Old zoning plans move with new care concepts

A building plan and the proposed use are tested against the (use) provisions of the zoning plan. If the plan complies with these rules, the permit is granted. If not, the permit is denied. This seems simple, but unfortunately the interpretation of the use provisions for healthcare real estate often leads to difficult discussions. Especially if the care concept is 'fitted' into an older, existing zoning plan. This while care real estate now, is often of an entirely different order than at the time the zoning plan was adopted. For example: a social zoning included in the zoning plan with the indication 'retirement home', does not immediately suggest that the area should be filled with a modern residential care concept. Last Wednesday, however, the Administrative Law Division ruled that under the given, current circumstances, three modern residential care buildings for seniors, each with 23 residential care units, could be built on such a zoning. This took into account the changing view of care, and the combination with housing. That offers opportunities.

A dispute over an environmental permit

What was involved. These proceedings concerned a dispute over an environmental permit granted for the construction of residential buildings with a total of 69 residential care units in the municipality of Rheden. Several parties challenged the granting of this permit, arguing that the intended use was not in accordance with the use rules of the zoning plan. The municipality was of the opinion that no such use was contrary to the zoning plan. This was followed by the municipality in the objection and appeal proceedings, after which the Division was allowed to consider the appeal.

A zoning plan from 1989 was still in effect at the site. The location was zoned "Social purposes" with the additional indication "retirement homes". That the use of apartments for exclusively residential purposes was contrary to the zoning plan was not in dispute. But what is possible within an "retirement home," if not defined in the zoning plan? Does a residential care building fall under that designation? According to the appellants, it could be inferred from the explanation of the zoning plan that no special residential uses, including housing for elderly care, were permitted at this location.

The zoning plan review: the track record

The Division is considering this issue, following its established pattern, which is broadly as follows:

1. Legally binding are the plan image with the accompanying plan rules. However, according to the Division, in this case, due to the lack of a definition of "retirement homes," it cannot be directly deduced from this, which use is allowed;
2. If a conclusion cannot be unambiguously drawn from the plan image and plan rules in isolation or in relation to each other as to what is permitted, the administrative judge involves the (legally non-binding) plan explanatory notes in the interpretation of a zoning plan. The Division notes here that the explanatory notes are also not (completely) unambiguous;
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 dictionary Van Dale.

The Division also consulted the Van Dale in this ruling. The Van Dale understands the term "retirement home" to mean "complex for the elderly." "Elderly complex" means "building or complex of buildings where the elderly are housed and cared for." According to Van Dale, "nursing home" means "home where people are cared for who cannot (no longer) care for themselves." Given these definitions, according to the Division, a retirement home provides housing and care for the elderly.

The building plan provides for housing for the elderly. But this still (still) does not clarify whether the intended use is in accordance with the zoning plan. After all, the Division states that it must also be assessed whether the care aspect characteristic of a home for the elderly has been sufficiently fulfilled and ensured in this case. Only then can the building plan be regarded as a home for the elderly within the meaning of the zoning plan, thus falling under the destination "Public Interest Use".

Changing views on care and housing are relevant in interpreting zoning plans

It is then interesting that the administrative law judge also indicated that, in testing whether the building plan can be classified under the social zoning, the changing views on and development in care are important. Indeed, according to the administrative law judge, these have led to the creation of more and more initiatives other than the traditional, more small-scale ones, in which care is offered in combination with more or less independent living.

Taking advantage of opportunities?

One could say that through this modern interpretation, the "residential dimension" creeps further into the zoning plan, particularly the social zoning. This is relevant and commercially interesting because "independent occupancy" is not allowed under the zoning plan. It's a fine line, though. In this ruling, therefore, the Division runs very specifically through how the care aspect is shaped. Ultimately, it concludes that there is such a degree of care that will be provided to the elderly in the residential complex that the care aspect has been sufficiently filled in and secured. The intended use is therefore in accordance with the zoning plan on site. Should the care dimension later be lost, enforcement action may be taken.

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