2. Legal Requirements

This section of the Fast Track Guidance addresses the legal requirements for the design of a Fast Track Review Process and the administration of that system to comply with Proposition 123 (C.R.S. 29-32-101(2) and 29-32-105(2) et seq.).  

2.1 Applicability & Design of a Fast-Track Review Process

A. Project Applicability

The Fast-Track Review Process must apply to all applications in which 50% or more of the dwelling units are Affordable:

• For rental housing units, Affordable means that monthly rent is less than or equal to 30% of the monthly income of a household earning at or below 60% Area Median Income (AMI).
• For for-sale housing units, Affordable means that monthly payments are less than or equal to 30% of the monthly income of a household at or below 100% Area Median Income (AMI). 

Note: The statute’s 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.

The Fast Track Review Process can be modified to apply more broadly than the minimum defined in statute:

• Local governments may establish a review process that applies to housing projects with less than 50% of the units being affordable, or that would fast track housing projects that include higher AMIs (i.e., above the 60%/100% AMI requirements)
• Example A - Exceeds Requirements: A local government could apply its Fast Track Review Process to housing projects where only 30% of the units are affordable because the jurisdiction is trying to incentivize any development that provides affordable housing. This not only meets but exceeds the statutory requirement.
• Example B - Exceeds Requirements: A rural resort community that wants to incentivize housing developments with higher AMIs could apply its Fast Track process to a development with up to 150% AMI. This not only meets but exceeds the statutory requirement because the  process is applicable for both lower AMI units as well as higher AMI units.
• Example C - More Restrictive: A community requires all units in a housing development project to be Affordable in order to be eligible for its Fast Track Review Process. This does not comply with statute because Proposition 123 requires a fast track review process for any housing development project with 50% or more Affordable units. Requiring all units to meet affordability requirements would be more restrictive than the law requires.

(1). Mixed-Use Projects

The Fast Track Review Process may also apply to development applications that are either mixed-use or mixed-income, as long as 50% of the residential units in the project meet the definition of Affordable Housing. If the local government has a separate review and approval process for these uses, the administration of those separate procedures is allowable as long as a decision on the Affordable Housing portion of the project can be issued within 90 days.

B. Process Design

The Fast Track Review Process must render a final decision on a permit or approval required for an Affordable Housing application within 90 calendar days after receipt of a completed application.

Communities that already have a process in place that meets or exceeds the 90-day Fast Track Review Process requirements only need to document that process to DOLA in the form of a resolution, ordinance, policy, or land use code that lays out the policy specifics that meet or exceed Proposition 123 requirements. DOLA offers a downloadable template resolution as a resource for local governments which can be found on our Fast Track Support & Technical Assistance webpage.

Where a local government has a separate application process for a particular type of development approval, permit, or variance, a separate 90-calendar day Fast Track Review Process may apply to each of those procedures.

Example: a town might require a project to apply for three permits for a specific project: a conditional use, site plan, and building permit. Each of those review processes must take no more than 90 days (or 270 days total, although DOLA recommends local governments utilize overlapping rather than stacked review time periods to reduce the overall length of the review process). 

C. Application Types - Required 

The Fast Track Review Process must apply to the following types of applications 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 those types of applications listed above, the 90-calendar day review 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.

D. Fast-Track Review Process Exceptions

(1.) Application Types - NOT Required

Does not apply to any of the following types of approvals necessary for an Affordable Housing project:

(2.) Additional Instances Where Requirements DO NOT Apply 

In addition to the application types listed above that do not require Fast Track Review, Fast Track Review requirements DO NOT apply in the following instances: 

• Do not apply to any of the application types listed in the table above;
• Do not apply to any applicant who decides to opt out of the Fast Track Review Process, which the applicant can do at any time by notifying the local government in writing. If the project requires more than one Fast Track application, the applicant can opt out for one, or some, or all of the required Fast Track applications; and
• Do not apply to projects that do not meet the definition of Affordable Housing above, even if the project has obtained Proposition 123 funding.

2.2 Administration of a Fast-Track Review Process

A. The 90-Day Decision Requirement

• The 90-calendar day Fast Track Review Process time frame starts upon submission of a complete application, as defined by the local government. A completed application includes all required studies or documents required by local regulations.
• The 90-calendar day clock must run continuously following determination of a complete application as defined by the local government unless and until the applicant or local government exercises one of the extension options described below.
• A final decision of project approval, approval with conditions, or denial must be issued within 90 days after acceptance of a completed application.
  • A recommendation from a recommending body (such as a Planning Commission) is not considered a final decision.
• If a project is withdrawn and a new application is submitted, a new 90-day review process applies to the new application.
• Post-approval steps such as obtaining signatures or recordation of documents do not have to be completed within the 90-day period.

B. Extensions 

Local Fast Track Review Processes may allow for extensions to the 90-calendar day time frame as long as they align with Prop. 123 statutory requirements (C.R.S. 29-32-105(2)(b) and (c)).

(1.) Applicant-Requested and Externally Required Extensions (2b)

Local governments may offer: (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), and (3) to address comments from an agency that has approval authority over the project (this required review timeline is out of the control of the local government, and could theoretically extend beyond 90 days). For example, local review may refer project review to a water district to determine whether they can serve the project. DOLA encourages local governments to work with referral agencies and create agreements to expedite reviews.

(2.) Local Government-Initiated Extension (2c)

During each Fast Track Review Process, the local government may notify the applicant of its intent to extend the 90-calendar day period by an additional 30 days in order to address additional comments or concerns that arise during development review. The applicant is encouraged (but not required) to respond within 5 business days acknowledging the extension notice. The extension is for 30-calendar days (which begins once the local government receives the applicant’s response). While this optional extension can be exercised more than once, DOLA encourages local governments to adopt solutions that will minimize the need for multiple extensions.