Guest workers do not form households

In a recent blog, I mentioned that it is far from always easy to give a correct answer to the question of what use is permitted under a zoning ordinance. This regularly leads to legal discussions. Such was the case again in a ruling by the Division on Nov. 8, 2017 .

What was going on?

In these proceedings, several owners of summer houses on Park aan 't Veer in Nieuw-Vossenmeer had asked the city council of Steenbergen to act against the housing of seasonal workers and labor migrants on the park. According to them, this is in violation of the zoning plan and they are experiencing nuisance as a result. The municipality then imposed penalty payments on residents of summer houses where more than one household would be located.

Regulation in zoning plan leaves room for interpretation

Under the zoning plan, the land where the seasonal workers and migrant workers were housed in the park were zoned - in a nutshell - for the construction of summer homes, with the summer homes prohibited from being used or allowed to be used for permanent residence.

A summer house was defined in the zoning plan as "any on-site living quarters suitable and intended for non-permanent housing of one household. The term "household" was not defined in the zoning plan.

According to the various owners, the regulations in the zoning plan meant that non-recreational occupancy of the summer houses by housing seasonal workers and migrant workers violated the zoning plan. The Division then addressed this issue.

Method of explanation of zoning plan

In determining whether a particular use is a use, the Department follows a set pattern:

1. Legally binding are the plan map with its accompanying plan rules.
2. If a conclusion cannot be unequivocally drawn from the plan map and plan rules in isolation or in relation to each other, the Division considers the (legally non-binding) plan notes when interpreting a zoning plan.
3. If the explanation also does not provide sufficient points of reference, we fall back on "what is understood by a certain term in common parlance". The Division uses the (thick) Van Dale.

Combination interpretation methods zoning provisions also possible

This ruling shows that it is quite possible to combine certain methods of explanation.

1. On the question of whether only recreational occupancy is permitted, the Division joins the definition of a "summer house" contained in the zoning ordinance (item "1" of the permanent template). The Division notes that that definition does not imply that summer homes may be used only recreationally. It finds that this definition is not open to multiple interpretations. Moreover, the word "exclusively" is also missing. This means that the question of whether the housing of seasonal workers and labor migrants in summer houses should be considered non-recreational housing or non-recreational use is not relevant to the question of whether there is a conflict with the zoning plan. Both are permitted.
2. In answering the question of whether housing seasonal workers and migrant workers also constitutes "one household" as referred to in the zoning plan, the Division takes a different tack, noting that this term is not defined in the zoning plan.

In accordance with point "3" of the Division's established pattern, the College was able, in the Division's opinion, to follow the definition given for this purpose in the Van Dale. Therein, a household is described as "one or more persons living together in fixed relationship (possibly with (their) children)." The Board considered the fixed relationship as well as the continuity and interconnectedness to be of distinctive importance and was allowed to do so in the opinion of the Division.

Outcome

As a result of an investigation by the municipality into on-site occupancy, in the opinion of the Division, the Board could and should have taken the position that seasonal workers who stay with each other in a summer house and have no affective or familial relationship with each other, as well as do not live together at their main residence, cannot be characterized as one household because of the lack of attachment and continuity. Groups of friends also generally do not meet these criteria.

The Division's conclusion is thus that the housing of seasonal workers and migrant workers violates the zoning plan and the college has the authority to take enforcement action against it.

This ruling shows once again that the interpretation of a zoning regulation can be quite nuanced.

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