Zoning ordinances determine what building and use possibilities apply to you. If your plan fits within those possibilities, a permit must be granted and no further consideration is possible. This means that at the time a zoning plan is adopted, the consequences of permitted developments must also be clear and enforceable.
This may sound logical, but the fact that this is far from always going well is demonstrated once again by two rulings by the Administrative Law Division on September 25 and 26, 2018.
Residential construction and (full) flexibility
The September 26 ruling deals with the redevelopment of the site of a former care complex in Castricum. To this end, the municipality has adopted a plan, which allows a maximum of 15 homes to be built on this site.
The plan contains few specific building regulations. The municipality states that it was a deliberate choice to offer a lot of flexibility. In fact, a so-called quality team of the municipality will ensure that the buildings fit in well with the surroundings, whereby the quality team will assess whether the plan fits within the Image Quality Plan of the municipality. This is also laid down in a cooperation agreement between the developer and the municipality.
The Division does not accept this approach. Good spatial planning and legal certainty are not compatible with such a global plan, according to the Division. The Division notes that the plan allows much more than the developer wants. For example, a maximum building height of 10 meters is already sufficient for the developer, while 15 meters building height is now allowed. No justification has simply been given for this.
The Department is also quick to dismiss the cooperation agreement, which defines the role of the quality team. In fact, no link has been established between the cooperation agreement and the plan. The steering desired by the college through the quality team is thus not secured under public law and thus not enforceable by third parties.
The decision to adopt the plan was therefore annulled by the Division and the Municipality of Castricum will have to draw up a new plan for the redevelopment of this location. In doing so, the municipality will have to pay more attention at the front to the specific infill of the planning area and - if necessary - include safeguards in the plan that are enforceable to guarantee the spatial acceptability of the plan.
[campaigns]
Don't judge acceptability of derogation scheme only when using it
In the Sept . 25 ruling, the Division's preliminary injunction judge was asked to suspend a certain regulation in a zoning plan of the municipality of Drimmelen.
This zoning plan allows a mini-camping site of a maximum of 25 camping spaces to be permitted at a certain location in addition to agricultural operations. The plan also includes an within-plan deviation authority for this location that - under a number of further conditions - a permit can be granted to allow a maximum of 50 camping spaces.
In adopting the zoning plan, the municipality did not investigate whether allowing 50, rather than 25 camping spaces, at this location is even spatially acceptable.
The Division is quick to rule on the acceptability of this plan. Indeed, contrary to what the council assumes, such a consideration may not be passed on to the application of this deviation power. After all, the inclusion of an within-plan deviation power in a zoning plan means that its use is, in principle, considered to be in accordance with good spatial planning. This means that the council must already have weighed up whether this is the case when the plan was adopted.
Since that consideration has not taken place, the decision to adopt the plan, insofar as it concerns the derogation power for this specific location, is suspended by the Division.
Conclusion
Flexibility in a zoning plan is often desired. Flexibility is also certainly possible, but make sure that proper research is done on the front end to ensure that the flexibility allowed is also spatially acceptable.
As an aside, it can be noted that aspects such as flexibility and globality will also play an important role in the Omgevingswet (the Environmental Law) that is currently being prepared. However, even then it is my expectation (if there is no further moment of review) that the administrative judge will expect that the consequences of (a representative filling of) the maximum planning possibilities have been investigated.
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.
