Flattening the Land Use Approvals Curve In Wake of Coronavirus: Update

Posted In Land Use

Corona Virus Land UseLast Friday, March 13, 2020, I warned those seeking land use approvals or building permits for a new or existing healthcare use in New Castle County, Delaware that the Department of Land Use has imposed new guidelines on doing business with the department in the wake of the coronavirus.  Among other measures, Board of Adjustment and Planning Board hearings are now suspended until April 10, 2020.  As of late Friday, the New Castle County Council, which is the final stop for approving major land development plans and rezoning ordinances, cancelled the Land Use Committee meeting for March 17, 2020.  As of now, a Council meeting is still scheduled for March 31, 2020. As potential disruptions to real estate project timelines and ability to move forward pile up, it’s time to pause and consider how to make these and future barriers less impactful to a project. It may not be possible to avoid all impact, but like the spread of the Coronavirus itself, it may be possible to ‘flatten the curve’ so that the delays do not spike suddenly into an irreversible problem for a project already, or soon to be, underway.

1. Healthcare facilities nearing the closeout of any project which will add beds or other capacity should ask regulators for priority consideration. Discuss the possibility of applying for a temporary certificate of occupancy if applicable with your legal and construction team. Reporting on the outbreak reveals a dangerous lack of beds for the number of folks who may need them, so let’s roll and fix that if we can.

2. New Castle County allows expedited review for projects by paying enhanced fees. If other jurisdictions do not have such a process, raise adopting the practice administratively with regulators, at least for healthcare facilities.

3. Consider trimming down an application so that it does not require quasi-judicial or legislative relief, thereby obviating the need for hearings. Go back in for the whole banana when things get back to normal.

4. Take advantage of all the ways to do business with government agencies remotely. The Department of Land Use outlined many in their guidelines.

5. Don’t despair if a new project has been under consideration, but no submissions have been made yet. With attorneys and design professionals working remotely and unable to attend the normal round of pre-application, community and internal meetings, consider online meetings to finalize design concepts and get a jump on preparing applications. As long as you don’t mind some barking dogs and playing kids in the background.

6. This is also a good time to open a discussion with elected officials and stakeholders about reimagining public input into the land use process. Cramming a lot of people into a small conference room toward the end of the process for a Board of Adjustment hearing, for example, has been a pretty outdated model for some time. It disadvantages those with mobility and childcare issues already, and now seems like a positive danger. Surely there are more efficient ways to engage the public and process input.

7. On other regulatory fronts, those with prior healthcare experience who may be able to help if expedited relicensing or temporary licensing became available, let’s talk. Our Morris James LLP Regulatory and Legislative team would like to facilitate that conversation with regulators to see if we can get more healthcare workers to the front lines fast.

Morris James LLP has the Real Estate, Land Use, Government Relations and Healthcare expertise to guide your healthcare project through this crisis. In the meantime, stay safe and healthy!