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By Right

A friend offered the following discussion of the proper definition and use of the term, "by right."  (We have editted it a bit, for context)

Some Council Members, members of Planning Commission and planning staff have co-opted the term "By Right". Their misuse of the term is likely based on the city attorney scaring them.  The full term is "use permitted by right."  In the zoning code, under each district description, you will find a list of "Uses Permitted By Right."  For example, PL (public land) includes parks, parking lots, and most recently, transportation facilities were added.  O (office) allows for office uses as well as residential uses and others.

The point is that the term "by right" is not talking about the physical requirements of a site plan--commonly known as "area, height and placement."  It has nothing to do with the environmental restrictions, the population density, setbacks, etc.  All you can say about this proposal is that they have submitted a site plan with a USE that is permitted in these zoning districts BY RIGHT.  No one can tell the developer he can't put a residential project here, if that use is permitted.  The rest is up to the interpretation and discretion of the City staff and planning commission, and ultimately in most cases, city council.

Sadly, most litigation in zoning matters is introduced by developers since they have the money, the organization, and the attorneys to fight.  They can easily make a case for the loss of potential revenue (as exaggerated as it sometimes can be), whereas neighbors, or citizens are severely limited in what they can bring forward as potential damages.  Neighbors and citizens seldom have the money to pay the legal bills, including expert witnesses, that add up quickly.  Because of this, the vast majority of cases on the books are developer-initiated, and developer-won.  As a result, our risk-averse City Attorney advises staff, commission and council to always err on the side of the developer, and have often told them that "if it meets the minimum requirements, it must be approved."  There is no interest whatsoever in examining ways that the regulations may be interpreted that might make them even slightly more restrictive on developers.  There seems to be the belief that regulations, once interpreted one way, MUST be interpreted the EXACT same way for eternity.  This goes against common sense and the human capacity to grow and learn.  It also goes against some federal cases that ruled in favor of agencies that changed their policies to reflect new science or other information that gave them a reason to change.

So, next time you hear the term "by right" being bandied about, remind folks that that term only refers to the USE of the parcel.  Every other aspect should still be subject to detailed scrutiny, interpretation and human discretion.  Unfortunately, this is where the City almost always falls down due to very weak knees.

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