6. Frequently Asked Questions for Expedited Review
Frequently Asked Questions
6.1 Definitions
A. What is the definition of affordable housing in Proposition 123?
Proposition 123 provides the following definition of affordable housing that specifically applies to unit counting towards local government commitments:
(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.
Since the fast track section of statute doesn’t specify, DOLA interprets this general definition to apply, but also considers it allowable for a local policy to have a broader definition of affordable housing.
B. Can a local Fast Track Review policy include affordability protection mechanisms or terms of affordability?
The Proposition 123 statutory definition of affordable housing is silent on affordability protection mechanisms or terms of affordability (i.e., does not require a contractual requirement for affordability protection for any term length). Nothing in statute requires nor prohibits this type of restriction on the criteria that qualifies an applicant for expedited review.
If a local government’s affordable housing definition includes affordable housing protection mechanisms or affordability terms (i.e., how long the housing will be restricted as affordable), it could be considered more restrictive than statute, thereby denying fast track review to an applicant whose project may otherwise qualify for fast track.
DOLA recommends creating a more narrowly tailored definition for projects which qualify for expedited review that allows for any project that meets the income requirements listed in Section 6.1A above by separating references to affordability protection mechanisms or affordability terms from determining which projects qualify for expedited review. A local government may allow affordability protection in determining which projects qualify for other incentives.
For example, a project with a 15 year affordability term that meets the income limits would still qualify, according to statute, for expedited review.
A project intending to meet the required AMIs and income limits but without affordability protections may expect to be expedited based on the definition in statute. Local governments attaching affordability protections to the Fast Track eligibility criteria are encouraged to seek the advice of their attorney.
C. 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 and clearly communicate to applicants what a complete application entails by establishing a thorough completeness check process. (See the best practices on pre-application checklists.)
6.2 Applicability
A. Do Fast Track Review requirements apply to tribal governments?
While the Fast Track Review Process requirements outlined for Proposition 123 (C.R.S. 29-32-105(2)) include tribal governments, DOLA recognizes that the expedited review requirement is generally not applicable for tribal governments, as housing projects within sovereign lands are typically managed internally.
B. What development projects are subject to the expedited review requirements under Proposition 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 Proposition 123 definition of affordable housing is considered a minimum standard. Local governments may establish a policy with a broader 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 Proposition 123 requirements, as long as the policy meets the minimum standard established in Proposition 123.
C. What types of development 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. Proposition 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 Proposition 123 funding does not necessarily meet the definition of affordable housing provided in the statute and, thus, does not necessarily require expedited review.
The Fast Track Review Process must apply to the types of applications listed below if they are defined as separate types of applications by the local government and the application includes initial construction or modification or adaptive reuse of an existing structure for Affordable Housing. For the required application types, the 90-calendar day period must also include a final decision on any request for an administrative adjustment or administrative minor modification of development standards permitted by the local government for that type of application.
Required
- Site Plan
- Development Plan
- Conditional or Special Use Permit or Approval
- Permitted Use Permit or Approval
- Planned Unit Development approval or amendment that is not limited to zoning approval or subdivision of land
- Building Permit
- Variance
- Construction or engineering documents that local regulations require be included in the types of applications listed above
- Modifications of site plan, development permit, variance, or required construction or engineering documents following initial approval of an Affordable Housing project
Not Required
- Annexation
- Comprehensive Plan Amendment
- Concept Review
- Pre-Application Review
- Initial Zoning or Rezoning
- Preliminary or Final Subdivision of land
- Planned Unit Development approval or amendment that includes zoning approval or subdivision or land
- Construction or engineering drawings that local regulations do not require be included in the types of applications listed above
- Sign permits or other related permits related to the development where the timing of approvals will not prevent or delay the applicant from moving forward with the Affordable Housing construction
- Permits related to changes in non-residential use, occupancy, or tenant finish for a project or portion of a project that has already been constructed or is already in non-residential use
Appeals
Each of the processes marked “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.
Please refer to Sections 2.1C and 2.1D of the Fast Track Guidance for more information.
6.3 The 90-Day Decision Requirement
A. What constitutes a “final decision” on an application under Proposition 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 Proposition 123.
B. 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 the allowable 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.
C. If a local government is doing everything right but an applicant is being slow to respond, how does that affect the 90-day requirement? Or is that when an extension would come into play?
This Guidance lists "If an applicant becomes non-responsive regarding their application and response to agency comments" as one of the reasons a local government may choose to use a 30-day extension.
For this reason, local governments are encouraged to convey to applicants the importance of working in partnership. Communities concerned about applicants being slow to respond should definitely set expectations on applicant response times either in their applicant guidance materials or in policy language.
D. Are extensions to the Fast Track Review Process allowed, and if so, how do they work?
Local Fast Track review processes may allow for extensions to the 90-calendar day time frame as long as they align with Proposition 123 statutory requirements (C.R.S. 29-32-105(2)(b) and (c)).
(1.) Applicant-Requested and Externally Required Extensions (2b)
This is an optional tool local governments can incorporate as part of their expedited review process. It is described in C.R.S. 29-32-105(2)(b) which includes three distinct scenarios where extensions are allowed:
(1) a one-time 90-calendar day extension at the request of the applicant,
(2) an extension to allow time to comply with a state law or court order (the length of which is determined by the law or court order),
(3) an extension to allow for a review period by an agency that requires review and approval of the project (this required review timeline may be outside the control of the local government, and could theoretically extend beyond 90 days). DOLA encourages local governments to work with referral agencies to create agreements that make it possible to expedite reviews, and minimize the need for extensions.
When requested by the applicant, the process is extended one time by up to 90-calendar days. If the local government offers extensions for situations (2) and/or (3) above, then the normal 90-day Fast Track decision requirement would be extended until the resolution of the conflict with the state law or court order or the completion of the government or agency review period and any changes required as a result of that review.
Per the intent of the bill, DOLA interprets the phrase from statute “within the local government or outside” to mean within or outside geographically, but outside the control of the local government. Note: this guidance should not be considered legal advice. Jurisdictions are encouraged to consult with their own legal counsel.
(2.) Local Government-Initiated Extensions (2c)
This is another optional tool local governments can include as part of their expedited review process. It is described in C.R.S. 29-32-105(2)(c). When used, a local government will notify the applicant of the intent to extend the process. The applicant 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 applicant. The extension provides additional time for the applicant 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 of situations that may require extensions include:
- the receipt of additional information regarding soil conditions,
- the adequacy of existing utilities or fire protection services,
- or the safety of proposed site access points.
They do not include comments unrelated to project compliance with adopted plans or applicable laws or regulations.
6.4 Compliance
A. What if our community already approves applications within 90-days?
DOLA recognizes that some communities may already have a process in place that meets or exceeds the 90-day time frame requirements of Proposition 123 without having a formally adopted process. These communities need only document their local process aligning with Proposition 123 criteria.
A local government whose development review process is already under 90 days per application, should be able to demonstrate compliance with the fast track requirement by completing these simple steps:
- Review the Local Government Self-Assessment Checklist provided by DOLA and internally confirm whether your jurisdiction is already meeting these requirements.
- Demonstrate your jurisdiction's commitment to continued compliance with these requirements by codifying the process. A downloadable template resolution has been provided for this purpose and can be found on the Fast Track Resources webpage.
- Submit documentation through DOLA’s Proposition 123 Compliance Portal.
B. How do we document that we have implemented a Fast Track Review Process that is compliant with Proposition 123?
Jurisdictions may demonstrate compliance in a variety of ways, depending on each community’s unique circumstances. When reviewing a local government’s submission to the Fast Track Compliance Portal, DOLA seeks to verify that the jurisdiction has implemented a process to expedite the development review process for affordable housing applications, as required by statute (C.R.S. 29-32-105(2)). Inevitably, this means something different for each community.
For some communities, particularly smaller ones, who are already under 90 days per application (already compliant), it may be sufficient to adopt a resolution that codifies their commitment to continued compliance. DOLA provides a template resolution for this purpose and encourages communities to use it. This resolution probably isn’t the right template for jurisdictions whose policies and procedures have more complexity.
For jurisdictions whose review process has historically required more than 90 days, it will be important to highlight the systemic changes that have been implemented, and a resolution or ordinance might be the final step to codify new policies and procedures. DOLA would also expect to see additional documentation of implementing a process with key policy language that:
- demonstrates an understanding of the statutory requirements,
- outlines which application types will be fast tracked, which housing projects are eligible, how the extensions work, and
- communicates to applicants the expectations for a complete and technically sufficient application, and what applicants can expect from the process.
Some jurisdictions are revising land use or development codes to outline Fast Track Review criteria and processes, which is then codified by an ordinance. Others have indicated that an Administrative Procedures document is where the majority of their Fast Track process would be outlined. Some are using inter-departmental agreements to ensure alignment between all involved parties, or MOUs / IGAs with external agencies, while others are pursuing interjurisdictional alignment of land use codes to provide a degree of regional predictability for developers. Theoretically, a community could demonstrate compliance by providing data of start dates and decision dates for all affordable housing projects with evidence that application review times are always within 90 days.
Again, DOLA anticipates communities may demonstrate compliance in a variety of ways and is working to be flexible about the documentation that is appropriate for each community’s situation. Communities can use the Local Government Self-Assessment Checklist as a guide and DOLA staff can provide a courtesy review of draft policies. Once a community’s Fast Track Review policy is adopted, the community can submit it to the Proposition 123 Compliance Portal.
C. What happens if a local government fails to implement a Fast Track Review Process?
If a jurisdiction has not implemented the expedited review requirement by January 1, 2027, the jurisdiction would no longer be eligible for Proposition 123 funding indefinitely, or until the jurisdiction can demonstrate compliance with this requirement. In this situation, ineligibility would extend to residents, developers, and other types of applicants for projects within that jurisdiction, other than funding from DOLA’s Homelessness Support Programs, which are not subject to these requirements.
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