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New Castle County, Delaware Application and Permitting Process
for Land Use and Development
 
Policy Dialogue Summary
 
Newark, Delaware, September 2 and 3, 2009

Submitted by: John H. Taylor, Jr
Executive Director of the Delaware Public Policy Institute

Dialogue Background

In the spring of 2009, the New Castle County Executive and various private entities asked the Delaware Public Policy Institute (DPPI) to consider convening a policy dialogue on New Castle County’s application and permitting process for land use and development. DPPI determined that there was sufficient interest and opportunity in undertaking the effort because:

  • With development slowed due to the economy, there was an opportunity to step back and review policies, procedures, and processes;
  • There was opportunity for improving the system, with the support of diverse constituencies; and,
  • While there may be a range of views on the overall Unified Development Code (UDC), environmental and natural resource protection, and growth management, the intent of this dialogue would not be to address these substantive issues or change existing policies, but rather to address the application and permitting processes for efficiency, timeliness, and economic competitiveness.

DPPI contracted with the Consensus Building Institute (CBI) to undertake an assessment of the issues, to develop a process plan for holding the dialogue, and to facilitate the dialogue, should one be convened. CBI (www.cbuilding.org) is a non-profit organization located in Cambridge, Massachusetts that has undertaken work in Delaware over the last fifteen years on a number of natural resource and land use issues. Given the findings of the assessment, CBI and DPPI concluded that a focused, problem-solving, dialogue on practical solutions to the process of application and permitting in New Castle County would be possible and fruitful. Consequently, the Delaware Public Policy Institute (DPPI) engaged a representative group of stakeholders in a policy dialogue on NCC’s application and permitting process. The dialogue seeks to review the current policies and proce& Participants), stakeholders evaluated the application and permitting process in terms of efficiency, timeliness, and economic competitiveness, and then developed specific, actionable recommendations to NCC and state agencies.

This document summarizes the key issues raised during the policy dialogue meeting. The purpose of this document is to provide a record of the main topics discussed during the meeting. This document is not a transcript of the proceedings of the meeting. To protect confidentiality and encourage candor, comments are not attributable to any specific participant. This summary is produced by CBI, the dialogue facilitator.

Background

The current land use and development permitting process involve review and approvals among various departments within New Castle County as well as outside of the County government. The Department of Land Use receives and reviews permit applications for commercial and residential development. Development and planning staff within the Department review the submittals for conformance with the various County ordinances, zoning, and the comprehensive plan. The Special Services Department also reviews the applications regarding sewer and stormwater issues. Unique to Delaware, the state’s Department of Transportation also has a direct and active role in reviewing applications regarding traffic, roads, and other transportation related issues. Although the state’s Department of Natural Resources and Environmental Conservation (DNREC) has established statewide stormwater and other environmental regulations, the state has delegated the stormwater reviews to the County. Also unique to Delaware, the state’s Fire Marshall must review plans related to fire and public safety. Ultimately once plans are approved by the various entities and construction commences, applicants must also obtain building inspections and certificates of occupancy from the Department of Land Use as well.

Briefings from the County and State Agencies

Three agencies, NCC Department of Land Use, Delaware Department of Transportation (DeIDOT), and Delaware Department of Natural Resources and Environmental Control (DNREC), presented current policies and procedures of their agencies. The agencies are currently working on several initiatives designed to revise and improve the overall land use and development permitting process and these efforts are noted below.

New Castle County Department of Land Use:

Due to the recession, the number of residential and commercial permits in NCC has declined considerably since 2007. In order to attract new and sustainable development projects, NCC has implemented several initiatives including redevelopment projects, workforce housing, the Base Realignment and Closure (BRAC) Act, and Smartcode practices. These initiatives are designed to provide affordable mixed-use developments and walkable neighborhoods. The Unified Development Code (UDC) has been updated to provide incentives for these initiatives including incentives for density, green development, and transit-oriented locations. Such initiatives are expected to attract new commercial and residential development in New Castle County. In addition to these incentives, NCC is updating the UDC to simplify the application and permitting process for new development projects.

Currently, it can take between 917 and 1200 days to complete the permitting process. In 2010, however, NCC is seeking to implement an Enhanced Review process that reduces the permitting process from three steps to two steps. The Enhanced Review Process has two stages: Exploratory Plan Review and Record Plan Review. During the Exploratory Plan Review, state agencies are more involved in early stages through Preliminary Land Use Service (PLUS) meetings. NCC will have a knowledgeable representative at PLUS meetings, a process designed to coordinate among agencies, in case of questions. The new process seeks to reduce redundant reviews and allow state and local agency reviews to occur concurrently. For example, the Traffic Impact study can be reviewed simultaneously with the PLUS review, reducing the overall review time.

Review times and submission dates have also been changed to expedite the process. Once the Exploratory Plan review is complete, the applicant has 36 months (increased from 12 months) to proceed to the second stage, Record Plan review. Once the record is submitted and approved, the applicant is given six months (reduced from 18 months) in which to correct any technical errors. The applicant must record the plan within that time period. Once the plan is recorded, the applicant has five years to commence construction. There has been some discussion regarding whether to extend the sunset period from five years to ten years because of the recession.

The Enhanced Review process aims to streamline the permitting process, engage the public and state agencies in dialogue at an earlier stage, and elicit comments and feedback on the plan so that expectations are clear. By the time of the public hearing, the developer will have received state and county comments on the project. Because state agencies are involved in the process earlier, more productive discussions can be held with the Planning Board on how to improve the plan. Many issues will already be on the table, which will eliminate uncertainty and provide the developer with a better sense of likelihood of approval. Furthermore, with this system, the community is aware of the plan and can start engaging with the proposal within the first few months. In addition to the Enhanced Review Process, several additional updates are being made to the Unified Development Code (UDC) including updates to the sign code and introduction of an omnibus bill to clarify the language, simplify complicated processes, and remove outdated provisions in the UDC.

Delaware Department of Transportation:

The Delaware Department of Transportation (DelDOT) review process is full of internal and external challenges. DelDOT is short staffed and has been overloaded with applications and reviews. Increasing staff is difficult because it is hard to predict how many applications will be received and how many times they will have to undergo review. Additionally, submissions are often incomplete and inaccurate and must be sent back with comments. Applications are returned an average of three or more times. Each application must be completely reviewed each time it is resubmitted due to the detailed technical nature and importance of a high degree of final accuracy. DelDOT recognizes these and other challenges, and they are looking for better, reliable, and more transparent procedures. One program, the SharePoint program, will help DelDOT document problems in the process and fix them going forward. SharePoint is a useful tool for tracking activities related to the project. Traditionally, it takes approximately two weeks just to distribute paper plans to the appropriate parties. With SharePoint, the software allows drawings to be accepted electronically. DelDOT is then able to notify the developer about whether the plan is reviewable within the first week. SharePoint also allows DelDOT to track time and where applications are in the process in order to see how long it takes staff to review submissions. SharePoint allows for more transparency and certainty within the process. With this new system, DelDOT aims to reduce its review time to 60 business days. Recently, the department has reduced its average review time from fourteen months to eight months. The program is now fully operational in Sussex County, and DelDOT hopes to have it fully operation in NCC by the end of the year.

Another DelDOT initiative is creating subregional plans in which traffic patterns over large regions in the county are considered. With subregional plans, the developer may have option of conducting their own traffic impact study (TIS) or contributing to an area wide TIS conducted by DelDOT. This process reduces the need for a TIS in applicable cases and shortens the overall review time. This process has been very successful in Middletown County, and now DelDOT is trying to implement it in NCC. DelDOT is committed to improving the process while ensuring a safe and smooth traffic flow. In order to do this, DelDOT has appointed an internal team to research process improvements. The team reports directly to DelDOT division directors, and is scheduled to present their findings and recommendations at the end of September.

Delaware Department of Natural Resources and Environmental Control:

Delaware Department of Natural Resources and Environmental Control (DNREC) is primarily in charge of the Sediment and Stormwater Management Plan. Generally, the county government handles stormwater review. In Kent and Sussex County, for instance, stormwater reviews are issued by the district agencies. With New Castle County however, reviews are processed through several agencies including Special Services, DNREC and DelDOT. DNREC recommends a pre-application meeting for all new development projects requiring a stormwater plan. In the meeting DNREC assists developers with their stormwater plans and discusses possible outcomes and approval requirements. Other environmental issues that often come up during the permitting process include air quality, brownfields, endangered species, and wetlands. For some of these issues, such as endangered species and non-tidal wetlands, federal agencies are in charge of conducting the reviews and issuing the approvals. The complexity of stormwater planning and the involvement of federal agencies often lengthen the time of the permitting process.

DNREC has committed the time and resources to reviewing applications in a timely manner. DNREC uses Value Stream Mapping (VSM) to map their review process in order to make it transparent and show where one’s application is in the process. The process reveals discrepancies with staff members’ reviewing of applications and dealing with applicants. DNREC is currently training its staff in facilitating VSM in order to keep this process alive in the agency and keep accountability in the system. Currently, this process is implemented in the air quality and brownfields construction process. Lack of resources prevents it from being used in the wetlands program as well. DNREC’s overall goal is to focus less on process and more on environmental outcomes that are best for the community.

Comments and Questions

The participants discussed outstanding issues and concerns with agency representatives. The following is representative of the prevailing ideas and themes from the meeting:

NCC Department of Land Use Review Process:

  • Clarification of 1000-day timeline: Participants requested an explanation of why the permit process takes approximately 1000 days. Explanations include: delays may stem from various causes including DelDOT backlog, litigation, and endangered species; every plan is unique, and requires a unique approach; number of applications before the County at any one time; timeline generally depends on the project, and the level of engagement and motivation of the applicant.

  • Need certainty in response time: Participants discussed the need for time-certain responses in which the agency responds to submitted applications within a certain timeframe. Delays in response time were seen by one participant as evidence of an institutional bias against private development and growth. Some noted that the delays of concern were less with the Department of Land Use and more related to Special Services and stormwater/septic reviews as well as with DelDOT.

  • Poor interagency coordination is a problem: Participants discussed how to have a more coordinated process among DelDOT, DNREC, and NCC. Participants expressed support for implementation of a performance measurement system to expedite the review process. Some suggested regular meetings for greater coordination and problem solving among the heads of the various key departments/agencies.

  • Engineering review is an iterative, time-consuming process: The participants discussed the iterative and sometimes lengthy process of engineering review. This may be due to complexity of the plans or inadequate plans. Some raised concern that the initial comments are not the concern so much as the extensive comments that are received after subsequent submittals. Agency participants noted that engineering review is a very detail-oriented process and each new submittal requires the same careful review. Similar complaints were expressed about the stormwater review and the entrance permit review process.

  • Costs are prohibitive and arbitrary: Development is expensive, especially given the state of the economy. Lengthy timelines increase costs (i.e., interest, consultant fees), and many small business owners cannot easily bear such costs. Newly imposed fee increases seem arbitrary. Fee increases would be more acceptable if applicants knew that fees were based on actual costs or time incurred by the agency.

  • Utilize best practices in technology to reduce timelines: One participant suggested that NCC should explore technological best practices that will allow the staff in different agencies to work better together. The preferred technology should enable all information to be web-accessible, display where the applicant is in the review process, and include a SharePoint system to track submitted documents.

  • Reduce delays in granting Certificate of Occupancy (CO): In the development process, all on-site improvements have to be completed and land has to be stabilized before a CO can be issued, but NCC tries to accommodate people through temporary certificates of occupancy (TCOs). TCO fees are expensive and increase as time passes. Possibility of issuing TCOs without charge for certain time periods or for specific instances was discussed.

DelDOT Review Process

  • Complexity of plans affects review time: varying complexity of plans makes it difficult for DelDOT to determine a reasonable, average amount of time for review. Participants felt it fair and reasonable to impose some certainty on DelDOT review time turnaround. One participant encouraged DelDOT to adopt the approach of the Coastal Zone Act in which turnaround times are incorporated into its regulations.

  • Unify DelDOT review process across counties: One participant noted that NCC is treated differently from the rest of the state in regards to TIS review and Letter of No Objection review. He suggested there be a unified process across all counties.

  • Conduct more subregional studies: Subregional studies create a realistic forecasting model of regional districts and allows developers to know beforehand what improvements need to be made. These studies are initially time consuming and very expensive, but will make the process flow much better. Participants supported additional funding to ensure that these are completed.

  • Explore steps that can be conducted concurrently: The Enhanced Review process allows the applicant to keep moving forward in the County process while the plan is in DelDOT’s hands. NCC and DelDOT agencies can review onsite plans concurrently with offsite plans.

  • Response time deadlines: It would be helpful if there were a timeframe in which DelDOT had to respond; currently, there is no set deadline. Since DelDOT works on a first-come first-serve basis, it is not possible to rush through the system. Each submission is reviewed as if it is a new submission. If comments are not too significant, DelDOT would consider stapling comments to the set of plans.

  • Implement continuing education and qualification requirements: there is a constant need for continuing education. Require continuing education on both sides (agencies and developers) so everyone knows what is expected of them. One participant suggested requiring consultant qualification. He related a successful agency program in which engineering firms had to be certified in order to submit plans.

  • Incentivize submissions: Participants were generally in favor of attaching incentives, financial or otherwise, to plan submissions in order to cut down on the number of submissions. For example, the filing fee of the first submission is free, and the second and third submissions would cost more.

  • Staffing issues cause backlog: Currently there are issues with hiring and retaining sufficient staff. To offset staffing issues, DelDOT uses outsourcing, but this process is expensive and it’s difficult to ensure quality control. DelDOT noted that when the economy is good, its staff gets hired away by the private sector, and they lose qualified staff when they need them the most.

  • Expedited review for job-generating projects: One participant noted that DelDOT should not apply the same review process to residential and commercial projects. He felt it more prudent to give consideration to corporate development projects that bring job opportunities.

DNREC Environmental Review Process:

  • Jurisdictional Report review time is lengthy and arbitrary: the Army Corps of Engineers issues jurisdictional reports for non-tidal wetlands, but the review time varies widely and adds time to the overall permitting process. Reports are not issued speedily and can vary from eight months to 14 months, with no rhyme or reason. NCC has higher protection levels than other counties (Kent and Sussex counties are not subject to this requirement), but NCC cannot approve a plan that violates federal laws.

  • Streamline stormwater review process: System is complex because DNREC makes the code and the county enforces it. The stormwater certification letter is separate from the letter of no objection. DelDOT will consider combining the stormwater approval letter into the letter of no objection.

  • Stormwater planning is highly complex: Conservation design planning causes many design problems and it can take up to one year to make the stormwater regulations work. On any stormwater review, changing one calculation changes the whole plan, which could result in more comments. It was also suggested that the Stormwater Task Force be reinstated.

  • Incentives for redevelopment of environmentally damaged areas: DNREC provides incentives to get landowners to rezone brownfields. DNREC wants to increase outreach to developers in order to inform them of financial incentives and possible funding that will aid in cleaning up the land.

Related Issues:

  • Change timing and focus of Preliminary Land Use Service (PLUS) meetings: PLUS meetings need to be held before planning and before too many details unfold. At PLUS meetings, there are too many technicians and not enough big picture people. PLUS does not provide an opportunity to roll up your sleeves and just talk with people. One participant felt that publicly held PLUS meetings would not be honest or useful.

  • Pre-PLUS meetings would be useful: A less formal setting to discuss regulatory standards and brainstorm solutions would be better; a pre-exploratory conversation about foreseeable obstacles and what the preferred outcome should be. Clients often contact DNREC and DelDOT about feasibility of plan; it is an opportunity to get preliminary endorsement and support of state regulators. One participant expressed that pre-PLUS meetings are more helpful for smaller, less experienced developers, but not larger developers.

  • Extend sunset provision after recordation: developers usually have a valid reason for needing to extend the sunset period of five years; during the current economic crisis, it might make sense to add a year to it. NCC is considering whether the period from recordation to sunset should be extended.

  • Provide extra time to record after exploratory plan review phase: The current plan provides 36 months to record, and developers can get several extensions (up to one year of extensions). Passing the deadline has been an issue in the past, and participants don’t know if the current timeline will provide sufficient time. NCC agrees that if the 36-month period with extra time extensions does become an issue once implemented, then they will review the provision.

  • Eliminate Tri-Annual Rezoning Process: In practice, rezones do not just happen three times per year. Therefore, NCC is considering eliminating the tri-annual limit on rezoning, and accept requests throughout the year.

  • Governor’s office prioritizes economy-boosting projects: The governor’s office gives special priority to projects that provide economic development opportunities. These projects (e.g., Sallie Mae, Astrazeneca, Black Rock) receive expedited review times and are granted permits within a reasonable period of time. Participants are very interested in learning how to apply the procedures from these expedited review processes to more typical development projects.

Recommendations Criteria

Participants were asked to devise overall objectives and broad principles to guide the development of the new guidelines. Participants were informed that the recommendations are not binding on participating state and local agencies, but will be taken seriously. These participants identified the following characteristics.

  • Responsiveness and time certainty;

  • Balance between certainty and flexibility;

  • Measurable against other best practices;

  • Concurrency and coordination;

  • Streamline processes (i.e., reduce multiple bites at the apple);

  • Reduced political influence;

  • Maximized resources;

  • Rationalized, transparent fee structure; and

  • Consistency and seamlessness

Draft Recommendations (See attached Presentation)

The participants, through discussion, identified a set of recommendations to the various agencies. These are listed below and summarized in the attached PowerPoint slides, which were shared with and edit by the group during the dialogue.

Create Ombudsperson Role: The governor should create one or more permanent, full time ombudsperson(s) to troubleshoot across agencies and counties and assist with continuous improvement of permitting processes. One could possibly create an ombudsman role for each county and/or for each agency. Such a position must have enough political support from and influence in the administration.

Create “Early PLUS” Stage: Agencies and developers should meet very early in the permitting process. This stage will capture state agency concerns earlier in the process, ensure that the appropriate level of staff are at the table, and offer the option of expedited comment review and incorporations after first submittals, possibly for a fee. It is essential that the agencies take such meetings seriously and ensure that the appropriate staff are present to identify, raise, and help solve problems. Otherwise, such an effort will become more pro forma and less helpful.

Hold Periodic High-Level Agency Meetings: NCC, DNREC, DelDOT, and Delaware Economic Development Office (DEDO) leaders and managers should meet periodically in a year to review processes, applications, bottlenecks, and operational issues within the permitting process.

Adopt Performance Measures/Feedback Mechanisms: Agencies can distribute customer surveys and staff surveys to pinpoint issues and causes of bottlenecks. Agencies can also implement performance matrices within and across agencies to track timeliness and execution of process. Performance metrics are an important tool to identify problems, focus in on areas of improvement, and to offer data to help realistically shape varied perceptions and opinions.

Provide Continuing Education and Training: Training can be conducted internally within agencies and externally for developers, engineers, and other users. Hold annual training sessions for consultants on common mistakes and how to improve submittals. The agency personnel have a wealth of information on what kinds of applications are successful, why, and which ones are less so. This kind of knowledge, delivered through teaching and training, can help improve applications, provide a feedback loop for both agencies and applicants, and help reduce review times.

Create Adaptable Staffing System: Create system that allows for retention of sufficient amount of skilled staff during good economic times. Create reliable outsourcing pool of consultants to reduce backlog. The state needs to explore ways to handle human resource issues in a more adaptable and flexible manner to account for changing economic conditions.

Create State Task Force: Representatives from each agency already regularly interact. However, the state should form a more formalized process in which agency representatives use hard data to discuss improvements and manage perceptions and expectations in the process. This recommendation would need to be implemented concurrently with adopting consistent and clear performance measures.

Establish Engineering Review Times: Establish clear, consistent, predictable review times. Use SharePoint system to reduce time of initial review to 60 working days. Explore means to reduce time of second and third review.

lncentivize Quality of Submittals: Establish fee-based incentives that require one fee for first and second submissions, and a higher fee for the third submission. Consider introducing pre-qualification program in which consultants voluntarily train for and pass certain requirements. To incentive quality, as an example, award annual prize for best quality plan, as judged by industry peers.

Tailor Fees and Review Times: Use fair, equitable and practical guidelines to tailor review times and fees by complexity of submittal, size and scale of projects, and economic development priorities.

Expedited Rezoning Process: Allow submission of rezoning application by project timeline instead of current tri-annual timeline. Take advantage of City Comprehensive Plan provision that allows NCC to proactively rezone regional areas.

Engage Utility Companies in Planning Process: Improve utility company coordination on timeliness and compatibility with smart growth principles and aesthetics.

Increase Use of Sub-Regional Planning: Use more sub-regional plans to increases certainty of transportation needs and capital planning. The process is resource intensive, so may consider use of recoupment fee from private development sector to supplement finding of sub-regional plans.

Codify Fast-tracked Projects: study aspects of projects such as AstraZeneca and DE Waterfront, which were completed in record time, and incorporate those steps into current permit process or into separate fast-track permit process.

Conclusion and Next Steps:

The meeting conveners adjourned the meeting and expressed appreciation and gratitude for participants’ involvement and feedback. Participants were informed that a meeting summary, capturing the major comments and recommendations developed by this stakeholder group, would be produced and made available for their review and comment.

Participant input, along with statistics and models from comparable counties and county codes, will be used to produce a final report. All participants will have the chance to review the report prior to its completion. The final report will be published by the Delaware Public Policy Institute.


NOTE: The Final Report has now been issued and can be viewed at either: www.dppi.org or www.dscc.com


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