January 30, 1991 - From the January, 1991 issue

Is Permit Streamlining Act a New Protection Or a False Hope?

In 1990, for the first time in the City of Los Angeles, a developer suc­cessfully invoked a seldom-used state law known as the Permit Streamlining Act to obtain approval of a retail project on Venice’s Ocean Front Walk. As a result of an appeal, the true meaning and usefulness of the Permit Stream­lining Act appear destined to be clari­fied in the courts. Clare Bronowski, a land-use attorney with the law firm of Christensen, White, Miller, Fink & Jacob and is a Contributing Editor of The Planning Report, writes on this incident and its possible consequences to land use and planning in SoCal.

What is Permit Streamlining? 

In the Permit Streamlining Act, enacted in 1977, the Legislature declares that the act’s purpose is “to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects.” (Government Code Section 65921.) 

The Permit Streamlining Act ap­plies to local land use decisions on development permits. It only applies to adjudicatory permit decisions, not “legislative” decisions such as zone changes and general plan amendments.

The act provides that projects will be automatically deemed approved following prescribed public notice re­quirements if a local agency fails to act within certain specified time limits. 

Once a project application is re­ceived by a city, within 30 calendar days the city must inform the applicant in writing whether the application is complete and accepted. If incomplete, the city must detail the deficiencies in the application and specify what addi­tional information is needed.

Other deadlines follow from the date that the application is accepted as complete or deemed complete. The act provides that the city must approve or disapprove a project requiring an EIR within one year of this date. 

A city must approve or disapprove a project requiring a negative declara­tion within six months from the date. One 90-day extension period is allowed with the consent of both the city and the applicant. 

Failure to act within the specified time limits results in automatic approval of the project—so long as certain public notice requirements have been met. Public notice may be given by the applicant if the city fails to act. 

The Limits of Streamlining 

It all sounds pretty simple—but restrictions in the act and in court decisions regarding its application se­verely limit the usefulness of the Permit Streamlining Act and, in reality, its provisions seldom act to approve projects automatically. 

In 1990 it was held that the act does not apply to any project that is not consistent with the local agency’s General Plan or applicable zoning provisions. Therefore, when a project involves some applications which are legislative in nature and some which are adjudicatory development permits, the permits can be delayed indefinitely so long as the legislative determinations are delayed. See Land Waste Management v. Contra Costa County, 222 Cal.App.3d 950 (1990). 

Another court decision appears to limit application of the act to cases where review under the California Environmental Quality Act (CEQA) has been completed. In Orsi v. City Council of Salinas, 219 Cal.App.3d 1576 (1990), the court upheld the automatic approval of a development permit but based its de­cision upon the fact that negative declaration for the project was already adopted by the Planning Commission. 

In the Venice case, applications for a project permit, yard and zone variances, a coastal development permit, and two conditional use permits were accepted as complete by the City of Los Angeles on October 13, 1988 and January 10, 1989. A public hearing on the project was held in April, 1989. 

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In addition, although the Envi­ronmental Assessment Form for the project was accepted with the original permit applications on October 13, 1988, the initial study was not completed by the Planning Department until February 5, 1990—sixteen months later—and the negative decla­ration and environmental clearance were never finalized. 

The City Attorney opined that the City had violated both the Permit Streamlining Act and time limits imposed in CEQA(Public Resources Code 21151.5) in delaying the project in this manner. Stating that the negative declaration was required to be complete within six months, the City Attorney advised that the City’s failure to act on the applications had resulted in the project being “deemed approved by operation of law.” 

Pursuant to this decision, the zon­ing administrator issued a letter of de­termination in July, 1990 approving the six discretionary items for the project without conditions. 

CEQA vs. Permit Streamlining 

Following this decision, a lawsuit was filed by local opponents of the project seeking to set aside the determination on the grounds, among others, that the Permit Streamlining Act could not preempt CEQA and that the environmental review and mitigation for the project must be completed. 

With the lawsuit pending, the lo­cal opponents of the projea appealed the zoning administrator’s determination to the Board of Zoning Appeals. The Board of Zoning Appeals decided to hear the case and held a lengthy public hearing with an unprecedented appearance by the State Attorney General’s office. 

The Attorney General’s office also argued that the Permit Streamlining Act was not intended to preempt the provisions of CEQAand that a contrary determination by the Board would have overwhelming statewide implications. The Board of Zoning Appeals decided in favor of the project opponents and returned the matter to the Zoning Administrator for full processing. 

The Act’s Impacts 

As a practical matter, the impact of the Permit Streamlining Act has been that the City of Los Angeles will no longer accept an application for a development permit until the appli­cant has received environmental clear­ance. This prevents the time clocks of the act from starting until the City has completed a negative declaration or full EIR. Other jurisdictions delay their acceptance of applications by asking for detailed and supplemental information. 

In the Venice case, the wheels of City processing continue to turn in a decidedly non-streamlined manner. Meanwhile, both sides of the dispute have vowed to have the matter settled in the courts. The developer is expected to file suit soon seeking to reinstate the automatic approvals. 

Whether the project on Ocean Front Walk will ever see the light of day has yet to be determined—but it seems dear that an important issue regarding the applicability of the Permit Streamlining Act will be decided by the courts.

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