Does a policy proposal stating that a location offers opportunities for peripheral functions mean that other functions may no longer be made possible there? The Administrative Law Division of the Council of State (hereinafter: the Division) ruled on this question in a decision dated August 30, 2017 (ECLI:NL:RVS:2017:2363) on a zoning plan for the relocation of a Boni supermarket.
Relocation supermarket
On Urk, the plan was to move the Boni supermarket some 400 meters to a new location. This included doubling the retail floor area to about 1,100 square meters of retail floor area. Operators of competing supermarkets, among others, came out against the zoning plan adopted for this purpose.
Municipal policy
After the normally more exciting grounds of appeal about, among other things, the number of parking spaces to be realized and the ladder for sustainable urbanization are successfully withstood, it comes up that the Urk Structural Vision for the Lemsterhoek area, in which the plan area is located, states:
"The area can be seen (due to its unique location) as a transition area between the residential environment (residential areas to the north) and a working environment (business park and industrial area to the south). As such, the area offers opportunities for the establishment of peripheral functions. Peripheral functions are defined as functions that in terms of their nature, scale, character and use do not fit in the main and neighborhood centers or the residential and amenity area. This could include hospitality, retail, parking, etc."
This consideration in the structural vision does not show that other than peripheral functions are not allowed on the site. The structural concept only describes that this location offers opportunities for peripheral functions. However, that is not yet a ban on other functions.
Nevertheless, the Division rules that this plan conflicts with the structural vision because the planned supermarket does not qualify as peripheral retail. However, the fact remains that the structural vision in itself does not show that other than peripheral functions are a no-go. Thus, the Division's judgment in the Boni ruling is rather surprising. With proper justification and explanation of the policy pursued, the city council should normally have been able to avoid this conclusion.
This judgment also seems to deviate from previous judgments, such as in the case about a zoning plan for the establishment of a Hornbach in Zwolle (ECLI:NL:RVS:2016:732). There, a development that was still described as not obvious in municipal policy was nevertheless allowed because that development was not excluded in that same policy and the council had pointed that out.
Motivate well
The ruling on the Boni illustrates that municipal policy should not be treated too lightly when determining the zoning plan. Even if the structure vision does not include a clear no-go, the policy principles can be reason for the Division to shoot down a zoning plan that does not directly fit within the opportunities identified in the structure vision.
As an initiator, therefore, make sure that when preparing the zoning plan, sufficient attention is paid to the relationship to municipal policy, even if that policy does not, at first glance, block the development. This can be done, for example, by including an extensive justification in the plan explanatory statement and pointing out at the hearing the space offered by the policy.
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