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All is Fair in Love, War, and Land-Use Policy: How By-Right Zoning Can Break New Ground in Land Development

Written By Belfort Group

October 3, 2022

All is Fair in Love, War, and Land-Use Policy: How By-Right Zoning Can Break New Ground in Land Development

“Don’t compare me to the Almighty, compare me to the alternative.”  

This is one of President Biden’s favorite quotes, and it hits a core political truth: no candidate or policy proposal is perfect. It applies just as well to land use as it does to electoral campaigns, where voters often have a laundry list of complaints about a particular project but can fail to consider what would be built instead if they voted it down. Many times, that imperfect project would still be a vast improvement over the status quo, and it’s up to developers to convey that fact.  

The key to achieving this is through the concept of “by-right” zoning, which represents what can freely be built on a parcel — no need for a zoning change or variance. In many cases, the by-right use case is less preferable to both communities and developers, but if stymied at City Hall, the developer would rather build something than nothing. If a community fully understands what can be built by right, they will sometimes permit a proposal they’d otherwise quash, for fear of the alternative.  

Savvy developers can take advantage of this dynamic to win support for their projects by pointing out what they will be able to build should their original idea be shot down. If that sounds similar to playing hardball — well, it is! All is fair in love, war, and land-use policy. However, just because developers have this tool in their toolbox doesn’t mean they should deploy it aggressively; overt blackmail can backfire and leads to bad community relations even if it works. Instead, consider these tactics:  

I’m Not Mad, I’m Disappointed: Make it clear in your communications that you don’t want to go with the by-right option- but economic realities would force you to if your original proposal is rejected.  

Use a Proxy: Enlisting the help of a third-party case maker, like a well-respected community member or a local elected official, can diffuse some hostility by playing the “bad cop” role on your behalf. The key to pulling this off is to convey the reality of the by-right zoning situation behind the scenes.  

Paint the Picture: Invest time and money in really bringing the by-right use to life — just like you would for your preferred projects through tactics such as interviews with media, detailed renderings and getting facts and figures on community impacts. By fully fleshing out the “bad” option, it makes your preferred project more appealing.  

These are the tactics surrounding the recent finalizing of by-right multifamily housing in Massachusetts’ so-called “MBTA communities,” the cities and towns closely connected to the statewide public transit network. State officials have made dense, multifamily housing a by-right use within half a mile of train stations and T stops, handing a powerful tool to housing advocates. By doing so, they have also bolstered different types of development in the area by presenting developers with a credible threat to stubborn NIMBYs should they simply dig in their heels and say “no” to everything else.  

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