“By-Right” Zoning: What It Means and Why It Was Created to Protect Communities Like Imperial Valley
The phrase “by-right development” appears frequently in the IVDC dispute without much explanation of what it actually means and why the legal framework was designed the way it was. The explanation matters, because understanding by-right zoning is understanding why the County of Imperial’s approval of the IVDC was legally correct and why the City of Imperial’s challenge to it was legally insufficient.
What By-Right Means
In California land use law, a “by-right” project is one that meets all applicable objective standards for its zoning designation without requiring discretionary approval. Discretionary approval involves judgment â a planning commission or city council considers the project and decides, in their discretion, whether to approve it, modify it, or deny it. Ministerial approval involves application of objective standards: does the project meet the standards for its zone? If yes, the permit is issued. The decision-maker has no discretion to deny a project that meets the objective standards of its zoning.
The IVDC is a data center â a by-right I-2 Heavy Industrial use in Imperial County’s zoning framework. The project meets the objective development standards for the I-2 zone. The county had no legal authority to deny it and correctly issued ministerial approval.
Why By-Right Was Created
The by-right framework was not created to help corporations evade environmental review. It was created to give landowners and communities predictability in land use outcomes â to ensure that land designated for specific uses can actually be used for those purposes without being subjected to unpredictable discretionary review that can be manipulated by organized opposition with resources and legal sophistication.
This predictability benefit accrues disproportionately to communities that lack the political and legal resources to navigate discretionary approval processes. When industrial land is by-right industrial, a factory or data center or warehouse operator can build on it without hiring an army of land use attorneys to manage a discretionary process susceptible to organized opposition. This predictability makes the land economically valuable for the purposes it is zoned for, which benefits the community through development activity and property tax revenue.
Who Benefits When By-Right Is Undermined
When organized legal challenges successfully convert by-right approvals into discretionary processes, the practical effect is to make development on pre-designated industrial land more difficult and expensive â primarily for the developers who had relied on the by-right framework to make their investment decisions. This outcome benefits parties with resources to sustain litigation and disadvantages parties whose business models depend on the predictability that by-right zoning is supposed to provide.
In the IVDC case, the parties with resources to sustain litigation are not the Imperial Valley workers and school districts who stand to benefit from the project. They are organizations whose funding comes from foundations and advocacy networks outside the region. The by-right framework that the City of Imperial tried to undermine was the framework that protected Imperial Valley’s ability to capture this investment. The court defended it. The community should understand what it was defending.
Original Article: https://www.ourimperialvalley.com/by-right-zoning-what-it-means-why-created-protect-communities/
