Wednesday, November 30, 2011

Don’t Waste a Good Opportunity

When your development project is nearing approval, the process to get a discretionary permit or action (Coastal Development Permit, Conditional Use Permit, Tentative Map, etc.) can be long, frustrating, and expensive.  By the time the agency produces a ‘Draft Conditions of Approval’, the Developer or Homeowner is so thrilled to be near the finish line that they’ll sign almost anything to get on the next Hearing docket and close the deal.  Having the stomach for just a little more effort in this last one or two weeks can make a huge difference in how the project progresses after it’s approved.  Here are some of the most important actions you can take when your draft conditions are completed in preparation for your Final Conditions and your hearing date.

Distribute a Copy of the Draft Conditions to All Relevant Consultants

The project architect, construction consultant, attorney, civil engineer, private planner, landscape architect, biologist, etc. should all have a chance to review the draft conditions before they mature into a final document.  Each discipline has their own unique perspective on how the rules will be applied (or misapplied), and can root out any infeasible or inappropriate constraints which would later burden the project.  If there are conditions for a discipline where no consultant has yet been hired, seek the advice of a new consultant just for this purpose, if necessary.  If they’re charging by the hour, having several pairs of eyes will add some expense to the budget, but the cost of missing something important will be far greater.

Don’t Over-Compartmentalize the Distribution List

Nowadays, conditions of approval are so complex that they contain overlapping constraints that may affect more than one discipline.  If the ‘Biological Requirements’ section is not distributed to the civil engineer as well as the biologist, the fact that certain monitoring procedures are tied to the grading and building activities may be overlooked.  Ask each consultant to review the document from beginning to end.

Don’t Be Afraid to Contest Unreasonable Demands with the Agency

Many conditions of approval are standard for the project type, or are based on irrefutable laws and regulations.  But others may simply be on the Agency’s wish list and place an unacceptable burden on the project costs and timeline.  City or County staff often have a specific interest in seeing the project flourish, and may not realize that a condition is likely a deal-breaker.  A short delay may be the biggest risk of trying to contest an unreasonable condition.

The ‘WHEN’ can be just as important as the ‘WHAT’

We’re used to seeing a condition such as ‘prior to the issuance of a grading permit, an irrevocable offer of dedication (IOD) for a portion of Maple Street shall be recorded’.  Is it reasonable to not even issue the grading permit until this is done?  This IOD may require an extensive review and recordation process, holding up your entire project because you won’t even get your first permit without it.  Is it possible to alter the condition to apply to something later in the project timeline (such as the building permit, the first inspection, or even the certificate of occupancy)?

City and County staff aren’t necessarily out to get the Developer or Homeowner.  Their schedules can be very busy, and they copy conditions from similar past projects that may not be appropriate for yours.  You may be doing everyone a favor, including the agency staff, by carefully reviewing and modifying the draft conditions before they become a reality.  It is much harder for anyone to change the rules after the discretionary permit has been recorded, even if they are considered unreasonable by all parties.  Take the one extra step of a thorough review before deciding to accept the document just because it has been a difficult journey to get this far.

John S. Coffey, PE, PLS, is founder and President of Coffey Engineering, Inc. in San Diego. He’s contributed to over a thousand civil engineering, surveying, and planning projects in San Diego and surrounding communities over the past 15 years. 858-831-0111

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