Checklist of Development Permitting Tips
Tip 1: Do Your Homework Before You Buy – This should almost always include an environmental site assessment to identify potential contamination. If done properly, these tools can provide valuable information before it’s too late. And, if carefully conducted in compliance with environmental laws, these tools can even provide protection against remediation claims down the […]
- Tip 1: Do Your Homework Before You Buy – This should almost always include an environmental site assessment to identify potential contamination. If done properly, these tools can provide valuable information before it’s too late. And, if carefully conducted in compliance with environmental laws, these tools can even provide protection against remediation claims down the road. Other steps include careful review and possible transfer of environmental and land use permits.
- Tip 2: If Your Project Will be Controversial, be Proactive About Addressing Issues – Controversial projects require a careful strategy for obtaining approvals. This often includes considering when and how to seek input from regulators, key political figures, and the public. This can be done in a variety of ways, and thus must be tailored to your project. Tools include pre-application meetings, neighborhood meetings, and even meetings with likely opponents, as well as making smart compromises up front that can blunt concern right from the start.
- Tip 3: Rezone or Use Contract Zone Agreements to Allow Property Development – If your project cannot be developed due to local zoning constraints, consider rezoning the parcel before walking away. This can be done either by changing the zoning ordinance or, in some municipalities, entering into a contract zone agreement. These proposals need to be drafted carefully to ensure that they meet your needs and don’t have any unintended consequences.
- Tip 4: Consider Legislative or Regulatory Amendments if You Run Into Roadblocks – Similar to rezoning, if there are major roadblocks to your project from land use permitting programs, one option to consider is seeking either legislative or regulatory amendments to those programs. These tend to be difficult to get, but in the right case, can present a viable option.
- Tip 5: Design Your Project to Avoid the Need for Permits or to Qualify for Expedited Permits – Most permitting schemes, whether federal, state, or local, include key thresholds, such as a certain amount of soil disturbance or wetland impact. If you can reduce the size or impacts of your project, you may be able to stay under those thresholds and either avoid particular programs entirely or qualify for expedited permits, such as permits-by-rule or general permits. This can save you both time and money.
- Tip 6: Watch out for Requirements to Aggregate Impacts – Many permitting programs, such as Section 404 wetland permitting under the federal Clean Water Act, require developers to aggregate multiple impacts over time if they are part of the same overall project. This is intended to keep developers from breaking large projects into multiple smaller ones in an effort to avoid or reduce permitting.
- Tip 7: Prepare Your Permit Applications Carefully – Your own application materials can present a trap for the unwary. Approvals are dependent on the representations you make in your project applications, even if not specifically repeated in the permit itself. That means you should prepare the application carefully. And keep a copy, as you will need to refer to it in the future!
- Tip 8: Ask for and Review Draft Permits Carefully – You’ll want to do this before they become final. Make sure you understand every requirement of the permit and that you can meet each condition of approval. If you are uncertain, contact your regulator immediately to either clarify or amend your obligations as needed.
- Tip 9: Think Ahead for Potential Appeals by Developing a Complete Record Now – The standard of review in most administrative and judicial appeals is appellate in nature. That means the reviewing body on appeal limits its review to the information that was presented to the decision-maker (such as a planning board or state environmental agency), and will typically not accept any new evidence. As a result, you need to plan ahead for a potential appeal by building your record right from the start, providing evidence on how you meet each and every permitting standard.
- Tip 10: Resolve Stop Work Orders and Notices of Violation Before You Get Taken to Court – If you have trouble meeting the requirements of your development permits, and end up the recipient of a stop work order or a notice of violation, be proactive about addressing the problem. Consult a land use lawyer about whether you’re in violation at all, and to understand your rights and the potential consequences. Many environmental statutes carry heavy potential fines, which are typically calculated per day of violation.