Planopedia

By-right development, also referred to as as-of-right development in some parts of the United States, is the easiest path to qualify for development under the zoning and building codes of local jurisdictions. By-right approvals are also described as ministerial—a common legal term that also describes a lack of discretionary approval. 

A development approval process considers whether or not to grant permission to proceed with a proposed development. The permission to proceed, the goal for the development process, is called an entitlement. By conforming to zoning and building codes, by-right development is not required to undertake a discretionary approval process to achieve entitlement. A discretionary approval process can vary according to local, regional, or state law, but it usually involves a review by a zoning board or elected officials. To be clear, a development qualified for by-right approval must still acquire the necessary permits to proceed, but an entitlement is much more easily acquired by-right than through a discretionary approval process burdened with legal expenses and political uncertainty.

Jurisdictions at every level of government grant discretionary approval power to various authorities, depending on the jurisdiction (e.g., zoning administrators, zoning review boards, and city councils), to approve exceptions (e.g., variances, amendments, special exceptions, or conditional uses) for projects that do not conform to existing zoning. Some zoning codes or related building and development regulations require a discretionary approval process whenever a project is of a certain size or land use type—even if the development otherwise conforms to the existing zoning code. In another version of the approval process distinguished from by-right approval, some U.S. cities and counties also require developments to face a voter referendum (a process sometimes referred to as ballot box planning). In some states, local discretionary approval will trigger additional environmental reviews and regulatory oversight.

A Cornerstone of Planning (and Planning Controversy)

The question of whether developments can be approved by-right or whether they require discretionary approval evokes essential truths about the practice of  planning and zoning in the United States. In some neighborhoods, and in entire cities and counties, zoning amendments and variances are more common than by-right developments. The use of zoning amendments or other special accommodations is so common that the practice has its own pejorative term: "spot zoning." Almost every growing city in the United States is faced with a steady stream of developments that require a zoning variance or amendment to achieve entitlement. 

According to pro-development advocates and industry lobbyists, the lack of by-right development indicates a disconnect between land use regulations and demand in the real estate market. Some developers claim that the time and expense of a discretionary approval process is prohibitive to many forms of development that are otherwise desired by the market. By-right developments are indisputably less expensive than developments requiring discretionary approval. More evidence of the disconnect between current zoning and demand in the development market is that in many U.S. cities, the most treasured historic buildings, both residential and commercial, are no longer legal under current zoning. Additionally, some advocates claim that allowing more development by-right can thus be considered a tool for affordable housing development. 

It's also true that the idea of by-right, or as-of-right, development is a desired outcome of zoning—even the raison d'etre for zoning. The benefit of by-right development for residents and property owners is a predictability and certainty about what kinds of development to expect nearby in the future. The failure of most zoning codes to limit approvals to by-right developments explains the existence of the term "spot zoning" described above.

Many jurisdictions are responding to these criticisms by rewriting zoning codes to ensure that more developments are approved and permitted by-right. However, many of these reforms imply a pro-development politics—either upzoning to allow apartment buildings and rezoning to allow mixed-use and commercial developments in more areas. Meanwhile, neighborhood groups resist zoning reform, wielding discretional approval as a powerful legal tool for obstructing new development.