Compliance Complexity

By Tony Whitaker

Every successful land development project must satisfy regulatory requirements to obtain necessary permits for construction and operation. Navigating the complex regulatory environment is a critical part of effective project management. If not executed skillfully, regulatory compliance can be a source of unnecessary risk, cost, and frustration. To reduce the potential for negative outcomes, Civil Consultants recommends that a customized regulatory analysis be performed for all potential land development projects.

Regulations exist to guide land use decisions, to promote public safety and welfare, to set minimum performance and quality standards, and to protect the built and natural environments. These regulations take the form of statutes, laws, codes, administrative rules, policies, standards, guidelines, and interpretations. The resulting regulatory framework is enormously complex. This highly regulated environment exposes land development projects to significant costs and risks, in several ways.

First, regulations often require a project to include features that wouldn’t otherwise be included; or may prevent a project from having characteristics that may be desired. These requirements and prohibitions usually cost money, opportunity, or both. It is imperative that this information be known or discovered early in a project’s life, and appropriately incorporated into project design, budgeting, and marketing.

Secondly, regulations can vary widely, depending on the state, county, municipality, zoning district, water district, DOT division, fire district, or other distinction based on political, bureaucratic, or natural boundaries. For example, requirements for stormwater management can have widely varying impacts on land development projects. These requirements depend on the project location within watersheds and political boundaries, and the resulting impacts range from virtually nothing to being severely limiting or even prohibitive. In some local jurisdictions that we regularly work in, relatively small improvements to existing facilities can trigger large-scale stormwater management requirements which are retroactively applied to the larger site. In these cases, the “grandfathered” status that is typically assumed for existing development is effectively stripped away.

We recently completed a project in a local county government jurisdiction which had essentially no stormwater management requirements. But there was political pressure to request annexation of the property into the adjacent city jurisdiction, which has rigorous stormwater requirements. On behalf of the project, we advocated for the annexation procedure to be delayed, so that the initial phase of construction could be done under County jurisdiction with no stormwater management pond, allowing the next phase of the project to incur the associated cost.

Thirdly, regulatory requirements frequently change, and may be interpreted in unpredictable ways or applied inconsistently. Some regulations are purposefully structured so they can be administered in a flexible or subjective manner. In our State, the Fire Code prescribes detailed requirements for fire protection and emergency access, but also provides local Fire Code Officials a significant amount of individual discretion to accommodate local preferences or specific project characteristics. In addition, this code establishes supplemental requirements in the form of Appendices, which are only applicable within a locality if the local governing body has specifically adopted them. In other words, simply reading the Fire Code will generally not provide a designer with sufficient knowledge to comply with applicable fire protection and emergency services requirements for a land development project. The appropriate local officials must be consulted to review project-specific and site-specific data before project criteria can be fully determined. The titles and organizational  of these officials will vary from place to place, so inquiries must first be made to understand which department or person is responsible for enforcing various aspects of the regulations. The office of a local Fire Code Official is not always associated with the local Fire Department, often being organized under another agency such as a Building Inspections Department.

We frequently work in local jurisdictions where Public Works Department standards for fire protection can greatly exceed both the stipulated Fire Code requirements and requirements of the designated Fire Code Official. We also work regularly in a town which has an ordinance requiring automatic fire protection sprinkler systems for all new construction over a designated square footage, regardless of Fire Code requirements, building type, or occupancy class. This unusual ordinance was established in part to avoid excessive use of water for fire-fighting purposes, exemplifying the non-intuitive rationale that lies behind some regulations. In our experience, clients and building designers do not always anticipate this kind of deviation from prevailing standards.

Lastly, regulations are conceived, written, and administered by humans. They are therefore not perfectly crafted, not perfectly understood, and not perfectly applied. We frequently encounter situations where projects are asked to comply with improper standards. As land development consultants, we know how important it is to be intimately familiar with the regulatory environment, and to effectively advocate for project interests when needed. For all of these reasons, we feel that a proper regulatory assessment should not only include a thorough review and understanding of published requirements, but also strategic and personal engagement with appropriate regulatory agents.

Successful land development projects require skilled and diligent work to assure regulatory compliance. A customized regulatory analysis should be performed early in the project planning process. Civil Consultants provides these services for our clients, and maintains a strong focus on regulatory compliance throughout project design and construction.