(Editor’s note: NIMBY Wars – The Politics of Land Use will be published on October 28. In this excerpt, the old notion of projects winning approval because they meet zoning requirements without a forum for opposition has been consigned to history)
By P. Michael Saint, Robert J. Flavell and Patrick F. Fox
Old-timers in the development business will remember when as-of-right development was the rule, not the exception. How times have changed.
As-of-right means that the development proposal meets the re-quirements of the zoning ordinance or bylaw, so no type of approval, hearing, or discretionary zoning relief is needed and therefore no forum is available for opponents to hound their elected public officials.
The developer simply files the plans and application for a building permit, which the building department rubber-stamps and issues. Modern citizens and New Age planners, who consider themselves stakeholders in other people’s property, don’t like as-of-right development because it robs them of what they consider their right to dictate the design of someone else’s project. So modern ordinances, by and large, severely limit the property owner’s ability to get a building permit as a matter of right, and some regimes — the form-based zoning variety — eliminate it entirely. Instead, ordinances require discretionary relief: a special permit, a conditional use permit, a special use permit, and, of course, site plan review. Although an even-handed board would treat hearings on such permits as formalities, the reality is that once a forum is required, opponents have an opportunity to object, suggest changes, cause delays, pressure the board members, and call for the plans to be withdrawn and resubmitted with a much less ambitious design.
In some states, developers (and some local boards) confuse as-of-right with discretionary permitting. The fact that the developer appears before the local board and makes a presentation that addresses each required element does not automatically give him a right to discretionary zoning relief. While he might truly believe that he has satisfied each element of the required showings, that belief does not constitute objective truth. Board members are not supposed to decide the case based on legally irrelevant factors outside the scope of the statute or ordinance, but their perceptions and the developer’s may differ — and theirs is the perception that counts. If the question is whether the proposed project sufficiently protects the environment, does enough to screen the neighbors, or effectively blocks pollution
— all subjective judgments — the decision the board reaches on whether the developer has satisfied the requirements will be binding.
The developer can appeal, but courts broadly defer to the judgment of the local board that, after all, heard the testimony and viewed the evidence. If the board says no, the courts will ordinarily uphold that decision, unless the developer can prove that the board acted either corruptly or in an arbitrary and capricious manner. This is very difficult to do and illustrates why so few developers win appeals of discretionary decisions.
Once again, all land use decisions are political. It might be argued that board members voted against the project for legally improper reasons — because the neighbors oppose it, for example — rather than because the proposal failed to meet the ordinance criteria. But saying it and proving it are two different things.
As-of-right is also an old-fashioned misnomer in the modern world because of the litany of compliance regulations and reviews that offer opponents further opportunities to complain. In addition to the traditional bulk and dimensional issues, environmental, ecological, historic, and archaeological reviews are now common. New federal, state, regional, and local compliance elements are added every year as bureaucracies grow and justify themselves.
In some states, like California and Connecticut, the development’s economic impact must be examined, while in others, compliance with the urban growth limit and agricultural zone limits must be met. Imaginative New Age planners are now including “view-scape” and “odorscape” requirements in their squishy and highly discretionary review requirements, making development permitting un certain and undermining the developer’s ability to secure and maintain financing. This latter issue is one that sophisticated modern-day opponents have come to cherish: delay a project long enough, and the developer’s financing will dry up, or the carrying charges will overwhelm her, and she’ll simply go away.