By Right. This Might Not Be Right?!

(Source: Flickr/Dean Terry.)

"Not in my backyard!" someone yells from a crowd. Angry residents spend hours complaining and share their fears about the latest development in their community. At the same time, the team proposing the development is completely perplexed with the hate their investment is generating.

I am sure many of you have witnessed this, or been a participant in one of these two perspectives. I am always shocked by the violent opposition to development projects that are proposed "by right."

I use the term “by right” very broadly, and while it may be defined in greater depth in your community, this technical and complex term has a pretty simple definition: by right uses and development types are permitted on a particular piece of land under the existing local regulations. These regulations include adopted plans, comprehensive plan policies, zoning, or other development standards. Development “by right” is intended to guarantee an easy approval, because the development is following all of the approved regulations and expectations of the community. The idea is that a community has established acceptable standards for development that, if applied for, will be approved. Through policy and regulations, "by right" projects that meet all the rules should have a smooth and easy approval process.

If you have spent any time within the development world, you have seen the “by right” development process firsthand. If you still do not know what I’m talking about, I encourage you to attend a local planning commission meeting, or google "planning review.” Get ready to fall down a crazy and complex rabbit hole. 

Here is a simple example: In almost every community in the country, the zoning code states that residential zoning districts allow for two-story homes. This is a “by right” allowance, because you are allowed to build two stories. I worked in a community with this allowance, however, all the homes built on the street were constructed as one-story homes. When the plans were submitted for the last empty lot on the street, the owners wanted to build a two-story house. This idea that the last home would be different than anything else on the street started a huge battle and an angry crowd appeared at the first available meeting of elected officials.

The neighbors had an expectation, but not an understanding of the regulations. Two-story homes were a right that the residents did not know they had. On paper, what should be a simple approval became emotional and personal to the existing neighbors. The result after weeks of protest was not an empty house, but a vacant lot.

During my travels along the Gulf Coast of Florida, I came across my favorite example of a "by right" land use that was a lot more spirited. The owners of a beach house called their zoning department to explore the regulations for renovating their home. During the building inquiry, the county staff asked if they also wanted to renew the expired beer and wine license for the property.

These were the second owners of this property and had no idea that the previous property owner had been issued a beer and wine license for the property. What started as a simple inquiry about their property resulted in a $100 permit renewal and the start of a great sunset beach restaurant and bar. The Mucky Duck is definitely worth the trip, and you do not have to be a zoning geek to enjoy the pilgrimage.

The problem with "by right" runs deep, and there are several things that you need to know before you invest in a community, and especially before you buy a house. Be sure to read your zoning codes. Focus on these four code requirements:

1. Definition of your zoning district. Do not assume you know what it means that you are in R-1 (“Residential 1”) or R-3 (“Residential 3”) or DTE (“Downtown Edge”) or whatever your city labels its zones. R-Whatever or R-You Name It have very specific meanings laid out in the city’s code. Assume nothing. 

2. Find your setbacks. These are usually in table form or slipped into the definitions of your zoning district. They regulate how close things can be to the property line, and how these setbacks are measured. These measurements may include variable factors, such as larger setbacks depending on building height.

3. Locate your allowable uses. This doesn’t just mean learning if you can have a bar on your lot. Some codes micromanage even more mundane uses; a city may limit home offices and guest houses, for example. Learn what you are allowed to do.

4. Learn about the same above items for your neighboring properties. You should know if a concrete plant is permitted to be built next door.

You do not have to be a planner to understand what can and cannot be built around you. Local governments that have adopted zoning also hire staff to interpret these codes. You can request a zoning inquiry or zoning determination for your lot. These requests should always be free verbally, and may have a minor permit fee if put on paper. Do not be afraid to ask, and in all cases, get it in writing.

Once you fully understand what is permitted by right, you will have a better understanding as to what is actually permitted through a smooth and easy approval process. You, too, may be taken aback by what is possible, which could be a dramatic departure from the character of your community, or you may be inspired to build something cool on your property.

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