Large Scale Developments
Large-scale developments likely to have effects outside the area in which they are located are often referred to as "Developments of Regional Impact" (DRIs). In many jurisdictions, DRI review is intended to guard against increased pollution, school overcrowding, traffic and other problems associated with large developments.
Large-scale developments likely to have effects outside the area in which they are located are often referred to as “Developments of Regional Impact” (DRIs). As a result of a trend towards regional planning, many state and local governments require DRI review “to improve communication among governments on large scale developments and to provide a means of identifying and assessing potential impacts.”1 More specifically, in many jurisdictions, DRI review is intended to guard against increased pollution, school overcrowding, traffic and other problems associated with large developments.
In Georgia, for example, the following are considered DRIs:
- residential developments containing more than 400 lots or units;
- office developments containing more than 400,000 gross square feet of space; and
- “mixed use” developments containing more than 400,000 total gross square feet of space or covering more than 120 acres.2
Last year, the Georgia Regional Transportation Authority (GRTA) developed regulations for DRI review in Georgia. These regulations took effect January 14, 2002. The interpretation and application of these new regulations continue to raise questions for those affected by the DRI review process, including developers, builders, lenders, lawyers and others.
This article addresses the specific rules in Georgia, especially in counties which do not comply with federal clean air requirements, as a case study of the complex and demanding DRI review process. Other jurisdictions follow similar procedures, and the agency responsible for DRI review in that county or city should be contacted for a complete list of their rules and regulations.3
What Should I Do if I Think My Development Might Be a DRI?
Determining whether a development qualifies as a DRI is generally left to local administrative agencies. Once an Applicant (industry, business or developer) requests official action from a local government, “such as, but not limited to, a request for rezoning, variance, [land disturbance or building] permit, hookup to a water or sewer system, [and] master or site plan approval (including subdivision),”4 the formal DRI review process begins. Applicants generally have little, if any, control over the process since the local governments are required to contact the respective state agencies responsible for DRI review once they receive an application. The municipal or county entity will determine if the development meets certain objective thresholds based upon the size, location or nature of the development. If a development meets the thresholds, then DRI review is mandatory.
In order to assess adequately the amount of time and money a DRI review will require, developers should contact the state agencies responsible for DRI review before submitting any type of application to a county or city. While such pre-application is not required, many of the agencies involved in the DRI review process recommend that developers contact them as soon as they know their development likely will have a regional impact. As a practical matter, it is critical to the timing of any transaction to know whether a development requires DRI review. The review may take from four to eight months to complete and some jurisdictions prohibit local governments from taking any action prior to DRI approval. Therefore, developments may be delayed as much as one year from the time a permit or similar request is submitted to the local government.
Additionally, DRI review almost always results in the imposition of certain conditions on a development, such as curb cuts, specific road improvements, pedestrian interconnectivity, etc. A prudent developer should know the likely conditions of DRI approval sufficiently early in the planning process to avoid financial surprises during actual development. If a developer files an application with a local government without including conditions of DRI review approval, he may be forced to amend his application or at least face a deferred final action by the local government. For example, as a condition of DRI approval, the GRTA has required developers to commit to certain curb cuts, road improvements and pedestrian walkways, many of which were not included in the site plans submitted to the local government. As a result, developers have been forced to amend applications after the local government began formally reviewing their plans. The requested rezoning, development permit or variance often is deferred an entire zoning cycle or placed at the bottom of the list in the development department as a result of such changes. Therefore, developers should meet with state agencies early in the process to avoid expensive revisions to site plans or delays which could jeopardize the funding of a development.
What Happens if My Development Is a Development of Regional Impact?
Once a local government submits an application to the state agencies responsible for DRI review and the state confirms the existence of the DRI, the formal review process begins. From this point forward, the developer, the local government and the various state agencies are on a strict timeline for completion of their review. The following chronology is a synopsis of the DRI review process in Georgia:
- The Applicant schedules a “methodology meeting” with the GRTA and the regional development center (RDC) assigned to the particular development to discuss the data which will be needed to review the development and to decide upon the format(s) in which these agencies want to see that data. DRI review virtually always requires the Applicant to submit a highly technical report which includes a myriad of traffic and demographic data. The Applicant should hire a qualified traffic engineer and a statistician, at a minimum, to prepare the technical report and attend the “methodology meeting.” The Applicant should also plan to attend the methodology meeting along with any attorneys, engineers, planners or other consultants who may have information regarding the project or who will be involved with its approval.
- The state agencies responsible for DRI review next hold a joint pre-review conference with: (a) various state administrative agencies who may have input regarding the potential effects of the development; (b) the local government that received the request for official action from the Applicant; and (c) the Applicant. The purpose of the meeting is to determine what data has already been provided and what additional information is needed to start the review. That information includes anticipated traffic generation, environmental impacts, employment and population information, tax consequences and other sophisticated projections related to the effects of the development.
- Once the state agencies receive all of the information requested at the pre-review meeting, the local government submits a “formal” request to begin the DRI review process. At this point, the state agencies have 30 to 45 days to review the development, depending upon the DRI review regulations for the particular agency.
- The state agencies notify potentially affected parties (Georgia Departments of Transportation, Natural Resources, and Community Affairs in all cases) of the review and request comments on the proposed development within 10 days. A staff member from one of Georgia’s RDCs also reviews the proposed development, as does a staff member from the GRTA.
- If problems with the development are noted by either agency, then they will try to resolve them by drafting conditions to improve the impact of the project. If no significant problems are noted or if the problems are resolved by way of appropriate conditions, the RDC’s director is then authorized to return a finding that the proposed development is “in the best interest of the State,” which signifies that the local government may take the requested action. The GRTA also will make its own final determination, independent of the RDC’s findings, as to whether the development is in the best interest of the state and whether to approve or deny the expenditure of federal or state transportation funds related to the proposed development.5 It is only after the GRTA’s final determination that the county or city may take action on the development request.
Why Can’t I Just File My Application With the Local Government and Skip This Process?
The simple answer is that state and local laws in many jurisdictions require DRI review. In Georgia, if the GRTA finds that a development is not in the best interest of the state and a local government approves the development despite the GRTA’s recommendation,6 The GRTA is authorized under state law to withhold state and federal funding for land and transportation services. The practical effect of this rule is that most local governments simply will not approve a development over a contrary recommendation of the GRTA or any similar agency which has such authority.
In contrast, some agencies do not have the power to require the local government to adopt their recommendation. Local governments are encouraged to comply with DRI review recommendations and condition their approval on specific concerns outlined by the agencies. However, in some jurisdictions there are no direct penalties either to the local government or the developer for failure to comply with the recommendations.
Finally, depending upon the regulations of your jurisdiction, it may be possible to “opt out” of the review process or proceed through an abbreviated process (“expedited review”). The specific criteria for either opting out or expedited review, however, are quite complicated and require an extensive amount of time and study to justify their use. Jurisdictions generally only offer these exceptions to DRI review when an Applicant makes an impressive showing, via highly technical data, that the development is likely to meet very specific goals and objectives for regional mobility and pollution reduction. Again, the local agencies responsible for DRI review should be contacted for a full list of the rules and regulations for expedited review.7
How Long Will This Review Process Take?
By regulation, the maximum time allowed for review of a DRI by one of Georgia’s RDCs is 45 days, and the GRTA must complete its review not more than 30 days after the RDC makes its final determination. However, experience confirms that the process is more likely to take at least four to six months. In order to ensure that the GRTA meets the timelines outlined in its regulations, it is critical to attend the pre-application and methodology meetings referenced earlier to discuss the proposed scope of review.
Multiple methodology meetings often occur over the course of several months and each meeting usually takes between three and four hours. Developers must also allow their experts ample time to collect the data required for the technical report. Finally, developers must go through the approval process, as dictated by state and local law, to secure the approval requested (rezoning, development permit, variance, etc.). This post-DRI process also is likely to take at least an additional three to four months, depending on the jurisdiction.
How Much Will the Entire Process Cost?
It depends. While there is no fee to file the Initial DRI Information Form, developers will need to spend substantial sums of money to provide information for the DRI review process. The bulk of the expense relates to traffic engineers, statisticians experienced in analyzing demographics of an area and air quality experts.8 These fees may range from $10,000 to $80,000 per DRI. The GRTA has developed a highly technical report, the Transportation and Air Quality Analysis (TAQA), that developers need to submit if their development qualifies for complete review. The TAQA includes a detailed report summarizing trip generations produced by the development, air quality analysis and other technical data. Developers undoubtedly will need to hire outside consulting firms to produce the TAQA and the price will depend upon a number of factors including location of the development, availability of qualified analysts to produce the reports and the availability of existing data.
In short, just when you thought it was safe to pull your permit, the DRI process has reared its head to delay its issuance considerably. Careful advanced planning is key to keeping the development on schedule and on budget.
- www.atlantaregional.com/qualitygrowth/reviews/dri.htm. ↩
- Developers should consult the state or local agency within their jurisdiction responsible for DRI review to determine the thresholds for their particular development. It also should be noted that this list is by no means exhaustive; a multitude of large-scale proposed uses may trigger the DRI process. ↩
- See Florida Department of Community Affairs Regulations, Chapter 28-24; Florida Statute §380.06; see also www.ecfrpc.org/drisummary.html for a discussion of Florida’s DRI regulations. ↩
- Georgia Department of Community Affairs Regulation 110-12-3-.04(1). ↩
- See Endnote 1. ↩
- A local government can overturn the GRTA’s denial if three-fourths of the local governing body vote to overrule the GRTA’s decision to disallow funding. However, it is unlikely that a local government will provide such a ruling. ↩
- See Policies and Procedures for Georgia Regional Transportation Authority DRI Review, §3-102. ↩
- Developers should consult with the local agency responsible for DRI review in their region to determine if there is any additional data which may require additional experts and fees. ↩