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State Board of Licensure for Architects, Professional Engineers and Professional Land Surveyors: Development and Building Review Process Guidelines

Background

The State Board of Licensure for Architects, Professional Engineers and Professional Land Surveyors created a task force in response to the friction created between licensed engineers and surveyors, and government, when governments question professional judgment in the course of exercising government responsibility to properly review work in order to protect the health, safety, and welfare of the public. The task force consists of both public and private sector representatives.

Engineering and land surveying are both classified as professions and regulated by Colorado law. These laws define the qualifications and procedures necessary to obtain the state issued license to practice these professions, define the services that may only be performed by these licensed professionals, and create a code of practice that governs the activities of these professionals in the performance of their duties.

The task force discussed various issues and, in response, developed these guidelines to assist local government and private sector representatives in developing good management and better understanding of the development and building review processes in order to facilitate timely review procedures and to minimize and resolve differences between a reviewing entity and an applicant.

The task force views these guidelines as educational and advisory, rather than mandatory, in recognition of the prerogative and necessity for each local government to develop and manage procedures appropriate to that particular entity. Task force members have committed to a process to educate public and private representatives about the value of having well-defined development and building review processes and the merits of the components of these guidelines.

Development and Building Review Processes

Governmental entities have not only the authority to review subdivision plats, surveys, and engineering plans as part of a development or building application process, but may also have the responsibility to do so under applicable laws (applicable laws will vary among local governments). The review process must consider the community as a whole and evaluate how an individual application meshes with that total vision. Recognizing that delays in a review process can create costs to the owner, timelines of review and approvals are greatly enhanced by the quality and thoroughness of application materials submitted.

While the vested rights legislation provides expectations of expedited processes by virtue of reducing the element of changing requirements in a development application process, public entities will need to be even more vigilant about having complete applications before any formal review procedures are commenced and any approvals are given.

Payment for surveying, engineering, or other development or building application work is a private contractual matter and should not be used as leverage for demanding prompt review or partial approval of applications. With the adoption of 1999 vested rights legislation it is important to address the issue of timely payment through contractual arrangements between an applicant's representatives and an owner.

Applicants live with a design through the life of a project and any warranty periods, but the public sector—especially when it contracts for or accepts privately built infrastructure—lives with the project forever. The task force believes it is good business practice and of benefit to both the applicant and the public entity to have clearly defined review processes and it is the intent of these guidelines to assist in the development of such processes.

Review Framework

The general framework for review processes should be adopted in carefully thought-out policies established in a public forum by the elected officials. Criteria for the administration of the policies should be clearly established to assure consistency of requirements and their application, and to minimize interpretation by both the applicant and the reviewer.

Review comments should be consistent throughout resubmittals, to the extent possible. A review checklist should be developed and be as detailed as possible to assist in complete data being submitted, to reduce personal interpretation by both the applicant and the reviewer of what data is required, and to minimize the need to request additional or expanded data.

Applicants should submit complete applications as a single package rather than in a piecemeal fashion, and should expressly identify at the outset which information is omitted and on what basis. The licensed professional should remind its clients that an incomplete submittal might delay the review process.

Requests for variances or modifications of standards should be identified by both parties as early in the application process as possible. Applicants must realize that the authority to grant such requests typically does not rest with the review staff. To the extent possible, verifiable, normally accepted standards of practice should be used for reviewing and checking technical data and the use of subjective standards or judgment should be avoided.

The applicant's representatives should familiarize themselves with local criteria, recognizing each entity's prerogative and need to adopt criteria suitable to its own situation. Outside expertise may be helpful in the development of policies and administrative procedures depending on the expertise, availability, and time of in-house staff. Modifications over time to the policies and administrative procedures of a reviewing agency are both realistic and appropriate.

Qualifications of a Reviewer

Reviews are often a combination of technical and administrative matters, having qualified reviewers is important. Qualified can mean trained in the technical fields, trained through experience, or a combination of both. In some situations, supplementing in-house expertise with outside consultants may be helpful.

A public entity may want to have a policy that allows the public entity to hire a consultant early in the review process, at the applicant's expense, and establish a process for how and when the cost is paid.

The practice of engineering and land surveying requires a significant amount of training, experience and expertise. Therefore, it is recommended that a reviewer should exercise discretion in questioning professional judgment of licensed professionals. The applicant's representatives should recognize that the reviewer might question a licensed professional's work, and that these inquiries are beneficial to the identification and resolution of issues satisfactory to the entity's public responsibilities.

Licensed professionals should acknowledge that even two licensed professionals may have different technical assessments, so there can be legitimate room for deviation from a licensed professional's original proposal.

Entity Requests for Modifications to, or Additional Data for, an Application

It is beneficial to both the applicant and the reviewer to know as soon as possible after submittal whether an application is complete. Additional or expanded data is often needed from an applicant when it is unclear how responsive to criteria certain elements of an application are. Any authority for a reviewer to request additional or expanded data beyond the scope of the originally required data should be PRE-established as a matter of standard procedure.

A policy and procedure regarding how the deficient application will be handled is useful. Issues like the following should be clear:

  • Does the reviewer have the option of using his or her best judgment in this matter?
  • Does the reviewer review all of the submitted data completely and provide documentation as to what is unclear or incomplete, and subsequently review only that additional information?
  • Does the reviewer review until missing data is identified and then set aside the application?

Inflexible vs. Flexible Requirements

Inflexible requirements make decision-making easier but don\'t offer the ability to use good professional judgment. Further, inflexible requirements often do not allow either party to address localized, on-site concerns. Limiting flexibility in application requirements reduces the possibility of disputes, but also reduces the ability to use good judgment in accepting reasonable alternatives or minor variations of the application requirements.

The communication skills of a reviewer and an applicant are important, particularly in light of non-licensed reviewers commenting on the work product from a licensed professional and the resulting perception of a challenge to professional judgment. Professionalism in handling differences goes a long way to negotiating solutions and minimizing conflict.

Some flexibility from the strictest application of the requirements can benefit both the applicant and the local government. The parameters of flexibility, what exceptions a reviewer can make, and what requested exceptions need to be handled as variances by the decision-making body should be defined as clearly as possible.

To the extent some flexibility is allowed, the applicant should provide the rationale for an exception. The entity should document its decision and rationale for granting or denying all or part of the request. It should be recognized that exceptions or modifications may be, and variances are, precedent-setting and should, therefore, be carefully considered.

Process for Dispute Resolution

With development and building review processes comes the reality that there will be differences of opinions as to how to administer policies or what is meant by a requirement, thus creating the need for a dispute resolution process. Having a defined dispute resolution process and process for appeal is good management because it assists both an applicant and an entity in knowing how differences are to be handled.

Reviewing agencies should be cognizant of the inherent conflicts of trying to affect a licensed professional's exercise of independent professional judgment and the legislative restrictions under which they are required to work. Similarly, the applicant should be respectful of the public entity's responsibilities in review processes.

An applicant should be cognizant that a licensed professional's work doesn't automatically mean that his or her proposal is the only or best solution for a particular local circumstance.

An applicant should recognize that many disputes cannot be resolved prior to, or outside of, the public hearing process.If application guidelines are clear and complete and the contested elements of an application are discussed in a respectful manner, disputes should be minimized.

There are a wide variety of dispute resolution processes and an entity's municipal attorney should always be consulted when developing one. There is no one perfect dispute resolution model and the process for resolution will vary among communities and be influenced by the degree of conflict.

Things to consider:

  • Initial recourse is consultation between the applicant and the reviewers who took exception to the elements of the application
  • Appeal to the manager of that reviewer or top management of the entity
  • Appeal from management level to city council or board of trustees for policy issues
  • Appeal to a third party professional
  • Legal appeals