In a ruling on October 17 (ECLI:NL:RVS:2018:3362), the Division ruled that the presence of an alternative plan initiative means that further research should have been conducted into the desirability and feasibility of that initiative. This is quite extraordinary. The existence of alternatives is raised in many planning procedures, but generally comes up against the policy freedom the council has when adopting a zoning plan.
City Council policy discretion
It is established case law that the council, when choosing a zoning, must weigh all the interests involved in the adoption of the plan. In doing so, the council has freedom of policy. The advantages and disadvantages of alternatives must be included in that consideration. The choices that are made as a result of that consideration soon fall within the policy space that the municipal council has when adopting a zoning plan. As a result, the Administrative Law Division of the Council of State does not itself determine whether the plan is in accordance with good spatial planning, but assesses whether the council could reasonably take the position that the plan serves good spatial planning. An appeal to an alternative infill of the plan area therefore does not often succeed.
Alternative plan to be further investigated
However, this was the case with the zoning plan at issue in the October 17, 2018 ruling. That case is about filling a "gap in the market" of Haaksbergen. The municipality had been working for some time to come up with an infill for that center area. A feasibility study had previously been drawn up, which would show that a variant with a supermarket was preferable to one without. After several consultations, the city council ultimately chose the variant without a supermarket. This while an owner of land within the planning area had developed plans that did include room for a supermarket. Moreover, the initiator was able to demonstrate that the plan could be financially viable and that there was a need for the realization of a supermarket on site. Nevertheless, the city council chose the initially less desirable variant without a supermarket. The landowner then decided to appeal against the adoption of the plan.
Although the existence of alternatives is generally dismissed fairly easily by the Division, the Division concluded in this ruling that the municipal council could not have simply ignored the appellant's plan. The Division considered it important that the council confirmed that the modified supermarket plan had not been assessed in financial terms, while it was plausible that this plan was now more financially attractive to the municipality than the initiative that the appellant had previously submitted to the council. Furthermore, the Division ruled, among other things, that the council had not substantiated why a supermarket was less desirable for local residents because of the manner of supply and the traffic-attracting effect than the center facilities and the residences provided for in the approved zoning plan.
This leads the Division to conclude that the City Council could not have taken the position, based on the arguments used, that the supermarket plan is not desirable and feasible. In this case, this even leads to a "bare annulment" of the adopted zoning plan. The Division apparently considered that the alternative plan was probably so much better that the permitted development will no longer take place at all.
Doing homework pays off
Although the existence of alternatives will normally not easily prevent the adoption of a zoning plan for another plan, a well-developed and well-substantiated initiative can ensure that the city council can no longer ignore that alternative plan. This may prevent interesting developments from landing on someone else's land.
This means for landowners within an area where new development is expected, that by doing the necessary homework (in a timely manner!) they may be able to prevent desirable developments from passing them by.
Quickscan zoning plan
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