In previous blogs, we pointed out that it frequently happens that the municipal council, contrary to the preparations made by the college, eventually does decide not to adopt a zoning plan for a concrete initiative. In those blogs, we also discussed that if there is an agreement between the municipality and the initiating party, the decision not to adopt the zoning plan can face a critical judicial review. Especially if there are no (insurmountable) spatial objections to that development. This week, in that "series," there was a ruling by the Administrative Law Division in which the council's dissenting position passed the administrative law judge's scrutiny fairly smoothly. This case shows that if the council wishes to stick to its (spatial) policies and visions, the administrative law judge exercises a great deal of restraint in his review.
The controversial plan
An initiator had developed the plan to build a recreational home with a boathouse and a small harbor behind his own farmhouse. The zoning plan in force at the site did not allow this because of the zoning 'agricultural-cultural land'. An agreement was made with the college for the purpose of the development. Local residents could not agree with the plan and turned to the city council, after the municipal executive had defended the draft plan in a memorandum responding to views. The council decided not to adopt the zoning plan, basing its decision on the desire to preserve the open space at the site, the fact that the plan did not fit in with the village vision drawn up for the villages of Terkaple-Aegmaryp in 2016, and the lack of support in the village for the plan.
In short, the initiator argues that the council has been guided by emotions and that the village vision would not contain a paragraph on spatial planning. He further invokes the principle of trust, since there were regular consultations with the alderman and that the purchase agreement also states that the municipality is willing to provide planning cooperation. He further points out that he was entitled to trust that his investments would not have been in vain and the council would adopt the zoning plan.
The key in straight
Although the college prepares the adoption of a zoning plan, it is formally the council that adopts (or not) a zoning plan. The reliance on the principle of the protection of legitimate expectations fails - established case law - because the initiator has not made it plausible that expectations were raised by or on behalf of the council that the plan would be adopted. The agreement concluded between the municipality and the initiator, which includes a best-efforts obligation for the municipality, does not change this either. Referring to previous case law, the Division considers that an agreement cannot lead to the obligation of the council to assign to land a zoning that the council considers not in accordance with good spatial planning. The final decision on the adoption of a zoning plan may, depending in part on all the facts and interests (including those of third parties) that come to light in the course of the procedure, turn out differently from what was foreseen when the agreement was concluded. The agreement is, however, a circumstance that the council must take into account when deciding whether or not to adopt a zoning plan.
The council has also done the latter in this matter, after which the Division considers that the council could also reasonably take the position that for it spatial arguments against the initiative outweigh the interest of the initiator in adopting the zoning plan. The Division considers that it follows from the statement of defense that the initiative will result in the disappearance of a "valuable vista": "Such beautiful panoramic views are, according to the council, as stated in the village vision Terkaple- Aegmaryp 2015-2016, characteristic for the villages Terkaple and Aegmaryp. The council has taken as its starting point that this open space as well as this vista in Terkaple should be preserved." That alone is sufficient for the Division. The appeal ground that there is no support within the village for the plan, which may have been politically decisive, but in my opinion not spatially relevant, is therefore not up to the Division.
A good outcome?
Indeed, it is not up to the administrative law judge to pass judgment on whether the "grand views" are indeed "beautiful," yet cases like this where the council suddenly decides otherwise in defiance of the college remain "somewhat sour. Given previous rulings, litigating against such a council decision, especially in the existence of an antecedent agreement, may well pay off, but if the council sticks to its spatial policy on good grounds, it remains very difficult. Advice to the initiator: also remain "politically active" towards the council, even if the college cooperates in all respects.
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