The problem
The Environment Act provides that rules from old zoning plans can only expire all at once.
This provision was included to ensure that municipalities will eventually transfer all zoning plans into an environmental plan and because it is not technically possible to let loose rules from old plans lapse independently of each other.
For practical purposes, however, this is less practical. A few examples:
"Municipality X would like to build a new residential area. The problem is that company X is too close to the planned site and makes too much noise. After much deliberation, a new site for company X has been found and the move begins. Yet the residential area cannot be built until the rules in the zoning plan, which say that such a company can sit at the old location, expire. Indeed, if those rules do not expire, a new company may come in and keep future residents from sleeping."
Another situation:
"Municipality Y wants to build a new recreational area with playgrounds and sports fields. The site they have in mind for this is currently zoned for agriculture. A farmer uses an adjacent area to grow flower bulbs using pesticides. After talks (and a grant), the farmer has agreed to start producing without crop pesticides from now on. However, the recreation area cannot be put to use until the rules in the zoning plan that allow agricultural use with crop pesticides expire. If these rules do not expire or are changed, there is no guarantee that pesticides can still be used at some point, preventing the recreation area plan from going forward."
Under the old system, these problems could be solved by adjusting some of the rules without having to create a completely new plan. Depending on the metaphor that was in vogue at the time (and what was being regulated), these plans were usually referred to as "umbrella plans," "postage stamp plans," "spot plans" or "collection plans. Some municipalities currently think - mistakenly - that this is no longer possible under the Environment Act and tell developers that an entirely new environment plan must be drawn up for a larger area than the project. However, this is by no means always necessary.
The solution
Since you can't just delete individual rules and not let rules lapse, municipalities can use a clever work-around: "priority rules.
The idea behind this is as follows: the old rules do not expire, but new rules are built over the old rules that take precedence over the old rules. That way, there is no conflict with the Environment Act. To make that work in practice, however, there are a number of points of interest.
Case study
This technique has not yet been widely used in practice. So far, there seems to be only one example in the Environment Plan of the Municipality of Meijerijstad. In the north of Sint-Oedenrode, a butcher shop was permitted at a location where there had been no butcher shop for almost 10 years. The environmental zone of this butchery "on paper" was impeding new residential development. The Municipality of Meijerijstad could not repeal the specific rule that allowed the butcher shop in the former zoning plan without replacing all zoning rules at this location as well. In addition, there was now a meat cannery located at the location in question that wanted to continue the business owner in question. This meat cannery operates less of an impediment to the desired residential development than the butcher shop.
In simplified form, the way the municipality plans to handle all that looks like this:
"Article 23.1 Permitted Business
Notwithstanding [provision in zoning plan], which is part of the temporary part of the environmental plan, at location x is permitted: a meat canning plant.
Article 23.2 Priority provision
1. If Article 23.1 conflicts with [provision in zoning plan], Article 23.1 shall take precedence over what is stipulated in the zoning plan that is part of the temporary part of the environmental plan.
2. In all other respects, the temporary part of the environmental plan shall remain in full force at location x.
Article 23.3 Prohibitions
In deviation from [provision in zoning plan] that is part of the temporary part of the environmental plan, it is prohibited to operate a butcher shop at location x.''
In the opinion of Mink Oude Breuil, the Municipality of Meijerijstad is on the right track here with the way they have incorporated the priority rules into a plan. Still, in his opinion, it would seem better if Article 23.2 also stipulated that the prohibitions of 23.3 take precedence over the rules in the zoning plan, so that there can no longer be any discussion about them.
What can still be debated is whether the courts will find this permissible.
Risks
While priority rules seem like a convenient solution to get around the limitations of the Environment Act, they also carry risks. For example, there is a risk that this approach, however creative, will be seen by the courts as too much of a detour to get around the Environment Act. After all, the law aims to eventually fully integrate rules from old zoning plans into a new environmental plan. If the impression arises that municipalities are using the priority rules to hold on to old zoning plans for a long time, it may well be that judges will at some point put a limit on this method of working. However, the question is in what way judges can do that, since this method of operation does not violate the law. The answer to that question is expected to be at least a year and a half away.
There is also the practical risk of complex regulations. If municipalities continually build new right of way rules over old ones, this can lead to a complicated search grid, making it increasingly difficult for developers, permit issuers and other stakeholders to determine which rules actually apply. Not only can this be time-consuming and costly, it can also affect legal certainty. Given the great urgency to enable new housing development, applying priority rules to make housing development possible could be justified in certain situations.
Conclusion
Priority rules offer a practical solution for updating old zoning plans under the Environment Act, especially for urgent projects such as housing. However, many municipalities seem unaware of this option, leaving opportunities unrealized. Developers would do well to actively discuss this possibility in their consultations with municipalities. However, they should keep an eye on the risks, such as possible legal challenges and increasing regulatory complexity. By dealing with these carefully, they can jointly work on solutions that offer both flexibility and legal certainty, without unnecessary delays or complications.
