A Permit Process Should Never Take a Year. Here's a Different Way.

When I first spent time professionally in California, I had a hard time believing the stories I was being told about how long it took to obtain a regular construction permit. I was repeatedly told that obtaining these permits took months, often years. This seemed insane and I assumed it was an exaggeration—something that perhaps happened every now and then that became the default narrative for those wanting to criticize local government.

Then I got the same message out of Florida. It was certainly going to take months, and sometimes it might take years, to get something approved. I pushed back: surely these were exceptional cases? The answer was no: these were routine approvals of things clearly allowed within the city. That’s just how long it took to work through all the process.

My skepticism on this was because I had done this kind of work for more than a decade—I ran my own consulting company that processed hundreds of permits a year for cities across the state—and I had never had anything take this long. Never. Not even close. And it would have been wholly unacceptable if it had. Where in any sane world is this a desired process?

I’ve come to learn that Minnesota is one of a few places where this kind of habitual delay is not possible. I’m going to explain why, but I want to step out from my Midwestern inclination toward humility for a moment and do something that comes close to boasting about my culture.

I believe in civic institutions, particularly local government. I think well-functioning local government is critical for the collective action we need to take to build Strong Towns. In my part of the world, it is offensive—some would say immoral—for local government to act in an arbitrary manner, to treat one party by a different set of rules or procedures than another. I’m not suggesting that never happens—we are human, and so we fall short of our ideals—but we tend to enforce an approach that limits excesses in this regard. As I’ve seen how most of the country approaches permitting and regulation, I’m inclined to think we do a pretty good job here in Minnesota.

Here’s why the months and years of permitting experienced in other places will not happen in Minnesota: it’s literally against the law. State statutes prohibit it (here is the text). Let me go through how this works.

When anyone submits an application for anything—zoning review, building permit, variance, subdivision request, etc.—the city has fifteen days to decide whether the application is complete. If there is something missing, they must let the applicant know in writing what that is. This has forced a level of efficiency on local governments who frequently create checklists and other aids for applicants and reviewers because, if no letter is sent within fifteen days, the application is deemed complete.

Once there is a completed application, the local government has sixty days to render a decision. That’s sixty days for all staff reviews, committee hearings, public comment and any other part of the approval process. And the local government had better be serious about this because—and here I quote directly from state statute:

Failure of an agency to deny a request within 60 days is approval of the request.

You read that correctly: if the local government fails to reach a decision within sixty days, the application is automatically approved. There have been many cases where a city has denied something on Day 61 only to have a court overturn that decision on summary judgement. We take this very seriously.

I’m going to point out one more provision of statute here in regards to denials so it is clear that, again, these can’t be arbitrary:

If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

In the business we call these “findings,” and courts use them to determine whether or not a city has acted arbitrarily. Local governments are given a lot of deference, but they have to abide by their own codes. If something meets the local code, and yet the city denies it anyway because they don’t want it for whatever reason, my experience is that the city will lose that one. And they should.

If sixty days seems like a short period of time, there is a provision for a local government to extend that for another sixty days (120 days total) but, again, this can’t be done arbitrarily. There must be a reason and that reason must be put in writing (so a judge can review it if it comes to that). Again, from statute:

The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.

That’s it. In Minnesota, the longest an application can take from submission to a final decision of some sort is 120 days. All decisions are appealable to district court, which will render a decision within a year or so (often earlier). One additional mechanism that keeps cities honest when it comes to this approach is that most cities here are insured by the same organization. And that insurer has a way of working with cities (read: raising their insurance rates) who don’t adhere to this process or don’t make defensible decisions.

I’ve run this by people who work in local government in California, Florida, and elsewhere, and it often freaks them out. How can we make a decision in sixty days? I find this reaction baffling.

Why would you not want to make a decision within sixty days? What benefit is there to the community for having a review process that takes longer than that? What are you doing that takes so long? Does it add enough value to justify the harm of such a long and arbitrary process?

Minnesota is far from perfect on these things, but this process has created some good habits that I struggle to find in other places:

First, the 60-day time limit means we must have codes and processes that are reasonably coherent; otherwise we’ll struggle to meet the time limit. There is no forwarding things to thirty different departments for their comment whenever they get to it. It won’t work that way, so we don’t allow it to. If we don’t want to be run over, we must put practices in place to be competent at what we do.

The process also forces us to make decisions that are reasonably defensible. The act of having to write down why a decision has been made—and reference the exact code in doing so—forces a discipline on the entire process that reduces arbitrary decisions. None of this is to suggest that Minnesota cities never make a bad call—of course they do—but simply that there are good mechanisms in place to correct them and to encourage learning from mistakes.

Finally, this process is how we show respect to each other. If we want people to invest in our communities, we must be clear about what we want and have a discernible and reliable process to accomplish that. If we want people to have faith in our local government, we must be transparent in our actions and predictable in our outcomes. To me, anything else seems like a failure.

I’ve been pondering bills like SB 50 in California—another set of centralized directives on what local government can and can’t approve. (SB 50 would override local zoning for certain types of housing near transit, requiring automatic approval of those homes.) SB 50 reflects a trend in several states—in response to the dysfunction of local zoning and approval processes—toward legislation that would have the states act as the equivalent of helicopter parents toward unruly cities, directly taking over the authority to make decisions that have always been local ones. It seems more and more like we need a better alternative.

Instead, a good start would be to require our local governments to develop some discipline and reliability in their permitting approach. These are practices that demonstrate respect for both our civic institutions and the people they are supposed to serve. Without this base level of respect, all the other tinkering we do with codes and processes and requirements seems kind of silly.

(Top image by Daniel X. O'Neil.)