What is "By Right," Anyway?
Another talking point we've heard about in housing documents, local news stories, comment sections, public comment, and around town is the phrase "by-right" regarding zoning. Some door-to-door canvassers in town have intimated that "By Right" means "somebody can build whatever they want on their property." This is untrue, though it is a political canard of a particular group in town intended to whip up fear, uncertainty, and doubt.
The term is treated like a new concept we are unfamiliar with, but "by right" has always existed in our zoning code. Perhaps it wasn't called out by its name before, but doing so now gives us more precision to make mindful choices about what types of buildings and uses we allow in Prairie Village and where we allow them.
Property Rights
Anyone who has owned property knows that while property rights exist, you're immediately subject to the "terms and conditions" of owning property. You have to keep up the lawn, you need to maintain your home to a proper extent, and you can't just build anything you want. Cities limit what types of buildings can be built in various zoning districts. They limit the buildings' size, various stylistic features, and things like property line setbacks. They also limit what the buildings can be used for.
If your zoning district allows a form and use of a structure you wish to place on your property outright, then you are said to have that use "by right." This means that you don't need special permission from the city to build what you want, but you will need standard code reviews to ensure your building is up to standards. Common uses such as pets, playsets, gardens, and other uses are directly allowed by right in our zoning code. It doesn't require special approval by the planning commission or a political body like the city council (also known as "discretionary review"). Just nuts and bolts code inspections.
That's it. That's all "By Right" means. It's a thing everybody inherently understands, but maybe they didn't know it had a name.
So Why is it Relevant?
The Ad Hoc Housing Committee suggestions included modifications to zoning districts "by right." Meaning that the committee believed that if we were going to change what is allowed in various zoning districts, we should do it in a forthright way. If we allow additional forms and uses in our zoning districts, we shouldn't create a bunch of hoops for homeowners to jump through. Those new forms and uses should be given to homeowners as added property rights: by right. What those forms and uses should be remains to be seen by the council and the planning commission.
Does By Right Override My HOA Rules?
Generally no. If the city affords you a new use of your property that you've already agreed to give up by your HOA covenants or deed restrictions, then a new by-right change won't apply to you or your HOA-governed neighborhood. HOAs are common in PV, but they're not ubiquitous. Many HOAs can see what the city allows and adjust their covenants to meet the needs and wants of their neighborhoods.
When it comes to city rules vs. HOA rules, the easy way to think about it is "most restrictive wins." If your HOA limits home height to 35' but the city limits to 30', you stick with the city rule. If the city limits setbacks to 10' but the HOA calls for 15', you must do 15'.
My Position
I believe that homeowners generally understand a property's highest and best use for themselves. I generally favor expanding property rights for homeowners with the intentionality that property use isn't overly disruptive to a neighborhood. I think that expanding homeowner rights in ways that allow them to remain in their homes, better use their homes, and better afford to stay in place are things we should all be doing. This includes investigating things like ADUs, lot sizes, and other things – specifically for the benefit of live-in homeowners and not landlords – to level the playing field between owner-occupiers and big real estate corporations. If we approve something for use in a zoning district, it should generally be by right. Residents shouldn't need a lawyer or be a lawyer to access their property rights.