Housing type, location, and placement tend to dominate the zoning reform discussion in the public’s mind. Topics such as allowing accessory dwelling units (ADUs) in existing neighborhoods, townhomes within single-family home neighborhoods, and residential development within commercial zones are seemingly at the forefront of the housing policy discussion.
This may be where the public focuses its attention — which makes sense. This is what the average American thinks of when they hear someone utter the words planning, land use, or zoning. Housing type, density, and location, however, are not where the true debate lies.
The point of contention between those desperately clinging to the status quo and those focused on moving to housing abundance centers upon what prevents by-right approvals: conditions and performance standards.
Heart of the Problem
What the public perceives as zoning — density and housing typology — reflects what is allowed on paper. The performance standards (bulk controls, dedications, conditions, etc.) dictate if what is allowed on paper is also allowed in practice.
Here’s the secret about by-right approvals that is often left out of the by-right discussion: by-right isn’t actually by-right when local policies are designed, either carelessly or intentionally, to drive projects into a discretionary review.
Some of these performance standards are designed to funnel projects allowed on paper into the discretionary review process. Prime examples of how performance standards can limit housing designed to be allowed by right:
- Multifamily residential housing is allowed in a commercial zone, but only if the project can receive a conditional use permit with conditions imposed after a developer has applied for a permit.
- Allowing ADUs on all residential lots, but still requiring a large amount of off-street parking can prevent well-intentioned by-right policies allowing ADUs.
- Allowing smaller lots or increased density for single-family homes, but implementing setbacks, parking mandates or dimensions that prevent the advertised density from being approved by right.
Whether intentional or not, this lack of coordination between housing typology, density, and performance standards benefits those who oppose new housing or seek to extract as many concessions as possible. The discretionary review process is set up in a manner that through public hearings, residents can place political pressure on elected or appointed officials to require changes to a proposed project on its pathway to gain approval.
A Path Forward
The scope of our nation’s housing deficit requires a surge in housing production not seen since the years following the Second World War. Having the bulk of the approval process move at the glacial pace of discretionary reviews will undoubtedly slow this progress.
Increasing housing options in any given location is necessary to solve the nation’s housing deficit. The same goes for a modest increase in allowed density. As impactful and critical as these are, and they are, it can all be for naught if communities do not adjust their performance standards to ensure that what is advertised as allowed by-right is possible not only on paper but also in practice.
Thankfully the fix is simple.
Cities with political will can choose to take the necessary steps to ensure that what they advertise is achievable by ensuring their performance standards allow the housing type and densities advertised without moving through the discretionary review process. State legislators can also step in and create guardrails in the performance standards to ensure that by-right housing is aligned and allowed both on paper and in practice. Getting to true by-right development, not simply allowed use, is what matters if we are to end the housing crisis in cities, states, and the country as a whole.
