What is the definition of affordable housing in Prop. 123?
What development projects are subject to the expedited review requirements under Prop. 123?
What constitutes a “final decision” on an application under Prop. 123?
Can you describe the 90-calendar day developer extension and how this process works?
How does the local government’s 30-calendar day extension(s) work?
What is the definition of affordable housing in Prop. 123?
(1) (a) Rental housing at or below 60% AMI, or
(b) For-sale housing at or below 100% AMI, and
(2) Which costs the household less than 30% of its monthly income.
What development projects are subject to the expedited review requirements under Prop. 123?
A development project is subject to the expedited review requirements if fifty percent (50%) or more of the residential units are classified as affordable. The Prop. 123 definition of affordable housing is considered a minimum standard. Local governments may establish a policy with a local definition of affordable housing. For example, a local policy may require expedited review for projects with higher AMIs or with a smaller percent of units being affordable. In other words, a local government’s policies or procedures could exceed the Prop. 123 requirements, as long as the policy meets the minimum standard established in Prop. 123.
What constitutes a “final decision” on an application under Prop. 123?
A final decision refers to the official approval or denial of an application. Local governments have autonomy to manage the expedited review process, ensuring it meets or exceeds statutory requirements. Final decisions include administrative decisions by staff or by a governing body through a public process, in accordance with local regulations.
A final decision does not refer to recommendations by a recommending body, such as a planning commission or review board, nor does it include the time needed for post-approval steps such as obtaining signatures or recordation. Appeals or petitions typically occur following a final decision and are not considered part of the original application process and are therefore not subject to the expedited review process of Prop. 123.
What types of development permit applications are required to follow the expedited review process under Prop. 123?
DOLA has prepared the following list of commonly used local development application and permit names. Prop. 123 ties the expedited review process to the development of affordable housing projects (as defined in this statute) and is not applicable to other types of development projects or application types. A project applying for or having been awarded Prop. 123 funding does not necessarily meet the definition of affordable housing provided in the statute and, thus, does not necessarily require expedited review.
- Required: Expedited review requirements of Prop. 123 apply.
- Possibly Required: Expedited review requirements of Prop. 123 may apply, depending on the processing of that specific application type by the local government. An explanation for this category is provided below the table.
- Not Required: Expedited review requirements of Prop. 123 do not apply.
Required
- Administrative Modifications
- Alternative Compliance
- Building Permit
- Conditional Use
- Development Plan
- Site Plan
- Special Use
- Use by Special Review
- Variance or Waiver
Possibly Required
- Accessory Use Permit
- Civil or Construction Drawings
- Master Plan
- Planned Unit Development
- Planned Unit Development Amendments
Not Required
- Annexation
- Appeals
- Comprehensive Plan Amendment
- Concept Review
- Pre-Application Review
- Rezoning
- Subdivision / Plat / Division of Land
- Subdivision Exemptions
- Zoning Establishment
Each of the processes marked “required” or “possibly required” above may require a 90-day process (e.g., a site plan, development plan, and building permit may be structured by the local government to each have their own permitting process and, thus, require their own 90-day review). However, DOLA encourages local governments to allow concurrent review rather than stacking 90-day review periods one at a time in a linear fashion. The goal is to streamline and expedite local processes as much as possible while still supporting a thorough review process and informed decision-making.
For application types listed under the Possibly Required column, whether the expedited review process is required depends on how the local government processes these application types. Below are a couple of examples to explain this approach.
- Example 1. In some local processes, civil or construction drawings are included as part of a site plan application and are processed together with the site plan. In this situation, the civil or construction drawings would be subject to the expedited review process. However, in other situations the civil or construction drawing process may be separate from or occur after or concurrent with the entitlement process. In this case, the expedited review requirements may not be applicable.
- Example 2. The planned unit development (PUD) process can vary depending on how it is used by the local government. If a PUD serves as a regulatory zoning document, the expedited review process would not apply. However, if the PUD serves as a development plan with site-specific criteria pertaining to an affordable housing project or development, the expedited review process would be required.
What defines the “submission of a complete application,” considering the overall process and time frame depend on this starting point?
Local governments are empowered to establish local policy and procedures by defining what a “complete application submittal” means. Typically, a complete application includes a thorough completeness check by local government staff to ensure all required materials are submitted before the formal review process begins. Although an application may be submitted, it may not be considered complete if there are deficiencies or missing items. As described in the Strategies section below, communities are encouraged to define what a complete application entails by establishing a thorough completeness check process. (See the best practices on pre-application checklists.)
How does the 90-calendar day expedited review time frame work? Are there any instances where the clock can stop?
The expedited review process is a tool for local governments and private developers to work in partnership to expedite the review of affordable housing projects. The 90-calendar day clock starts once a local government deems a submitted application complete, as discussed above. The clock does not stop during the process or between review rounds or while the applicant is working on changes/revisions, but may be extended through one or both of the two extension options outlined below. If a project is withdrawn and a new application is submitted, the clock starts over with the new application, as with any other new application subject to the expedited review process.
Can you describe the 90-calendar day developer extension and how this process works?
This is an optional tool local governments can incorporate as part of their expedited review process. When requested by the developer, the process is extended one time by up to 90-calendar days. The extension allows a developer to address comments on the application materials from an agency that has approval authority over the application. Examples may include the following.
- Comments from a state or federal agency that must be addressed to receive their approval on the application, if such approval is required.
- Building permit comments from the local fire district due to life safety concerns or requirements that must be resolved prior to approval by the fire district on the building permit application.
How does the local government’s 30-calendar day extension(s) work?
This is another optional tool local governments can include as part of their expedited review process. When used, a local government will notify the developer of the intent to extend the process. The developer is encouraged to respond within 5-business days acknowledging the extension notice. The extension includes the full 30-calendar day extension, plus the time it takes to communicate with and hear from the developer. The extension provides additional time for the developer and local government to address substantial comments.
As a best practice, governments should use the 30-calendar day extension(s) for unique circumstances or delays to the overall review process that are outside the control of the applicant or local government. Examples might include the following situations.
- When a developer’s resubmitted application materials do not address local government comments and are not accepted for review.
- When comments from the local government necessitate substantial changes to the overall application, resulting in a longer than anticipated resubmittal.
- If a developer becomes non-responsive regarding their application and response to agency comments.
- When an unexpected delay occurs during the public hearing process regarding notification requirements, such as a clerical error with newspaper or letter publications not meeting the notification deadline.
- When a decision-making body continues or refers an application back to a recommending body, preventing the project from meeting the 90-calendar day time frame.