When “As of Right” Goes Horribly Wrong

The Saint ReportNIMBY, Planning and Zoning, saintblog, Thought Leadership, Uncategorized

From NIMBY Wars: The Politics of Land Use

By P. Michael Saint, Chairman and CEO &
Patrick Fox, President, The Saint Consulting Group

NIMBY WarsOld-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 requirements 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have an opportunity to object, suggest changes, cause delays, pressure the board members, and call for the plans to be withdrawn and resubmitted with a much less ambitious design.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 “viewscape” and “odorscape” requirements in their squishy and highly discretionary review requirements, making obtaining a development permit uncertain 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.

Even if the developer is able to secure a building permit, there will be numerous other permits, certificates, and sign-offs that provide a range of opportunities for opponents to throw up obstacles. Will the project require a state-issued curb cut to discharge traffic onto the public way? Opponents will write letters and corral their state legislators. Does the project need sewer and water hookups to municipal services? Opponents will demand a study measuring the impact of the development on the sewer and water systems’ capacity, and the resulting effect on both water pressure and the flow rate through sewer discharge pipes. They’ll ask for the fire chief’s ruminations on whether the project will make it difficult to fight a serious inferno elsewhere in town, and inquire of the water department whether the development will result in watering restrictions on homeowners’ lawns. Does the project require a gravel or soil removal permit? A tree-cutting permit? Fire department access? A trash disposal permit? A dust remediation permit? Runoff booms and erosion barriers? Excavation in the public way to install pipes and wires? In each case, opponents have an opportunity to object, raise issues, and cause delays.

Where the developer is the tenant, as when major retailers build stand-alone stores so they can control the site, or where the anchor tenant’s identity is known, obvious, or assumed, operational issues enter the fray, making the problem is more complicated. Why should the greenhouse on a big-box development be allowed to use 50,000 gallons of water per day when abutting residential neighbors are prohibited from watering their lawns all summer? So the owner can make a profit? Shouldn’t the store’s roof and parking lot runoff be collected in a tight tank? If not, how will the owner remove pollutants that will otherwise get into the groundwater? What types of chemicals are the store’s photo developing and garden departments going to pour down the drains? Why should the big-box be open 24 hours a day when working people nearby are trying to sleep? Should the store be allowed to leave its parking lot unpatrolled when teenagers are likely to use it to execute “donuts” with their screeching tires, yell obscenities, take drugs, and smash beer bottles? Why should the taxpayers pay the police to quell these disturbances when the owner can hire a guard service?

These questions demonstrate why big-box tenants typically seek to remain anonymous and place their out-front developers in the laughable position of claiming that they don’t know who the tenant will be. In other words, they want people to believe that they’re going to clear a 10-acre site and build a 250,000-square-foot box on speculation.

A further point about as-of-right building is that, even though the project may appear to meet all the legal and zoning criteria, the community can hastily amend the zoning ordinance, or declare a building moratorium, or find technical fault with the design or documents, thereby staying the hand of the building commissioner or overruling his decision. Will this lead to litigation? Maybe, but as noted earlier, courts will try hard to defer to the local board. Even if the court finds against the community, it will simply refer the matter back to the local board for a rehearing. A developer who thinks a local board, once sued and defeated in court, will then approve a project it deplores is living in a fantasyland. Meanwhile, the community is rewriting the bylaw, rezoning the land, and adding to the list of requirements to obtain discretionary permitting.

The point is that the local land use permitting process is totally political and is thus controlled by those who control the ballot box. Even where regional or state bureaucrats are responsible for issuing various permits and certificates, they and their supervisors are likely to comply with the request of a legislator, mayor, or other elected official representing the community. It seldom needs to get down to whether their agency budget will be cut, or whether heads should roll at the permit-issuing desk, or even whether the requesting party belongs to the same political party as the governor. The politics of favor trading are more subtle than that, and more effective.

Modern project opponents are both resourceful and determined, and the political pressure they can bring to bear easily short-circuits the supposed right to build. Challenging the building permit as improvidently granted, attacking the ancillary permits, demanding a full environmental impact report (EIR), finding listed endangered species on site, and uncovering an archaeological or historic site are all within their knowledge and ability to do at the local level. They are not above appealing to higher authority—the Army Corps of Engineers, the Federal Aviation Authority (FAA), the Federal Communications Commission (FCC), the Environmental Protection Agency (EPA), the Interior Department, the National Park Service, or whatever bureaucracy might have some jurisdiction. And they are not shy about going through their congressional delegation to make sure their concerns are heard.

Finally, project opponents know that state and national organizations of all stripes—environmental, ecological, antidevelopment, anti–population growth, anti–big-box, pro-planning, preservationist, historical, archaeological, maritime, utopian—are readily available through Web sites and e-mail to offer advice and ideas that are, on analysis, nothing more or less than political strategies and tactics.

 Mike Saint is chairman and CEO of The Saint Consulting Group, email: msaint@tscg.biz.
Patrick Fox is president of The Saint Consulting Group, email: