No claim for planning damages through passive assumption of risk? Not always, municipality!

The adoption of a new zoning plan may reduce the possibilities for use of your plot of land, thereby reducing its value. You can then request compensation for planning damage. But what if the municipality subsequently informs you that you are not entitled to compensation for planning damage because you did not attempt to use the possibilities for use that expired with the new zoning plan, even though you could see that the use would not be allowed for much longer?

This issue concerns the so-called passive assumption of risk, about which the Division in its Dec. 4, 2019, ruling once again clearly states that there are high requirements for such "blame".

What was going on?

In this ruling, a parcel of land was zoned "Business" with a "retail" designation. Pursuant to a new zoning plan, the designation was dropped.

The owner of the parcel has asked the municipality for compensation for planning damage, as his parcel has lost value due to the reduced possibilities for use. This is because the possibility of developing an independent retail function (such as a supermarket) results in a (substantially) higher value than the possibilities offered by the new zoning plan.

According to the college, it was foreseeable to the owner, based on the municipal retail policy, that retail would no longer be allowed on his parcel for a long time. Since the owner made no concrete attempt to utilize the use possibilities, he passively accepted the risk that these possibilities might expire, thus lacking the basis for the request for planning damages. Both the court and the Division think otherwise.

Plan damage

To assess an application for compensation for planning damage, it must be examined whether the applicant has been placed at a disadvantage as a result of the relevant change in the planning regime and is suffering or will suffer damage as a result. To this end, the change in question, which is claimed to have caused planning damage, must be compared with the old planning regime. What is important here is not the actual situation, but what could be realized at most under the old planning regime, regardless of whether realization has taken place (see, inter alia, the judgment of September 28, 2016).

In this case, the Stichting Advisering Bestuursrechtspraak (the StAB) issued an advisory opinion at the request of the district court, in which it ruled, among other things, that the lapse of the possibility of realizing retail trade (such as a supermarket) on the parcel qualifies as a planning disadvantage. A disadvantage that qualifies as very severe. After all, supermarkets are guaranteed a high turnover under normal circumstances. For this reason, the price per square meter they are willing to pay is substantially higher than for other forms of retail, such as clothing and shoe stores.

Passive assumption of risk

In its ruling of September 28, 2016, the Division explained that the risk of realization of planological disadvantage is deemed to have been passively accepted if there is foreseeability and if no concrete attempts have been made to realize the building and use possibilities that have lapsed under the new planning regime. A reasonably thinking and acting owner may be required to do the foregoing, as of the reference date of foreseeability.

With regard to the foreseeability of the lapsing of possibilities for use, the Division ruled in this judgment that it is insufficient that new municipal policy merely refers to old policy, while that old policy has not been applied to a specific parcel. What is important is that the new policy must contain a concrete intention on the basis of which a reasonably thinking and acting rightholder must again take into account the chance that the planning situation on his parcel could change in a direction unfavorable to him.

According to the Division, there was no foreseeability in this case, because with the entry into force of the old zoning plan, contrary to the policy in force at the time, the designation "retail" came to rest on the parcel, while no retail trade was established there at that time. Establishment of new retail trade was thus expressly permitted on that parcel.

Conclusion

If a municipality suffices in new policy with a single reference to old policy, while that old policy for a specific parcel has not been translated into a subsequent zoning plan, that old policy has no value. In that case, no foreseeability of an amendment of the planning regime based on the old policy can be assumed. If there is no foreseeability, there can also be no passive assumption of risk.

Always be alert when a municipality objects to your passive assumption of risk. As this ruling shows, this can (still) lead to a substantial claim for compensation for planning damage. In this case, for example, the municipality was ordered to pay €612,750 to the landowner.

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