Time Limits for Project Approvals
By John Eastman
Category: Real Estate
Today you're seeing a real estate client with a well-located piece of property under option to purchase and some market-driven ideas. A financing package is in the works, but the project's costs will increase for every extra month it takes to get development permits. Time is money, counselor: What's our time frame?
For years, the time limits within which state and local government agencies were required to approve or deny development projects were set forth in different statutory schemes that seemed irreconcilable. From 1993 through 1998, however, the California Legislature enacted a series of measures designed to coordinate the time limits imposed by the Permit Streamlining Act (PSA), the California Environmental Quality Act (CEQA), and the Subdivision Map Act (SMA). This article explains how those time limits work together.
The Permit Streamlining Act
PSA (Govt C §§65920 et seq.) was enacted in 1977 to expedite the processing of permits for development projects by state and local government agencies. Govt C §65921. PSA achieves this goal by setting forth various time limits within which state and local government agencies must either approve or disapprove a permit. If an agency fails to approve or disapprove a permit within specified time limits, the permit is subject to being "deemed approved." Govt C §65956(b). A deemed approved permit confers the same privileges and entitlements as a duly issued permit. Ciani v San Diego Trust & Savings Bank, (1991) 233 CA3d 1604.
As explained below, however, a permit cannot be deemed approved until the agency is provided with notice of the applicant's intent to invoke PSA and with the opportunity to hold a public hearing regarding it.
Starting the Clock
The PSA clock does not start ticking until the applicant submits a completed permit application. The agency has 30 days after an application is submitted in which to inform the applicant whether the application is accepted as complete. Govt C §65943; 14 Cal Code Regs §15101. If the agency fails to inform the applicant within that 30-day period, the application will be "deemed complete" as long as the application included a statement that it is an application for a development project. A new 30-day period begins with each resubmission of an application. Govt C §65943.
An agency does not have unlimited authority to reject an application. Agencies are required to make lists available to the public that specify in detail the information required for such an application. Govt C §65940. Although these lists may be revised, the revisions generally apply prospectively and not to pending applications. Govt C §65942. Agencies may not require an applicant to submit at the initial application stage all of the information required by the agency to take final action on the project. Govt C §65944.
Agencies also may not require applicants to waive or agree to extend the time limits governing applications for development projects as a condition of processing the application or as a condition of receiving approval. Govt C §65940.5; Pub Res C §§21100.2(3), 21151.5(3).
Coordinating PSA with CEQA
Under CEQA (Pub Res C §§21000 et seq.), 30 days after an application is accepted as complete or deemed complete, the agency must determine whether to require the preparation of an environmental impact report (EIR) or a negative declaration. Pub Res C §21080.2; 14 Cal Code Regs §15102.
An EIR is a document that studies the environmental consequences of a project in great detail. See, Cal Code Regs §15120 et seq. A negative declaration is much less comprehensive; it is prepared if there is no substantial evidence that the project may have a significant effect on the environment. A hybrid document, known as a mitigated negative declaration, studies the environmental consequences of a project, but in less detail than an EIR. 14 Cal Code Regs §15070. The same rules governing negative declarations for timeline purposes apply to mitigated negative declarations.
The 30-day time limit within which the agency must decide whether to require an EIR or a negative declaration may be extended by 15 days if the agency and the applicant consent. Pub Res C §21080.2; 14 Cal Code Regs §15102.
Time Limits for Negative Declarations
If the agency decides to require a negative declaration, the negative declaration must be adopted by 180 days after the application is accepted as complete. Pub Res C §21151.5(a)(1)(B); 14 Cal Code Regs §15107. Additional time to complete the negative declaration may be allowed by ordinance or resolution if justified by compelling circumstances and with the applicant's consent. Pub Res C §21151.5(a)(4). The negative declaration may be approved at the same time the development project is approved. 14 Cal Code Regs §15107.
Sixty days after adoption of the negative declaration or a determination that the project is exempt from CEQA, the agency must approve or disapprove the project. Govt C §65950(a)(2), (3). This period may be extended for 90 days with the applicant's consent. Govt C §65957; 14 Cal Code Regs §15111(c).
The applicant's unreasonable delay in meeting requests necessary for the preparation of the negative declaration may delay the approval period or even result in project disapproval. 14 Cal Code Regs §15109.
Subdivision Map Approvals with a Negative Declaration
If a development project that requires a negative declaration involves a tentative subdivision map, SMA (Govt C §§66410 et seq.) comes into play, and special rules apply.
Most city and county governments have a planning commission (or body with a similar title) to which the city council or board of supervisors delegates certain land use authority. Within 50 days after adoption of the negative declaration or a determination that the project is exempt from CEQA, one of three actions must be taken by the planning commission.
If it has the delegated authority to approve tentative subdivision maps (which is usually the case), it must approve, disapprove, or conditionally approve the map within the 50-day period. Govt C §§65952.1, 66452.1(b).
But if the planning commission has been delegated only the authority to make recommendations regarding the approval of tentative subdivision maps, it must recommend approval, disapproval, or conditional approval of the map within 50 days after adoption of the negative declaration or a determination that the project is exempt from CEQA. Govt C §§65952.1, 66452.1(a). Then, at its next regular meeting following receipt of the planning commission's recommendation, the city council or board of supervisors must fix a date in which to approve, disapprove, or conditionally approve the map. That date must be within 30 days of the receipt of the planning commission's report. Govt C §66452.2(a).
It is not clear whether the time limits governing tentative subdivision map approvals for which a negative declaration is required (or which are exempt from CEQA) may be extended for 90 days with the applicant's consent. Compare, Govt C §§65952.1(a), 65957.
Time Limits for EIRs
Immediately after deciding that an EIR is required, the agency must notify other governmental agencies with approval authority over the project by sending them a notice of preparation. 14 Cal Code Regs §§15082, 15375. If the agency decides to contract out the preparation of an EIR (under 14 Cal Code Regs §15084(a)), the agency is required to execute that contract within 45 days after the notice of preparation is sent out, unless the applicant agrees to an extension. Pub Res C §21151.5(b).
The EIR must be certified within one year from the date the application was accepted as complete. Pub Res C §21151.5(a)(1)(A). Additional time to certify the EIR may be allowed by ordinance or resolution if justified by compelling circumstances and with the applicant's consent. Pub Res C §21151.5(a)(4).
Development projects must be approved or disapproved within 180 days from the date the EIR is certified. Gov C §65950(a)(1). This period may be extended once for 90 days with the applicant's consent. Govt C §65957; 14 Cal Code Regs §15111(c). However, if the decision to certify the EIR was not made within the one-year deadline but was extended due to compelling circumstances, the agency must approve or disapprove the project within 90 days of certification of the EIR. Govt C §65950.1. This period may be extended once for 90 more days with the applicant's consent. Govt C §65957.
As with a negative declaration, the applicant's unreasonable delay in meeting requests necessary for the preparation of the EIR may delay the approval period or result in disapproval of the project. 14 Cal Code Regs §15109.
Subdivision Map Approvals with an EIR
The time limits for tentative subdivision map approval when an EIR is required are the same as when a negative declaration is required. Accordingly, 50 days after certification of the EIR, the planning commission must approve, disapprove, or conditionally approve the map if it has that authority. Govt C §§65952.1, 66452.1(b). If the planning commission has only the authority to make subdivision map recommendations, it must recommend approval, disapproval, or conditional approval of the map within 50 days following EIR certification. Govt C §§65952.1, 66452.1(a). At the next regular meeting following the planning commission's recommendation, the city council or board of supervisors must fix a date by which to approve, disapprove, or conditionally approve the subdivision map. That date must be within 30 days of receipt of the planning commission's report. Govt C §66452.2(a).
As with tentative subdivision map approvals for which a negative declaration is required, it is not clear whether the time limits governing subdivision map approvals for which an EIR is required may be extended for 90 days with the applicant's consent. Compare Govt C §§65952.1(a), 65957.
Timelines for Responsible Agencies
The timelines discussed above assume that the agency involved is the "lead agency" and principally responsible for carrying out or approving the project. Pub Res C §21067; Govt C §65929. Different rules apply if the agency is a "responsible agency," which is any agency other than the lead agency that is responsible for carrying out or approving the project. Pub Res C §21069; Govt C §65933.
Responsible agencies are required to approve or disapprove a development project that has been approved by the lead agency within 180 days from the later of: (1) the date on which the lead agency approved the project, or (2) the date on which the application for the project is accepted as complete by the responsible agency. Govt C §65952.
Limits on Time Extensions
As noted above, a number of the PSA's time limits may be extended once for a period of up to 90 days on the mutual consent of the agency and the applicant. Govt C §65957. However, no extension, continuance, or waiver of PSA time limits is allowed beyond the one-time 90-day extension permitted under section 65957.
PSA Does Not Apply to All Permit Applications
If the development project requires a general plan amendment, zoning ordinance amendment, or similar legislative action, PSA time limits do not apply. Legislative enactments are beyond the reach of PSA. Land Waste Management v Contra Costa County, (1990) 222 CA3d 950, 959; Landi v County of Monterey, (1983) 139 CA3d 934, 937.
PSA also does not apply to the approval or disapproval of final subdivision maps. Govt C §65927. Nor does PSA apply to permits for ministerial projects, which do not involve the exercise of governmental discretion. Govt C §65928. Finally, PSA applies only to "development projects" as that term is defined in Government Code section 65928.
The Mistake That Everyone Makes
Most people affected by PSA, including real estate professionals, government officials, and citizen activists, assume that PSA is self-executing. It is not. Yes, the permit will be deemed approved if the agency fails to approve or disapprove a project within PSA's time limits. However, the deemed approved status may be conferred only if the "public notice required by law has occurred." Govt C §65956(b). The purpose of this notice requirement is to provide the agency with a final opportunity to hold a public hearing and make a decision on the project.
Unfortunately, PSA is silent on who (other than the agency) must be notified and how far in advance of the public hearing notice must be given. See, Ciani, 233 CA3d at 1619-1620. Case law suggests, but does not require, adaptation of notice provisions from state land use law. Horn v County of Ventura, (1979) 24 C3d 605, 618. It would be prudent, therefore, to provide at least ten days' prior notice of the hearing to property owners within 300 feet of the applicant's property. See Govt C §65091 (public notice of pending zoning decision).
An applicant can cause the public notice required by law to occur in one of two ways. First, the applicant can seek the issuance of a writ of mandate (under CCP §1085), directing the agency to provide the public notice or to hold the hearing, or both. This action must be filed at least 60 days prior to the expiration of the time limits set forth in Government Code section 65950, and it has precedence over other civil suits. Govt C §65965(a).
Second, the applicant may provide the public notice, although this is rarely done. The applicant must give 7 days' advance notice to the agency of its intent to provide public notice. Govt C §65956(b). The public notice may not be provided earlier than 60 days after the expiration of the time limits set forth in Government Code section 65950. If the applicant provides this notice, the time limits for project approval are extended to 60 days after the notice is given. Govt C §65956(b).
The applicant may look to the public agency for guidance on what constitutes adequate distribution of public notice. The minimum contents are set by statute and must include the following: a description of the proposed development, which is substantially similar to the descriptions that are commonly used in public notices by the permitting agency; the location of the proposed development; the permit application number; the name and address of the permitting agency; and a statement that the project shall be deemed approved
if the permitting agency has not acted within 60 days. The applicant may then be entitled to a refund of any fees that were collected for providing notice and that were not used for that purpose. Govt C §65956.
John Eastman is an Assistant City Attorney in Redondo Beach.
Article updated: January 2004