Retailer: be careful not to limit your uses (too far)!

In recent years, there has been a trend nationwide for municipalities to focus more on restricting uses. This is particularly evident in the retail sector. The main goal of municipalities is often to achieve a desired mix of functions at certain locations. But also to exclude certain functions at certain locations.

It is advisable to keep a close eye on what spatial developments are taking place in your municipality. And - if these developments are negative for you - do not sit still, but take action.

Zoning plan: good spatial planning

In the Netherlands, the zoning plan is the main instrument for implementing municipal spatial policy. A zoning plan lays down the building and usage possibilities of land and structures in a binding manner. If certain building or usage possibilities are permitted under a zoning plan, an applied for environmental permit that is consistent with it must be granted. Thus, if the municipality wishes to prevent the realization of certain building or use possibilities in the future, it will have to eliminate those possibilities.  

The basic principle is that a municipal council, when adopting a zoning plan, has freedom of policy to designate destinations and issue rules that the council deems necessary from the perspective of good spatial planning. The Administrative Jurisdiction Division of the Council of State tests the decision to adopt a zoning plan with restraint, but this does not mean that a municipality can go unrestrained in its way of zoning out building and usage possibilities. After all, good spatial planning must always be served by zoning.

The tendency to remove retail meters from the market

In many parts of the country, municipalities have become more vocal about limiting building and use options. For example, Amsterdam has adopted a zoning plan that amounts to "freezing" current retail establishments in the "tourist trade" in a certain part of the city. Not only is the use of premises to establish new tourist stores in them no longer possible, but also expansion of existing tourist stores is sometimes made impossible, whereas this was possible in previous plans. It can certainly not be ruled out that such a curtailment will lead to (considerable) damage to the property owners.

But this trend can also be observed in the rest of the country. In Duiven, for example, a zoning plan has been adopted that makes it impossible for three supermarkets to enlarge, whereas the previous zoning plan did offer that possibility. After adoption of the zoning plan, enlargement is only possible if the municipality (the college) is willing to grant an environmental permit in deviation from the zoning plan. In Leeuwarden, a preliminary zoning plan was recently made available for inspection, which also removes a considerable number of "unused meters" from the market. Existing use is respected, but virtually all unused possibilities are removed. This applies not only to retail meters, but also, for example, to hospitality and office meters.

The question is whether taking away existing opportunities provided by the zoning plan is just possible. And whether you should just agree to it.

Bottom line: no rights can be derived from a zoning plan

The Administrative Jurisdiction Division, which adjudicates an appeal against a zoning plan, takes the established line that, in general, no permanent rights can be derived from an applicable zoning plan and that a municipal council may establish other zoning and rules for land on the basis of changed planological insights and after considering all the interests involved. This therefore also applies to zoning out certain possibilities. A standard consideration of the Division on limitation of rights is usually that a limitation of rights is in principle acceptable if there are no concrete plans from an interested party and there are changed policy insights on the part of the council.

Opportunities to prevent curtailment of building and use functions

Although there is the necessary freedom on the municipal side, there are ways to prevent curtailment or firmly challenge it.

Option 1: make timely claims for construction and/or use opportunities

Since it is often the case that it can be inferred from municipal spatial visions and policies that building and use possibilities at certain locations are under a magnifying glass and may be curtailed, it is advisable in such a case to consider as soon as possible whether - before plans are submitted for public inspection - a claim should be made for existing building and/or use possibilities.

If that claim (e.g., the submission of an application for an environmental permit) is made before a draft zoning plan is made available for review, the presumption is that the requested opportunities will also be included in the new zoning plan and thus preserved.

Option 2: Question whether the Services Directive allows containment

For some years now it has been clear that restrictions on (retail) uses, such as the use of a branching scheme, must comply with the legal framework contained in the Services Directive.

Briefly, this framework means that containment is allowed only if three conditions are met:

1. containment must not discriminate;
2. the curtailment must be necessary, meaning the curtailment must be justified for an overriding public interest reason;
3. the restriction must be proportionate: the restrictions must be appropriate to achieve the objective pursued, applied coherently and systematically, and they must not go beyond what is necessary to achieve that objective. The objective cannot be achieved by other less restrictive measures.

The Division charged the authority imposing the curtailment with the burden of proof: substantiating the proportionality of the curtailment with concrete, objective and site-specific data.

In short: a municipality has the necessary homework to do before it can proceed to (severe) restrictions on the possibilities for use. Whether a municipality complies with this homework assignment will have to be assessed on a case-by-case basis, but it is clear from the case law of the Administrative Law Division that a test of compliance with the Services Directive is probing.

Conclusion

Since there seems to be a tendency for municipalities to restrict building and use options in zoning plans, it is advisable to be alert to this. By developing plans in time and applying for an environmental permit, curtailment can be prevented (at least partially).

But even if there are no concrete plans, the question is whether containment can stand the (legal) test of criticism. What is clear is that for (large-scale) containment, a municipality must come up with a well-founded story. And that cannot always be given.