A zoning plan often offers more possibilities than you think!

A zoning plan (soon to be environmental plan) determines what building and use possibilities exist on your land. If a building plan fits within the possibilities, offered to you by the zoning plan, an application for an environmental permit cannot (in principle) be refused and must be granted.

With some regularity, there are proceedings concerning the interpretation of zoning provisions in proceedings concerning the right or wrongful refusal of an application for an environmental permit.

A ruling by the Administrative Law Division of the Council of State (the Division) on Dec. 29, 2021, shows that in some cases it is not necessary to "blindly" stare at only the rules of the specific zoning, on which your building plan is planned, but rules from another zoning may also be relevant to the assessment of your building and use options.

With that, it may well be that more is possible than you initially think. On this subject, see also an earlier contribution by my colleague Rudi Minkhorst.

What was going on?

This case concerns an application for an environmental permit to construct a roof terrace on an existing annex to a house in Alkmaar. Whereas the College of Mayor and Aldermen (the College) initially granted the permit, after an objection to this decision was filed, the permit was still refused.

In the subsequent appeal proceedings, the district court ruled that the permit had been rightly refused, since the roof terrace would be contrary to the rules of the zoning plan. However, the permit applicant did not take this lying down and lodged an appeal with the Division. This shows once again how carefully plan rules must be assessed.

'Garden-2' zoning does not allow a roof terrace ... or does it?

In this case, the applicant wants to construct the roof terrace on an addition, which is located within the 'Garden-2' zoning. The provision in the zoning plan, which pertains to the 'Garden-2' zoning, does not contain specific rules about roof terraces.

Since other zoning, such as the 'Residential' zoning, does explicitly include rules about roof terraces, the Municipal Executive argues that it was a deliberate choice of the Municipal Council not to allow roof terraces on land zoned for 'Garden-2'. Since grounds may not be used in violation of the zoning given to the grounds and the planning regulations do not state that roof terraces are allowed within the zoning 'Garden-2', the application is in violation of the zoning plan and, according to the college, the permit has been rightfully refused.

The permit applicant argues that the roof terrace does comply with the zoning plan, since the building and use possibilities within the "Garden-2" zoning are connected to the adjacent residential zoning. And within that zoning, roof terraces are permitted - under conditions.

[campaigns]

Zoning reading

Before ruling on the two positions, the Division first reiterates its established case law that the zoning indicated on the map and the accompanying rules are decisive for answering the question of whether a building plan conflicts with the zoning plan.

The non-binding explanation to the zoning plan has significance to the extent that it can provide more insight into the intention of the planning legislature if the zoning and the associated plan rules to be reviewed are not clear in themselves or in context (systematics). For the sake of legal certainty, a plan rule must be interpreted literally.

Multiple destinations define possibilities

Based on this assessment framework, the Division reaches a different opinion than the Municipal Executive (in objection) and the District Court. Based on the planning regulations, the Division ruled that one should not only (blindly) stare at the possibilities within the 'Garden-2' zoning, but that one should also look at the possibilities within the 'Residential' zoning.

Decisive for the Division is the included linkage within the 'Garden-2' zoning with other zoning. Indeed, the plan rules state:

"The lands designated for 'Garden - 2' are intended for:
(...)
d. additions and outbuildings to serve the adjoining destination.
(...)

and then

"For the (...) lands, additions and extensions are permitted subject to the following provisions:
(...)
The additions and extensions may only be used in accordance with the permitted use of the adjoining main building as well as for built parking facilities.

The adjacent zoning concerns (among other things) the residential zoning. The adjacent main building is zoned "Residential", where roof terraces are allowed under certain conditions.

This brings the Division to the conclusion that the planning regulations are clear in themselves, that in the situation at hand, under certain conditions mentioned in the zoning plan, a roof terrace is allowed. The construction and use possibilities within the zoning 'Garden-2' are unmistakably linked to other provisions in the zoning plan.

Conclusion

This ruling once again makes it clear that zoning plans must be assessed with precision and it comes down to nuances. After all, it is no exception that a zoning plan allows for more functions than initially thought. It is therefore certainly worthwhile to study the zoning plan carefully (or have it studied).

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