Legalize It - “Development by Right” Unlocks More Homes for Our Neighbors

In most of the United States, “discretionary development” for home building is the norm. Guidelines for development in a discretionary system are often unclear to developers, creating approval risk for proposed projects. Discretionary development also requires political approval and often involves public hearings, environmental reviews, and input from community members or city officials. These additional steps add bureaucracy, are sensitive to negative public pressure, generate approval uncertainty, lengthen development time, and add significant financial cost to the development process. All of these pressures reduce the number of homes built each year and exacerbate our housing crisis. 

What is By-Right Development?

By-right development (also known as ‘ministerial’ or ‘as-of-right’ development) is an administrative process where a proposed project is automatically approved if it follows all established zoning and building codes. Typically the criteria for by-right development are made with community input, and set out in advance in written law or plans An example of this is a comprehensive plan, such as Minneapolis's 2040 Comprehensive Plan. In a by-right system, planning staff can quickly approve a project based solely on whether it meets established legal requirements or not.  No further approval from local boards, city councils or the public is required. 

When a development qualifies as by-right, local governments cannot deny or delay it without facing potential legal liabilities, shifting power in favor of building new homes.

What is the Impact of Implementing By-Right Development?

By-right development streamlines the housing approval process, reducing time and costs. When a project avoids lengthy public hearings or negotiations, it can be completed faster and with fewer legal hurdles, making it easier to create new homes. The key benefit is certainty—developers know that if they meet the existing rules, they can move forward without delay.

Japan provides an excellent example for by-right development policies, and it has largely avoided the kind of housing crisis seen in countries like the United States, United Kingdom, Australia, and others. Japan's success is due to a centralized zoning and planning system that allows flexible development, especially in urban areas like Tokyo. Housing development is fast, and regulations permit developers to build by right. 

In cities like Tokyo, homes remain relatively affordable compared to other global cities due in large part to these permissive development policies, which allow developers to "build anywhere" with minimal restrictions. This model has kept Tokyo from experiencing the extreme housing shortages seen in places like London or San Francisco​.

How Do Comprehensive Plans Fit Into By-Right Development?

Comprehensive plans, or "comp plans," serve as blueprints for long-term city growth, outlining where different types of homes and businesses  can be built. Comprehensive plans, like the Minneapolis' 2024 Comp Plan, are created with extensive community engagement where the members of impacted communities are heard from and whose goals are added to the development plan. However, a comp plan itself doesn’t determine whether a project is by-right or discretionary—it merely sets the vision. It is zoning laws and land-use regulations that define which developments are allowed by-right and which require discretionary review.

For example, a comprehensive plan might designate certain areas to increase homes in, such as those near job sites or along transit routes. If the zoning code is not updated to reflect that vision, developers may still need to ask for a variance, a special exception, to build those homes. This is why it's essential for zoning codes to align closely with comp plans to enable by-right development where it's needed.

Minneapolis has embraced some aspects of by-right development. For example, the Comp 2040 Plan, adopted by Minneapolis in 2018, allowed for duplexes and triplexes to be built ‘by-right’ in areas previously zoned exclusively for single-family homes. The plan also prioritized denser development along transit routes and major corridors, allowing larger apartment buildings to be built by-right in areas that were previously limited to lower-density homes.These changes removed the need for developers to apply for variances, making it easier to build multi-family homes in residential areas.

Other Ways By-Right Development Can Be Allowed: State Preemption

One potential way to implement by-right development is through state preemption, where state laws override local zoning regulations. This can happen when state governments pass laws that require cities to allow certain types of development by-right. States can use preemption to push for more homes by mandating that certain projects (such as affordable homes near transit) to be processed by-right, even if local jurisdictions would otherwise require discretionary reviews.

State preemption is a powerful tool because it can standardize development rules across multiple cities, making it easier and more predictable to build homes across a region, not just in a single city.

This is an idea that most Minnesotans now support. 58% of Minnesotans state that they prioritize building more homes and bringing down housing costs over preserving the power of city governments to control what type of homes are built. That's why Neighbors for More Neighbors is working towards state law changes that allow development by right. 

Conclusion

By-right development is an essential tool for cutting through bureaucratic red tape and lowering the costs of building new homes. By reducing the number of hurdles for developers, cities can encourage the creation of more homes at all income levels. Aligning zoning codes with comprehensive plans, implementing state preemption where necessary, and embracing by-right policies can help Minnesota and other jurisdictions unlock homes for all our neighbors. 

Written by Paul Manning, volunteer with Neighbors for More Neighbors