Housing Policy Fact Vs. Fiction: Part 1, As of Right

In the 107 years since the United States Supreme Court deemed segregation via zoning unconstitutional (Buchanan v. Warley, 1917), anti-housing voices have learned how to disguise exclusionary motives in socially acceptable language.

While some less disciplined individuals occasionally let their masks slip, we more often than not hear opposition to new homes couched in supposed concerns about things like sewers and traffic.

This piece is part of a series where we’ll decode the anti-housing dictionary, because effective communication is key to addressing the housing crisis.

What Is As of Right Zoning / As of Right Development?

The term “as-of-right” refers to what you’re allowed to build on a piece of land.

Zoning regulations dictate what can be built where. A particular zoning district will have one or more allowable uses: residential, commercial, industrial, etc. Zoning districts typically go even further in specifying what is permitted. For example, one residential district may allow only single-family homes, while another may also allow duplexes.

A proposed development that complies with all zoning codes within a particular district and does not require special review or discretionary approval from the local zoning authority is considered “as-of-right.”

How “As of Right” Is Mis-used

Anti-housing voices have tried to position as-of-right development as a nefarious tool used by greedy developers, rather than what it really is: compliance with zoning regulations.

This typically happens when a local zoning authority considers rezoning an area to allow additional uses as-of-right, or when a state government enacts legislation encouraging municipalities to expand as-of-right uses (e.g. allowing “middle housing” like duplexes and triplexes as-of-right near transit).

Is As of Right Zoning Bad?

That depends on your perspective. Opponents of as-of-right development argue that it deprives the public of a chance to weigh in on – and implicitly, to stop – developments in their communities through public hearings. But notably, these same voices are silent about perhaps the most common type of as-of-right development: single-family homes.

Pick any suburban community and try to build a single-family home in a neighborhood of other single-family homes. You’ll find it’s pretty straightforward. There’s no public hearing required. No waiting for a commission to vote to approve your house. That’s what as-of-right is.

It’s important to note that as-of-right developments still require building permits, ensuring compliance with applicable regulations. It simply eliminates a process that adds unnecessary time and cost.

Abolishing as-of-right zoning would significantly restrict private property rights and add layers of government red tape, making it substantially more cumbersome to build anything – even a modest single-family home in a neighborhood of single-family homes – driving up costs at a time when housing already is far too expensive. And there’s nothing right about that.

If you’re a housing advocate, let’s have a conversation about how Marino can help you achieve your mission.