The Entitlement Process – Some Key Early Steps

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in on Nov 1, 2016.

As a facilities management professional bringing a new project on-line can be challenging. Hitting snags in the entitlement process can knock your project off track. This article describes some early steps you can take to help avoid snags in the entitlement process.

Let’s start with your objective. You need to have your project approved on-time, on-budget and without unacceptable conditions. Under the law a governmental agency is required to approve a project if it complies with applicable regulations. Therefore, where possible, your plans should comply. This sounds simple. But how do projects get off-track? In my experience projects get off track by (1) failing to conduct an independent Code review; (2) ignoring past approval history, and (3) allowing governmental officials too much latitude in applying the regulations.

Code Review

Once a conceptual plan is prepared an experienced land use professional should conduct a review. A review is valuable for several reasons. First, the regulations are often complex and unclear, and may be modified by court rulings. Second, the design professional may be: (a) too conservative in failing to take advantage of Code interpretations that you may be entitled to or (b) too aggressive with Code interpretations putting your project at risk. Third, the design professional may be too quick to suggest a waiver rather than pursuing an interpretation or a design alternative that provides for regulatory compliance. Someone on the team should question each waiver. An unneeded waiver request can make approvals more difficult to obtain and make your project susceptible to challenge.

Approval Review

Internal and municipal records of past approvals should be reviewed. This can reveal contentious issues from the past, how various Codes were applied and whether there are any conditions of approval that affect your project. A municipal file review will ensure that you have the information available to the municipality and any objectors.

Application of Regulations

There is often an urge to rush to meet with the local municipality to discuss the project. These meetings may be for the purpose of getting a reaction to your plan and being “told” what the requirements are. While early municipal insight is valuable, doing so prematurely can hamper your efforts. As a general rule I do not engage with the municipality on the project specifics until a thorough Code and approval history review are complete. These reviews should flag issues to allow you to strategize with your team on the desired results. Armed with that information you can set the agenda for the meeting and work towards the results you want. This is preferable to the “hat-in hand” approach of being “told” what the requirements are.

Employing these early steps should help you meet your objective -getting your project approved on-time, on-budget and without unacceptable conditions.