With some regularity, litigation takes place about migrant workers who are accommodated in a (form of) hotel. Often local residents take the position that the use of the building is in violation of the zoning plan. Apparently people experience more nuisance from migrant workers than from tourists and business hotel visitors. To answer the question of whether the stay of labor migrants in a (form of) hotel violates the zoning plan, the circumstances of the case will have to be accurately applied to the provisions (including definitions) of the zoning plan. Today, the Administrative Law Division issued a ruling on this issue, which also provides some general guidance for assessing such a case.
Migrant workers at Hotel Noordoostpolder in Bant
The issue concerns hotel 'Noordoostpolder' in the municipality of the same name in the core of Bant. With regard to the permitted use, the plan regulations state that the grounds are intended for a business aimed at providing accommodation (hotel business). A "hotel business" is defined as a catering establishment, which is primarily aimed at providing overnight accommodation (booking per night) where meals, small food and beverages can be provided to guests and passers-by. According to the decision of the college, a rejection on the request for enforcement, the use of several rooms by migrant workers for an extended period of time would not violate this zoning.
Court: no hotel business because of overall picture
The court did not follow the municipality in this. According to the court, it follows from the planning regulations that a hotel business only exists if the stay of guests is limited in duration. Since it was established that several guests/work migrants were registered as guests for three to five months, this was a strong indication that the property was being used in violation of the zoning plan, according to the court. Using an overall picture, including the nature of the stay, the court concluded that there was a use of the property contrary to the zoning plan.
The Department: a hotel business generally sees overnight stays for limited duration
On appeal, the college and the property owner argue that the length of stay is not relevant to answering the question of whether there is a hotel business. According to them, the fact that the plan rules mention "booking per night" does not prevent a room from being booked for a large number of consecutive nights. According to them, it does happen more often that people stay in a hotel for long periods of time and it is not important that mainly employees of a specific company stay in the building, since the nature of the stay (business or tourist) would not matter. As for the "overall picture" that was decisive for the court, the college and the property owner note that the property has a common entrance, a reception area, a kitchen, and that an administrator, cook and cleaner are present in the property, which they claim would also be important for qualification as a "hotel business.
The appeal did not succeed and, following the court, the Division also concluded that the use was contrary to the zoning plan. To this end, the Division considered in fairly general terms that a hotel establishment generally provides overnight accommodations for a limited duration. The fact that in certain cases people stay in a hotel for a longer period of time does not detract from this, as these are exceptional cases according to the Division. In the present case there is no exceptional case, because according to the hotel registration six persons stayed at the hotel for a period of five months and three persons for three months. The Division takes into account that the property as a whole has only 22 rooms. The Division continues that, contrary to the court's consideration, the nature of the stay (business or tourist) is not important when assessing whether there is a hotel business as referred to in the planning regulations. But, according to the Division, this further does not alter the fact that it does not follow from the overall picture that there is a hotel business. Although the Division takes into account the argument of the Municipal Executive that there is a common entrance, reception and kitchen and that there are personnel present in the building, it states that it appeared at the hearing on appeal that facilities appropriate to a hotel establishment, such as room service, daily cleaning and bed-making, were missing. Furthermore, it emerged at the hearing that the company's employees slept with two or three people in one room, which the Division believes is also not common in a hotel business.
The municipality will have to take enforcement action
The Division ultimately concludes that "in view of all this" the use of the premises as regards the accommodation functions is in violation of the zoning plan. This means that the Municipal Executive is authorized to take enforcement action, which authority it should, in principle, use because of the public interest served by enforcement. It does not appear from the proceedings that the college has already taken this step. So to be continued, but the migrant workers will probably have to go elsewhere (for a longer duration) in the future....
Quickscan zoning plan
Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.
