Planopedia

The goal of a discretionary approval process is to determine whether a development proposal is worthy of entitlement, or the right to proceed with development and construction. Jurisdictions at every level of government undertake discretionary approval processes to either approve or reject development projects. In most cases, but with some exceptions listed below, a discretionary development approval process is required for proposals that don't conform to the land use regulations defined in a zoning code. A by-right development, by comparison, conforms completely to the zoning code and is granted entitlement without a discretionary approval process. 

As mentioned above, a discretionary approval process is required for projects that don't conform to the zoning code. Non-conforming projects will seek variances, amendments, special exceptions, or conditional uses, to name a few examples, to get to the goal of entitlement (San Diego and St. Helena, both in California, helpfully list all the reasons a project would require a discretionary approval in those cities). The decision-makers in discretionary approval processes will undertake this deliberative process and exercise legal judgment under intense scrutiny from politicians and the public. That pressure, and the many potential forms of discretionary approval, means that the outcomes of discretionary approval processes are far from certain.

Non-Zoning Triggers for Discretionary Approval

Both state and local governments have created additional, non-zoning triggers for discretionary approval processes. State environmental laws, for example, require development projects to undergo a discretionary approval process if proposals are determined to have effects on the air, water, soil, humans, or other factors. As an example of a non-zoning trigger for a discretionary approval process, the California Coastal Act requires approval from the California Coastal Commission for all projects within the coastal zone along 1,100 miles of Pacific Ocean coastline. Some local zoning codes and land use regulations require a discretionary approval process whenever a project is of a certain size or land use type—even if the development otherwise conforms to the existing zoning code. The city of San Francisco, as another example, allows members of the public to apply for proposed projects to enter a discretionary approval process.

Depending on the jurisdiction, discretionary approval processes can require review and approvals by a zoning board, elected officials, a planning director, or other government commissions. Also depending on the jurisdiction, discretionary approvals can require extra studies (especially for environmental impacts), public comment periods, consideration by advisory neighborhood boards and appointed commissions (e.g., local planning commissions and citywide planning commissions), and approval by council committees and the full council. Additional state and regional commissions or boards also have the power to approve or deny a project during a discretionary approval process, depending on the mix of laws in play in the jurisdictions (like the example of the California Coastal Commission mentioned above).

Discretionary Approval or 'Spot Zoning'?

Almost every growing city in the United States is faced with a steady stream of developments that require a zoning variance or amendment to achieve entitlement. In some jurisdictions, developments requiring zoning amendments or variances are more common than by-right developments. Discretionary approvals are so common that the over-reliance on discretionary approvals has its own pejorative term: "spot zoning." 

Developers also claim that the time and expense of discretionary approval processes are prohibitive to many forms of development that are otherwise desired by the market. Thus, the reliance on discretionary approvals indicates a disconnect between land use regulations and demand in the real estate market. (By-right entitlements are indisputably less expensive than developments requiring discretionary approval.) 

Developers aren't the only stakeholders with complaints about discretionary approval processes. Members of the public also express frustration with the uncertainty created by the inefficiencies of discretionary approvals. But, members of the public who generally oppose new developments will tend to favor discretionary approvals, because they can wield the threat of discretionary approvals to delay and even prevent development until it conforms to their expectations. 

The American Planning Association has, historically, argued for the crafting of zoning codes and other development ordinances that allow development to occur by-right, saving time and money for all parties involved by decreasing the use of discretionary approvals without stifling desired change and development in cities.