In today’s article we will introduce you to the solutions for the possibility of repealing the local zoning plan. This is because it happens that the provisions of local plans stand in the way of the plans of property owners and derail, although often only seemingly, their plans. So, we invite you to read on!
What is a local zoning plan?
A local zoning plan, is a resolution of the municipal council that regulates land use in a certain area of a municipality. MPZPs are most often drawn up for larger areas, but there are local plans that cover, for example, one street or even one plot of land.
An MPZP consists of:
- a descriptive part – this is the content of the resolution, in which specific regulations on the possibility of land development are indicated, such as the permissible area of development, the height of development, the angle of roofs, the designation of green areas or the introduced ban on development;
- the so-called graphic annex, i.e. a set of maps on which the provisions of the descriptive part of the MPZP have been transferred in graphic form for each property located in the area covered by the MPZP.
The MPZP plays the most important role in spatial planning in the territory of a municipality, since the regulations contained therein must be adhered to by the owners of all properties, which may limit investment intentions, and in extreme cases – even exclude them.
Annulment (repeal) or amendment of the local zoning plan
Property owners in the event of a conflict between their investment intentions and the provisions of the MPZP wonder whether there are any possibilities to amend or even repeal the MPZP, so that it is possible to carry out investments in accordance with their own plans.
The first solution is to declare the MPZP invalid by filing a complaint to the relevant Provincial Administrative Court (WSA) against the resolution introducing the MPZP. Below we will describe the conditions that must be met to successfully challenge such a resolution.
Analysis of the MPZP for the existence of violations of law
Before filing a complaint, it is necessary to analyze the entire resolution for the existence of violations of law that give rise to the possibility of successfully challenging an MPZP. This is because the complaint to the WSA must contain allegations justifying the declaration of invalidity of the MPZP in whole or in part.
In the case of a request to declare an MPZP invalid in its entirety, such a premise is the municipality’s violation of the planning procedure (e.g., lack of consultations or lack of opportunity to submit comments on the draft MPZP). Such violations of the law in an MPZP occur quite often, and administrative courts, when considering a complaint, also take such violations into account ex officio.
The most common violations cited by complainants are:
- inconsistency of the provisions of the MPZP with the Study of Conditions and Directions for Spatial Development (the Study);
- exceeding planning authority;
- violation of property rights;
- violation of constitutional principles (including the principle of equality).
The first of the violations cited above is of a concrete nature, since by comparing the provisions of the Study, which the municipality must comply with when enacting an MPZP, with the content of the LSDP, it is easy to identify whether or not a violation exists.
The other violations listed above are evaluative in nature, and therefore basing the allegations of the complaint on them requires careful and elaborate argumentation. This is the only way to convince the court of our reason, and from our experience we know that this is possible.
Legitimacy to challenge an MPZP
Before filing a complaint against an MPZP, it is necessary to verify whether we are entitled to challenge an MPZP. According to the general rule in the Law on Municipal Self-Government, anyone whose legal interest or right has been violated by a resolution or order of the municipal authorities is entitled to challenge a resolution of the municipal council. This regulation is highly evaluative, but the practice and jurisprudence of administrative courts have developed guidelines as to who can challenge an MPZP. The main entity entitled to challenge an MPZP is the owners of real estate located in the area covered by the MPZP, with the proviso that a specific violation of the law must directly affect the legal situation of that person (e.g., the establishment of a ban on development on a plot belonging to the complainant). The owner of a given property cannot challenge an MPZP if the provisions of the MPZP do not affect his legal sphere in a manner inconsistent with the law. Therefore, the complaint must demonstrate that the alleged violation of the law directly affects the situation of the complainant, and thus there is a legal interest in challenging the MPZP. It should be emphasized that a property owner can challenge an MPZP regardless of whether he acquired the property before or after the MPZP came into force. Perpetual users of real estate also have the possibility to challenge an MPZP. The jurisprudence of administrative courts indicates that in some cases, for example, real estate lessees can challenge an MPZP, however, these are isolated cases and, as a rule, lessees are not entitled to such a right.
When to challenge an ICZM
The law does not set a deadline within which to file a complaint against an ICZP, and therefore it can be done at any time.
The effect of declaring an MPZP invalid
If the court agrees with our objections and accepts the reasoning invoked, the MPZP will be declared invalid in whole or in part. The effect of such a ruling is that the MPZP is not valid with ex tunc effect (i.e., from the beginning) for the entire area covered by the plan or a specific property. This allows such an area to be developed in accordance with the owner’s intentions, after taking into account the requirements of the zoning decision.
The second option is to amend the MPZP. This can only be done by the relevant municipal council by adopting a new resolution. However, this process is very lengthy and expensive. This is because the planning procedure consists of a number of activities, such as design, consultations with residents and relevant institutions, or consideration of comments submitted by residents, which requires the dedication of a considerable amount of time and the involvement of significant financial resources on the part of the municipality. Therefore, changes to the MPZP at the request of residents occur very rarely.
Our experience in MPZP annulment proceedings
We have many years of experience in MPZP annulment proceedings, including the possibility of challenging MPZPs. We have also successfully conducted numerous court proceedings, both before provincial administrative courts and the Supreme Administrative Court (NSA).
A good example of our experience is leading to the annulment of several MPZPs in one of the largest Polish cities, due to the municipality’s unlawful only possibility to develop a number of properties, without the existence of legitimate factual and legal grounds.
If MPZP conflicts with your investment plans, we encourage you to contact our specialist.
