The well-known "crumb list" or "crumb case list" makes it possible, via a relatively simple and short procedure, to grant an environmental permit for the use of existing structures contrary to the zoning plan. An Aug. 7, 2019 ruling by the Administrative Law Division of the Council of State makes it clear that this power can also be used if it is necessary to deviate from the building regulations.
Environmental Law Decree
Section 4 of Annex II of the Environmental Law Decree (hereinafter: Bor) is also known as the 'breadcrumb list'. The scope of art. 4 is now so large, however, that it is no longer only used to grant "crumbs". With art. 4, part 9, Annex II of the Bor, it is possible to grant an environmental permit via a relatively simple and short procedure for the use of existing buildings in deviation from the zoning plan. The accompanying condition states that this may not involve construction activities that increase the built-up area or building volume. You may, however, simultaneously expand the built-up area with the application of another power (e.g., Art. 4, section 1), for example, for the purpose of an attached structure.
The literal text of art. 4, section 9 clearly refers to the permitting of uses contrary to the zoning plan. Consider, for example, permitting housing in an office zoning or permitting a supermarket in a retail zoning where supermarkets are explicitly excluded. In the legal context, this is called use "in the narrow sense. Section 4, part 9 Annex II Bor can therefore be used to deviate from the use provisions and zoning description in the zoning plan.
Deviation from building regulations
A zoning plan contains building regulations in addition to use provisions. The question was whether article 4, section 9 also offers a possibility to deviate from building regulations in a zoning plan. Building regulations do not pertain to use "in the narrow sense" (the actual "use"), but building in the legal context does qualify as use "in the broad sense.
In the Aug. 7, 2019 ruling, the Division makes it clear that it can.
Ban on merging properties
In that case, the zoning ordinance prohibits the merging of buildings. That restriction is clearly stated as a building rule.
The college took the position that with the realization of the breakthrough, the buildings were merged into one large building. This would have increased the building volume and building area of both buildings. According to the college, this would mean that art. 4, part 9 Annex II Bor cannot be applied.
The Division does not follow the College's position. The Division first states that it is not relevant whether the extent of the use changes in terms of area or content. According to the Division, the restriction included in Article 4, Section 9, Annex II Bor that the built-up area or building volume may not be increased, only relates to an increase in physical construction. Since the merger of the premises in question by realizing the breakthrough on the first and second floor only concerns an indoor intervention, there is no increase in the built-up area or building volume, according to the Division.
Environmental permit by operation of law
In this particular case, the result is that the Board erred in ruling that Section 4, Part 9 of Annex II Bor is not applicable to the application submitted by the appellant. As a result, that application was not decided on in time and an environmental permit was created by operation of law. Although the city council apparently considers this an undesirable development, it should announce the environmental permit granted by operation of law within two weeks of the ruling.
Review in objection
Incidentally, it should be noted that this is not a done deal. After that publication, objections can be made by interested parties. In that case, a full reconsideration will take place. So it could very well be that in the reconsideration, the college still refuses the environmental permit, if an objection is made.
Transformation also for building codes
This ruling has made it clear that the transformation provision in Section 4, Appendix II Bor can also be used to deviate from the building regulations in the zoning plan. This ruling thus indicates once again that the possibilities of the non-limited case regulations are great. And the advantage of the minor cases regulation is clear: a shorter decision period, an environmental permit by operation of law if a decision is not made in time, and the fees are often considerably lower!
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