Drafting Real Estate Documents With Project Permitting in Mind

Originally published by the Daily Journal of Commerce on April 19, 2024.

In the dynamic world of real estate development, the orchestration of real property documents (such as leases, easements, or purchase agreements that are collectively referred to here as “site control documents”) plays a pivotal role in the pursuit of project permitting. Careful drafting is critical; the language of these documents must be composed with precision and foresight to best situate the developer for eventual project approvals. To this end, developers should think ahead (and phone a friend) to draft real estate documents that not only serve their present needs but also anticipate their future engagement with the relevant permitting authorities.

Consistency with local law

A single site control document does not live in isolation; it’s part of an ensemble. Such documents should not only be internally consistent but also harmonize with one another. This consistency is particularly critical when multiple documents are operative at the same time during the development process, each influencing project permitting in its own way. Understanding and adhering to local zoning and land use regulations is critical. It is critical to be alert and know when local regulators may impose impediments to development, such as moratoria and unanticipated changes to land use ordinances. Ensure that the site control document terms comport with these regulations (e.g., include required disclosures, provide record notice of real property rights, and align provisions with permitting timelines), as discrepancies can cause delays or even derail the permitting process.

Landowner assurances and cooperation

Especially where discretionary permits are involved, it can be difficult if not impossible to accurately foresee everything a developer will need from the landowner during the permitting process. Thus, it is generally advisable to include a general, open-ended provision in a lease whereby the landowner covenants to cooperate with project development. This provision should be forward-thinking, incorporating clauses that oblige consistent and enduring public support in obtaining future permits, approvals, and entitlements to meet unexpected challenges. In addition, the drafter should consider prescribing the specific actions to satisfy permitting authority requirements.

For example, a lease could require the landowner to (i) provide estoppel certificates within a certain time period, (ii) sign certain permit applications and proactively engage with permitting authorities, (iii) show up at and actively participate in land use permitting hearings in support of the project and related infrastructure (e.g., a transmission line serving a solar energy development), (iv) not oppose the project, (v) solicit support for the project from neighboring landowners, (vi) appoint the developer as the landowner’s agent or attorney in fact for certain purposes, (vii) obtain non-disturbance agreements or SNDAs from the landowner’s lenders or mineral rights holders, (viii) provide maps, reports, and prior permit applications held by landowner, (ix) cooperate with the creation of separate tax parcels and/or legal parcel subdivisions, and (x) consent to changes in land use classifications associated with anticipated site alterations and facility expansions.

Site access

The relevant county or municipality may require site access for inspections associated with their permitting process. Especially in rural areas, it is also possible that Native Americans have cultural interests in the project site and will seek continued access rights on private lands. Site access is also commonly needed with respect to wildlife or ecological surveys. The drafter of site control documents should plan for such site access needs, perhaps by granting access licenses as part of a site lease or guaranteeing landowner cooperation in granting future access rights to certain interested parties. Depending on the context, it may be advisable to include a specific landowner covenant to cooperate with the developer, cultural resource consultants, and tribes to secure ongoing site access for citizens of the relevant tribe(s) for gathering traditional foods or other cultural practices. The drafter should also carefully consider how such access rights interact with the indemnification and insurance provisions of the site control document.

Timelines and timeliness

In the realm of permitting, reactive measures are often too little, too late. Proactive drafting anticipates two steps ahead — it aligns with the strategic timeline of the project and dovetails with stakeholders’ expectations. Include in the documents conditional clauses that trigger actions once certain milestones are met, ensuring that no time is lost and that every participant knows their role well in advance. Drafters should also consider how payment obligations, due diligence periods, options, and other aspects of an agreement timeline can be adjusted to account for permitting delays. In addition, it is generally advisable to include a “time is of the essence” clause to establish clear, enforceable deadlines for steps that require cooperation from either party, such as submitting permit applications or responding to authority inquiries. Finally, predicting a venture’s outcome is uncertain; therefore, providing clear termination and exit clauses in site control agreements ensures both parties know what to expect should the project not proceed as planned.

Disputes

Even with impeccable drafting, disputes may arise. A well-prepared document accounts for such problems, outlining clear dispute resolution procedures that can steer parties away from litigation and toward management negotiations and then mediation or arbitration. It is not just the prevention of disputes, but also the efficient resolution that makes a real estate document robust.

Engagement with experts

While a developer may be well-versed in the substance of its projects, collaboration with legal experts in drafting documents can bring added depth and nuance. In addition, working with wildlife, environmental, and permitting specialists can fine-tune site control document language to resonate with the intended purpose and safeguard against misinterpretation or legal challenges.

In shaping the course for a smooth permitting process, developers should approach document drafting with an eye toward future challenges, both anticipated and unexpected. By drafting with clarity, specificity, foresight, and strategic collaboration, site control documents can create a structure that supports the project through the permitting process with minimal resistance.