Old buildings are increasingly getting a new function. An old school building becomes a restaurant in retro style, a dilapidated mansion revives as a hotel and an abandoned office building gets e and new life as a student complex.
Such a transformed building often still includes a disused piece of land. Years after a building has been given a new function, the need may arise to use the adjacent land. The old schoolyard could provide space for a summer terrace, the hotel wants a more spacious parking lot in the garden of the old mansion, the student complex could use some bicycle storage on an unused driveway.
Different planning rules may apply on the adjacent land, because the zoning plan assigns a different purpose to the land than to the building. In the past, a permit may also have been granted in favor of the transformation to deviate from the purpose of the building, but not of the adjacent land. Thus, unpleasant complications can arise.
Permit for conflicting use as a contiguous site
The opaque accumulation of rules and exceptions that we know as environmental law brings counsel if one knows where to look. The Environmental Law Decree, in the second appendix under the fourth article, gives a list of activities for which a permit may be given for activities that conflict with a zoning plan. The ninth section of that article mentions the use of land adjacent to a building in violation of the zoning rules applicable to that land.
The extensive procedure with the decision period of 6 months, which is the starting point for permits in activities in conflict with a zoning plan, does not have to be gone through in this case. The shorter, regular procedure is applicable, with a decision period of 8 weeks. This also means that if the application is not decided on in time, the requested permit is given by operation of law. In this way, the land near a building can be used for a purpose that deviates from the zoning plan, without having to undergo a rigid process of planning decisions.
Conditions for permit
This possibility of authorization has been curtailed within strict limits. The legislature and courts strictly enforce the requirement that the land for which the permit is sought is actually adjacent to a structure. This is how the owner of a piece of land, with a house, a garden and a garage on it, found himself. He applied for a permit to extend the garden to a strip of land behind the garage. This was rejected because the strip did not border directly on the house.
In addition, the change of use of the adjoining property must serve only the use of the structure to which the property adjoins. A terrace at the restaurant is sufficiently related to the function of the building and will be considered to serve the use for the restaurant destination. Similarly, parking spaces will be considered to serve the use of the hotel zoning and bicycle storage will also be embraced by the residential zoning.
But does the desired use serve, for example, to provide space for a new activity that the owner has added to his business, then the slower, more laborious path of the extensive procedure will have to be followed to obtain permission to deviate from the zoning rules.
So here too the inevitable ifs and buts apply. Nevertheless, the regulation deserves attention. Should you encounter complications because the desired expansion of a permitted activity in an adjacent building clashes with the zoning on the adjoining property, it is useful to consider whether an appeal can be made to this regulation.
This article was written by mr. D.C. van Genderen.
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