In September of 2022, Governor Newsom signed AB 2234 (Rivas, R.), which establishes mandatory timeframes for local agencies to issue post-entitlement permits, and represents another step in the Legislature’s continued efforts to facilitate housing production. The affected permits include all nondiscretionary permits and reviews filed after a project’s entitlement and which are required by any county, city, or county and city (a “local agency”) to begin construction of a project that is at least two-thirds residential, including building, demolition, grading, excavation, and off-site permits.
AB 2234 is notable because its mandatory timelines aim to curtail the “post-entitlement doldrums” developers sometimes encounter when applying for building permits to construct an approved project. AB 2234 is slated to go into effect for most jurisdictions on January 1, 2024.
CONSISTENT APPLICATION REQUIREMENTS
Under the new law, local agencies must prepare post-entitlement permit application lists specifying required application materials. Local agencies are also required to post an example of a complete set of post-entitlement permits for at least five types of housing development projects, such as accessory dwelling units, duplexes, multifamily, mixed-use, and townhomes. As described below, this application submittal list cabins local agencies’ permit reviews and requests for additional information.
MANDATORY TIMEFRAMES FOR APPLICATIONS AND ISSUANCE OF PERMITS
15 days to determine if an application is complete, based on compliance with the publicly-available list of required application materials.
A local agency must determine whether an application for a post-entitlement permit application is complete within 15 days of receiving the application. In reviewing an application, the local agency cannot require an item that was not previously included in the list of required application materials. If the agency determines that an application is incomplete, the agency must specify the incomplete items and describe how the application can be made complete, and may only request incomplete items that are missing from the local agency’s required application material list (above). Local agencies must also review subsequent reapplications providing the specified incomplete items within 15 days. If the agency fails to make a determination on the completeness of an application within the 15 day period, the application shall be deemed complete.
30-60 days to approve an application or request specified revisions.
For housing development projects with 25 or fewer units, the local agency shall complete review and either return a full set of comments with a comprehensive request for revisions or return the approved permit application within 30 business days of the local agency’s determination that an application is complete. For housing development projects with 26 or more units, the local agency has 60 business days.
These time limits do not apply if the local agency makes written findings within the above time limits, based on substantial evidence, that the proposed permit might have a specific adverse impact on public health or safety requiring additional processing time. Notably, however, such adverse impacts are defined as “significant, quantifiable, direct, and unavoidable” impacts based on “objective, identified, and written public health or safety standards, policies, or conditions” that existed at the time the application was deemed complete. The time limits may also be tolled if an outside entity is required to review the application. The tolled period shall be for the duration of the outside entity’s review, and the local agency shall complete its review with the time remaining in the applicable 30 or 60 day time limit.
As with the procedure for determining that an application is complete, if the local agency finds during its 30 or 60 day review period, as applicable, that an application is noncompliant, it shall list the items that are noncompliant and describe how they can be remedied. Review of any resubmitted application is also subject to the applicable 30 or 60 day time limit.
APPEALS RESOLVED IN 60-90 DAYS
An applicant may appeal the local agency’s determination of noncompliance. Projects with 25 or fewer units must receive a final written determination on the appeal within 60 business days of receipt of the applicant’s appeal. For projects with 26 or more units, the time limit is 90 business days. For all projects, the fact that an appeal may be heard at both the planning commission and governing body of a local agency does not alter the applicable 60 or 90 business day time limit.
LOCAL AGENCY’S FAILURE TO COMPLY
A local agency’s failure to meet AB 2234’s time limits is a violation of the Housing Accountability Act, which can lead to a lawsuit against a local agency and result in a court’s imposition of attorneys’ fees and fines.
LOOKING AHEAD: PROPOSED LEGISLATION EXTENDS AB 2234’S IMPACT
Three bills in the current legislative session focus on the granular mechanics of post-entitlement permitting. AB 1114 (Haney) would modify the definition of “post-entitlement phase permits” to apply to all post-entitlement permits required to begin construction of developments that are at least two-thirds residential and clarify that issuance of post-entitlement phase permits is a local agency’s ministerial duty. AB 281 (Grayson/Rivas) would broaden AB 2234’s applicability to special districts, such as water and fire districts, by defining “local agency” to include special districts. Similarly, SB 83 (Wiener) would require utility companies to comment on post-entitlement permit applications and connect new construction to the electrical grid within specified time limits.
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