Existing parking shortage no reason to deny permit

Can an existing parking problem be a reason to deny a permit? On Jan . 2, 2019, the Administrative Law Division issued a clarifying ruling on this question.

It can be inferred from this ruling that if adequate parking is provided on your property for your own building plan, parking issues cannot be a reason to deny a permit.

What was going on?

These proceedings concern an environmental permit to build 56 apartments in Alkmaar. The building plan is not in accordance with the zoning plan, which also required a declaration of no objections from the city council (vvgb).

The City Council did not want to make that statement, as the City Council believed that there was already a parking problem at the project site. This problem would only increase with the realization of the apartments. The permit was therefore denied.

The developer, Timpaan Realty, disagrees with this refusal. It argues that it is simply meeting its parking needs on its own land and cannot be required to solve an existing problem. The Administrative Law Division must ultimately rule on who is right.

Questions parking test in environmental permit

The Division begins its ruling on the reason for refusal by pulling apart two essential questions:

1. Does the project provide sufficient parking to meet its parking needs?
2. May the city council consider an existing shortage of parking spaces when considering whether to issue a no-objection certificate?

Sufficient parking? Existing shortage need not be solved

On the first question, the Division reiterates its established case law. Which holds that:

"in assessing whether a project provides sufficient parking to meet parking needs, only the increase in parking needs resulting from the realization of the project may be considered."

An existing shortage can be disregarded as a rule, according to the Division. Since Timpaan Vastgoed provides sufficient parking on its own grounds, the Division seems likely to agree. That would mean that the permit could not be refused because of a "parking aspect.

Vvgb: existing parking shortage is spatially relevant and must be taken into account

However, that is too short of the mark. Indeed, the Division ruled on the second question that the municipal council, in assessing whether to issue a declaration of no objections, must consider whether the project conflicts with good spatial planning. The Division states:

"In doing so, the city council must consider all planning relevant circumstances. An existing shortage of parking spaces may be one of them."

According to the Division, the municipal council may take an existing shortage into account when deciding whether to issue a statement of no objection. The Division does set a clear requirement: the city council must provide sound reasons why a project, given the existing shortage of parking spaces, conflicts with good spatial planning. It must be made clear how a new development relates to the existing parking shortage.

Does this now mean that the permit was rightly denied after all?

Developer gets right: parking aspect is not a ground for refusal

'No' is the Department's answer. The city council was not allowed to cite the parking problem as a reason for refusal. The Division considers a number of circumstances to be important here:

1. The developer will provide adequate parking on its own property for all 56 apartments to be constructed.
2. While a nearby office building and hotel are entitled to the use of 52 parking spaces on Timpaan's property, these spaces will remain available to them as well.
3. To the extent that surrounding offices use the site, Timpaan has no obligation to provide parking spaces on its land for those offices. This is true even if the office capacity still available there is utilized. The offices simply have no claim to the parking spaces on the lot.
4. The zoning plan, in itself, allows parking on the site to become impossible, for example by creating green spaces. The zoning plan (adopted by the City Council) explicitly allows this.

Own fault, municipality!

"Own fault, municipality," the Division seems to want to say. It rules:

"Apparently, for the benefit of surrounding offices, adequate on-site parking is not provided and the past is not guaranteed that adequate parking for those offices will be provided elsewhere. But that does not mean Timpan Real Estate is now bound to solve the parking shortage of those offices."

The Division rules that Timpaan's application must be decided again. In doing so, the Division indicates that the required statement from the City Council cannot be denied due to the parking aspect.

Conclusion

The lesson to be learned from this ruling is that if your building plan itself provides sufficient on-site parking, a municipality cannot deny you a permit because of the parking aspect.

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