Avoid delay: be keen on clear regulation in zoning plan

An October 4, 2017 Administrative Law Division ruling (ECLI:NL:RVS:2017:2684) shows once again that the lack of a clear regulation in a zoning plan can lead to years of legal (unnecessary) proceedings.

What was going on?

These proceedings concerned a dispute over an environmental permit granted for the construction of 3 residential buildings with a total of 69 residential care units in Rheden. Several parties challenged the granting of this permit, with different arguments that the intended use was not in accordance with the rules that were included in the zoning plan.

The college argued that there was no use contrary to the zoning plan. In the objection and appeal process, the college was followed, after which the Division had to consider the appeal.

Method of explanation of zoning plan

The Division faces the question of whether the intended use is in accordance with the zoning plan. The site was zoned "Social purposes" with the further designation "retirement homes."

The problem was that the term "elderly care homes" was not defined in the zoning plan. According to the appellants, it could be inferred from the explanation of the zoning plan that no special housing, including housing for the care of the elderly, was allowed at this location.

The Division is considering this issue, following its established pattern:

1. Legally binding are the zoning map with the accompanying planning regulations. According to the Division, it is not possible (due to the lack of a definition of "retirement homes") to deduce directly from these what uses are permitted.
2. If a conclusion cannot be unequivocally drawn from the plan map and plan rules in isolation or in relation to each other, the Division considers the (legally non-binding) plan notes when interpreting a zoning plan.

The Division notes that the explanation is not (fully) unambiguous and therefore does not follow the appellants' argument that it follows from the explanation that the proposed use is contrary to the zoning plan.

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 (thick) Van Dale.

The Division is also looking to the Van Dale in this ruling. The Van Dale understands the term "retirement home" to mean "complex of elderly persons." "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 (anymore) care for themselves." Given these definitions, 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.

Care aspect adequately completed and insured

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 secured in this case in order to be able to designate the building plan as a home for the elderly within the meaning of the zoning plan, thus falling under the zoning "Public Interest Use".

In this ruling, the Division runs through very specifically how the care aspect has been designed and ultimately 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 adequately filled in and ensured. The intended use is therefore in accordance with the zoning plan on site.

Conclusion

This ruling thus shows that in the absence of a clear regulation in the zoning plan, years of legal proceedings on the interpretation of a zoning plan can ensue with associated delays.

In the end, the granted environmental permit in this ruling remains intact, but more than three years of litigation were spent to clarify the interpretation of the zoning plan.

Therefore, always be alert to whether the regulation contained in a zoning ordinance on your land provides you with adequate security.

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