Provide the right destination

Healthcare and healthcare real estate are constantly changing. Now that traditional forms of care, such as nursing homes, are under pressure and an increasing number of elderly people require care, all kinds of different forms of housing and care are being sought. Then the zoning plan also comes into the picture. From a legal point of view, it regularly turns out that it is not so easy to create the right planning frameworks for the various forms of housing and care.

More and more people are looking for ways to provide care other than in the widely known nursing homes. This could include forms of housing that are more or less independent, which may or may not require the purchase of care. It can be of great importance to local residents which target groups will live in that facility. The elderly, for example, also in the perception of local residents, have a different impact on the environment than addiction care, for example. The level of care and independence of living can also have spatial consequences. Jurisprudence has therefore repeatedly had to express its opinion in recent years on all kinds of different forms of independent living (whether or not) and related care. The key question is always: when is there still "living" and when must the zoning plan provide for an alternative use?

Uniformity

To create uniformity, zoning plans must follow the method of zoning as elaborated in the 'Standard Comparable Zoning Plans 2012' (hereinafter: SVBP2012). Based on the SVBP2012, the function 'living' must actually be used for living and therefore, for example, a 24-hour rehabilitation center may not be made possible within that destination. After all, without unambiguity, it is much more difficult for a citizen to be able to determine whether within the 'residential' zoning it is actually possible to live alone. According to the SVBP2012, the function 'social' must be used for a care facility. Within that function, however, independent living is in principle again not possible. It is therefore sometimes difficult to find an appropriate zoning for the various intermediate forms.

Independence

In testing whether a zoning plan assigns the proper function and, by extension, a requested project fits within the zoning plan, the court looks at what will actually be performed on site. This includes the degree of independence of occupancy, the intensity of care and the obligation to purchase that care. This will include whether the residential form has a "predominantly caring character." It is also still important whether the zoning plan provides that a dwelling serves purely for the accommodation of one household. Even if this is the case, the Administrative Law Division of the Council of State has ruled several times that less traditional forms of housing can also be equated with a household. This requires a certain degree of connectedness.

Reviews

The Division has now ruled several times on various forms of care and housing. For example, the Division ruled that the housing of eight mentally handicapped persons at the home of an entrepreneurial couple fit within the zoning "residential" because all residents had their own daytime activities and had their own sitting/bedroom in addition to the communal facilities. According to the Division, the care provided by the entrepreneur couple was not of such a nature that it was predominantly caregiving in nature. In a case in which minors were cared for in a simulated family situation, there was a predominantly caring character, according to the Division, because the purpose of the care was focused on learning to live independently. Thus, that form did not fit within the zoning "housing. The reception of a maximum of 15 adults from detention, sheltered housing or social relief with support in order to live independently was considered by the Division to fit within the zoning "housing".

The renting out of twelve apartments to elderly people in need of care and their possibly non-needy partners, whereby the main occupant is obliged to purchase a minimum of fourteen hours of care per week, was judged by the Division to be appropriate within the zoning 'social and/or community purposes' in view of current developments in care. It was also important to note that although it could not be ruled out that the partner not in need of care could continue to live in the apartment after the death of the partner in need of care, this was unlikely in view of the high costs of the care to be purchased.

Broad zoning

It is therefore highly dependent on the circumstances of the case whether a form of residential care fits within the 'residential' or 'social facility' zoning. As care needs and financing are subject to change, it is advisable to zoning as broadly as possible wherever possible. In doing so, however, do not lose sight of the fact that such zoning may not be so broad as to conflict with the 2012 Standard Comparable Zoning Plans.

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