about.  Someone needs to be able to organize the team so the proper disciplines are working on the right issues, and communication across disciplines is happening to ensure that all decisions are fully informed and aimed at achieving the project purpose and need.
I originally presented this list at a workshop on green industry permitting.  Materials for the workshop will be posted at planning.hawaii.gov/spb/green-industry-permitting-workshop


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