By-Right Development
Housing or other construction that local staff must approve without a public hearing, variance or discretionary vote, because the project meets all of the written zoning and building standards that already apply to the site.
What Is By-Right Development?
By-right development, also called as-of-right development, means a project that complies with every applicable zoning and building rule can be approved by staff without a discretionary decision. There is no public hearing or vote on whether the project should be allowed. Officials compare the plans with written, objective standards, such as height, setbacks, number of units and design requirements. If the plans comply, the permit is issued.
How It Works
Most zoning codes sort uses into approval paths:
| Approval path | What happens | Common example |
|---|---|---|
| By right (permitted use) | Staff check plans against objective standards | A detached house in a single-family zone |
| Conditional or special use | A board holds a hearing and may approve, deny or add conditions | An apartment building in some residential zones |
| Variance or rezoning | A board or council grants an exception or changes the rules | A building taller than the code allows |
In many U.S. communities, a detached house is allowed by right, while apartments, and sometimes duplexes, need discretionary approval. Each hearing creates a chance for delay, redesign or denial before construction starts, which adds cost and risk.
The idea is not new. In 1991, a HUD advisory commission urged states to direct localities to permit accessory apartments as of right, not as a conditional use, in single-family zones. It also urged states to require localities to provide zones where duplexes and triplexes are allowed as of right. The federal Yes In My Backyard Act, which passed the House in March 2020 but did not become law in that Congress, listed “expanding by-right multifamily zoned areas” among the policies that certain federal grant recipients would have had to report on.
Example
California’s SB 35, enacted in 2017, created a streamlined, ministerial approval process for qualifying multifamily housing that is not subject to a conditional use permit. It applies in localities that have fallen short of their state-assigned housing targets or lack a state-approved housing plan. SB 423, signed in October 2023, extended the process until January 1, 2036.
Under the amended law, a local government that finds a project in conflict with its objective standards must say so in writing within 60 days (150 units or fewer) or 90 days (more than 150 units). If it does not, the project is deemed to meet those standards.
Projects must also meet affordability requirements, which vary with the housing targets the locality has missed. In the least demanding case, a rental project of more than 10 units must reserve at least 10% of its homes for households at or below 50% of area median income.
Why It Matters for Workforce Housing
Small projects, such as missing middle housing, accessory dwelling units and cottage communities, often run on thin margins. A months-long hearing process can make them unworkable. By-right rules give builders predictability and limit the effect of project-by-project NIMBY opposition.
Critics argue that by-right approval reduces neighbors’ ability to shape what gets built. For that reason, by-right laws usually depend on detailed, objective design standards written in advance.
Sources
- HUD Advisory Commission on Regulatory Barriers to Affordable Housing — 'Not In My Back Yard': Removing Barriers to Affordable Housing (1991) (opens in a new tab)
- California Legislative Information — SB 35 (2017), Planning and zoning: affordable housing: streamlined approval process (opens in a new tab)
- California Legislative Information — SB 423 (2023), Land use: streamlined housing approvals: multifamily housing developments (opens in a new tab)
- California Legislative Information — Government Code section 65913.4 (current text) (opens in a new tab)
- GovInfo — H.R. 4351, Yes In My Backyard Act (116th Congress, as passed by the House) (opens in a new tab)
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