When a zoning plan includes an obligation to elaborate, the Municipal Executive must in principle draw up a development plan. In the context of an appeal against a detailed development plan, it may be questioned whether the detailed zoning is in accordance with the detailed development regulations in the (parent) plan and insofar as those regulations leave room for this with good spatial planning. The planological acceptability of the zoning to be detailed is a given. If the parent plan has the zoning 'Residential', the acceptability of that zoning in the detailed development plan is therefore given. But what if, after adoption of the parent plan, the detailed development plan area has been used as an 'emergency shelter' for parking on behalf of the shopping center included in the same parent plan? The Division ruled on this today.
Parking and development plans on edge
The discussion of the parking justification for development plans was brought to a head in Vleuten, where the development plan area included in the master plan now actually provided for a temporary, additional parking lot with 140 parking spaces. This area was created because of the parking and traffic congestion around the shopping center also included in the master plan. With the detailed development plan, this parking lot disappears, to be replaced by a housing program with 95 homes, with a total calculated parking requirement of 143 parking spaces.
The property owner of the adjacent shopping center appeals against the adoption of the development plan, arguing, among other things, that no study was improperly conducted on the impact of the elimination of the additional parking lot on the shopping center
The parent plan did not provide for a parking lot and therefore the effects of the realized temporary parking lot could not be considered
In fact, of course, the property owner of the shopping center does have a point. A large (temporary) parking lot will disappear, apparently needed as an emergency overflow, which may not have been (properly) foreseen when the master plan was adopted. If 95 houses are built at the site of the emergency overflow, the parking situation will certainly not improve.
The College takes the position that the development plan does not create an unacceptable parking burden. This is because, according to it, the shopping center has already been provided for in the parent plan and, as part of the relevant procedure, it has been calculated that, without using the temporary parking lot, the parking needs of the shopping center can be met. Therefore, according to the college, the elimination of the temporary parking lot for the shopping center does not need to be assessed as part of the expansion plan. And since the housing program, according to a calculation/parking balance, provides for the absorption of its own parking needs, the detailed development plan complies as far as the parking component is concerned.
The positions thus diverge in that the property owner relies on the actual situation in the area, while the college takes a "more legal" approach to it.
The Administrative Law Division - thankfully - follows the college's lead. Although the Division first noted that the existing parking lot was being used for the benefit of the shopping center located outside the plan area of the development plan, it was also noted at the hearing that the land included in the parent plan was not zoned for such a use (zoning 'residential - to be developed' and the indication 'maximum number of residential units: 120'). Thus, the existing parking lot was in violation of the parent plan. In addition, the Division found that the elaboration in which the existing parking lot would be zoned as such was also not permitted under the parent plan. In addition, there are no circumstances on the basis of which the planning acceptability of this elaboration zoning in the parent plan should not be taken as given. From this, the Division ultimately concludes that the Municipal Executive should not have seen any reason to investigate the effects of the disappearance of the existing parking lot for the shopping center when developing the zoning 'residential - to be detailed'.
Parking requirements of development plans: the representative fulfillment of the maximum possibilities of the development plan
This does not mean that the substantiation regarding parking does not have to be addressed when the detailed development plan is adopted. In this case, when adopting the detailed development plan, the college did have to assess whether the chosen layout of the plan area with 95 dwellings would not lead to an unacceptable increase in parking pressure around the adjacent shopping center. In determining the parking demand generated by the detailed development plan, the college must assume a representative filling of the maximum possibilities offered by the detailed development plan.
Given the criterion of representative interpretation of the development plan, the debate then focuses on whether the parking requirement/number of parking spaces provided by the college is representative of the possibilities in the development plan. These are often difficult discussions and the outcomes are less predictable.
What is "representative" here?
This is where things ultimately go wrong for the municipality. In this case it went wrong because the development plan provides by right for certain forms of a home occupation or business and the use of homes for a bed & breakfast is also allowed. This has consequences for the parking standard to be applied. A "regular" standard for homes will not suffice. But with what? In other words, what is representative?
The Division stated first that the Board did not have to assume that each of the 95 dwellings would be used for a home occupation or business and, in addition, for a bed & breakfast. In the opinion of the Division, that is not a representative fulfillment of the maximum possibilities offered by the development plan (rather a maximum planning fulfillment). What it is, we may know after the final judgment, because the Division gives the municipality a remedial order to investigate this. Remarkably, at the conclusion of the ruling, the Division goes into considerable detail about the "flavors" that are available with regard to a recovery.
In the most objectionable case, the municipality will have to restrict the possibility of a home occupation and/or bed and breakfast, given the parking requirements, but it is expected that a remedial decision will allow the development plan to stand.
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