Is the government a reliable partner?

The municipal council has great freedom to adopt a zoning plan, but also to ultimately refuse to adopt a zoning plan. This is because the municipal council has policy discretion when deciding to adopt a zoning plan.

But this freedom of choice is not unlimited. Especially when there is an agreement between an initiator and the municipality about a development and there are no insurmountable spatial objections to that development, the Administrative Law Division lets contractually agreed arrangements weigh heavily. This was reaffirmed in a recent ruling.

The practice: an agreement, but not (by definition) bound

In practice, developers often enter into an (anterior) agreement with the municipality, in which the municipality assumes the (best efforts) obligation to make efforts to make a development possible. However, such an agreement does not necessarily bind the municipal council to ultimately adopt a zoning plan that makes the agreed-upon development possible.

Indeed, it is established case law of the Division that such an agreement cannot lead to "an obligation on the part of the council to assign to land a zoning that the council considers not in accordance with good spatial planning. This is contrary to the system of the Spatial Planning Act, according to the Division.

However, the municipal council must include such an agreement in its considerations about whether or not to adopt the zoning plan. In doing so, the municipal council will have to show clearly how the interests of the initiator have been involved in the decision. Should the municipal council not wish to cooperate, it is obliged to provide spatial reasons for doing so.

An agreement with the government: a strict(er) judicial test?

Three examples illustrate that the Administrative Law Division critically reviews an obligation of effort that a municipality undertakes.

1. The first example concerns a ruling(ECLI:NL:RVS:2015:1372) on the realization of approximately 100 dwellings at the Hoge Wei site in the municipality of Overbetuwe. This realization was the subject of an agreement with a best-efforts obligation for the municipality to expeditiously complete the required procedures.
   Once the detailed plan was submitted for adoption, several council factions turned against the plan because of (mainly) its massiveness. This while the location was in line with municipal policy, had been deemed acceptable from an urban development point of view (earlier) and the council had no objections to housing on the Hoge Wei, but in this case it was only the massiveness of the plan that was the problem. Under these circumstances - with the concluded agreement in mind - the city council could not raucously proceed to refuse determination.
2. The second example concerns a ruling by the Division(ECLI:NL:RVS:2014:3925) on the realization of a new office building with showroom in Eindhoven. An agreement had been concluded with a best-efforts obligation for the municipality to make the realization possible. Again, the city council ultimately refused to adopt the plan. The council gives two reasons for this. Realization of the office building would lead to vacancy and, given the large number of views submitted against the plan, it lacks public support.
   Again, the Division ruled that the council could not simply ignore the agreement entered into. After all, an increase in vacancy is not by definition unacceptable. This concerns a justification question, in which it is important that the plan fitted within municipal policy. Social support is also not relevant to the question of whether the plan aims at good spatial planning. That is not a spatial motive. Again, according to the Division, the municipal council could not rabidly refuse adoption. It has since decided to adopt a zoning plan in which the office buildings are provided for(ECLI:NL:RVS:2016:2095).
3. The third example can be found in a ruling by the Division a few months ago(ECLI:NL:RVS:2017:615). In that case, the initiator had been in discussions with the municipality for years about the realization of housing in exchange for closing a gas station. Again, the arrangements were laid down in an agreement. Then the municipal council refused to adopt the zoning plan. Reason: the homes would not contribute to the village entrance (anyway). The city council - as is also required - puts forward a number of spatial arguments for this.

The Division considers these spatial arguments (still) insufficient to refuse to adopt the plan. In this case, too, the Division ruled that insufficient weight had been given to the agreement entered into. The present plan was in line with municipal policy, did not run up against insurmountable spatial objections, the initiator had already settled for fewer dwellings than in previous plans, and in the agreement also waived any compensation for planning damage. Under these circumstances, the municipal council - despite the fact that there were also a number of spatial arguments against it - could not refuse to adopt.

Conclusion

Thus, despite the fact that the municipal council has great policy latitude when deciding on zoning plans, an agreement entered into cannot be rashly ignored.
It follows from case law that if, especially in situations with a rich history, municipal policy does not stand in the way of a development and there are no insurmountable spatial objections to a plan, the administrative judge will give weight to contractually agreed arrangements. True to the word given.

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