Land use development approvals typically proceed in three phases. First, the applicant puts an application on file with the planning agency. Then the planning agency reviews and processes the application. Finally, the application goes before the approval authority, which either approves or denies the application or, more commonly, approves the application subject to conditions of approval. This article is about the application phase. Under the Permit Streamlining Act (the “PSA”), Government Code Section 65920, et seq., the application phase is supposed to be quick and efficient. But that often isn’t how things work in practice.
The PSA applies to most planning entitlements issued by local agencies in California, but not necessarily to legislative approvals or building entitlements. The basic structure of the PSA is simple and elegant. For each type of development permit, the public agency must have a checklist of items the applicant is required to submit. After the application is submitted, agency staff compare the application to the checklist to determine whether a complete application was provided. If everything is there, then the application is accepted for processing.
If anything is missing, or if the instructions in the application checklist were not followed, then within 30 days agency staff send a letter to the applicant containing a “complete and exhaustive list” of incomplete items so that the applicant can try again. In the future, the agency is limited to requesting items included in this initial response. If the 30-day deadline is missed, then the application is “deemed” complete. That doesn’t mean the application gets approved, but it does mean that the agency should begin to process the application.
What often happens instead is that agency staff will try to work out all the details of the project and get it to the point where they’re prepared to recommend approval before they will accept the application for processing. There are two problems with this practice:
- The applicant may not want to make the changes staff requests, and by requiring the changes to be made before the application will even be accepted for processing, agency staff deprive the applicant of the chance to be heard on the project that the applicant wants to propose. Ultimately the project may get denied or approved conditioned on the changes staff wants to make, but the applicant deserves a chance to make its case to the decisionmaker.
- Making a change requested by staff will often require other changes, and staff may not like the ways the applicant proposes to address those changes. Or, an applicant may fix something in the plans to address a requested change but forget to make a minor conforming change on another plan sheet. When issues like this get dealt with through successive 30-day periods of formal application review, the process can get dragged out for months or even years.
To break the loop, agency staff should keep four things in mind:
- If the applicant won’t propose a project that staff can get behind, staff can recommend denial.
- If agreed to by the approval authority, the project also can be conditioned on making the changes staff wants. The plans don’t have to be perfect to go before the approval authority. They just have to be in a suitable condition for the approval authority to judge them and propose the changes necessary to warrant approval.
- Minor issues can be worked out informally after the application is accepted for processing without the delay of 30-day formal review cycles. Government Code Section 65944(a) states that: “The agency may, in the course of processing the application, request the applicant to clarify, amplify, correct, or otherwise supplement the information required for the application.”
- Under Section 65944(c), the agency can request information required for CEQA after accepting the application as complete.
This has been a simplified overview of the PSA. If you work with a public agency that needs advice concerning the PSA, or if you’re a private property owner who needs help getting an application on file with an agency, please contact our Land Use & Municipal Law group by telephone 408.286.5800 or via email andy.faber@berliner.com, jolie.houston@berliner.com, or erik.ramakrishnan@berliner.com.