Today – a topic different from the one announced, namely we would like to introduce you to or remind you of the process of obtaining a resolution by an investor to determine the location of a residential investment based on the Act of 5 July 2018 on facilitating the preparation and implementation of residential investments and accompanying investments, more widely known as (“ lex developer ” or “ special housing act ”).
This is a unique procedure, as the investor, through the mayor (or city president), submits to the appropriate municipal council to determine the location of the residential investment. In practice, this means that the investor bears the primary responsibility.
Article 7, Section 7 of the Special Housing Act specifies in detail the elements that must be included in an investor's application, including: (i) defining the boundaries of the area covered by the application; (ii) specifying the planned minimum and maximum usable area and number of apartments; (iii) describing the characteristics of the residential investment, including the demand for utilities and technical parameters; (iv) indicating the extent to which the planned investment does not take into account the provisions of the local zoning plan and that it is not inconsistent with the study of conditions; and (iv) demonstrating that the residential investment complies with the standards specified in the Act or local urban planning standards (which will be analyzed in a separate article). This information later forms the text of the resolution. An urban planning and architectural concept should also be attached to the investor's application.
The application is checked for completeness by the mayor, who, if any are missing, is obligated to request the investor to remedy the formal deficiencies within a maximum of 14 days. Failure to remedy the deficiencies will result in the application being disregarded. If the investor wishes to continue processing after this deadline, they must submit a new application.
If the application meets all legally required requirements, the mayor, no later than three days after receipt, will post it, along with any attachments, on the municipal Public Information Bulletin (BIP) website. If the municipality does not have a BIP website, the BIP website will be published. In this announcement, the mayor will provide information about the application's posting in the manner customarily accepted in the given municipality.
After the proposal is published, any interested party may submit comments within 21 days. Comments may be submitted in writing or electronically.
The mayor is obliged to notify the following persons indicated in the Act:
- municipal units: planning and spatial development commission and urban planning and architecture commission (or their equivalents),
- depending on the factual circumstances, among others, the body competent for the protection of agricultural land, the State Water Management Polish Waters, the State Forests, the relevant regional director for environmental protection.
These entities also have 21 days from the date of receipt of the notification to provide their opinion , and in their absence it is deemed that they have not raised any objections.
Then , after the specified deadlines have passed, the mayor submits a draft resolution to the municipal council on the location, along with opinions and comments, and the results of any consultations . If the application concerns an area covered by a local development plan, the mayor also submits an ecophysiographic study and an environmental impact assessment prepared for the plan.
If comments, opinions, or agreements are received, the mayor has three days from the date of receipt to forward them to the investor. Access to these documents is crucial, as the investor has the right to modify the application (until the resolution is adopted) . Modifications to the application are subject to the same review and approval process as the original application. This means that changes undoubtedly prolong the entire procedure, but they may also affect the municipal council's approval of the application.
The culminating moment is the application's review by the municipal council. The Special Housing Act stipulates that the municipal council must adopt a resolution to determine the location of the investment or refuse to determine its location within 60 days of the investor's application . It also specifies that, when adopting a resolution, the municipal council must consider the level of housing needs within the municipality, as well as the municipality's development needs and opportunities, as determined by the municipality's spatial development study. This raises questions, including whether the municipal council has the right to refuse to adopt a resolution favorable to the investor if the investor meets the statutory requirements, or whether it is obligated to provide justification for the resolution – we will address this next week when writing about the appeals procedure.
Importantly, the determination of the location cannot be made dependent on the investor's obligation to fulfil any obligations or conditions that do not result from separate provisions.
After the municipal council votes, the mayor will forward the resolution to the investor no later than three days after its adoption, along with information about the failure to submit an opinion or position within the designated deadline. The resolution is also subject to mandatory publication in the provincial official journal.
In summary, the procedure for adopting a resolution under the lex developer procedure requires significant investor involvement in preparing the application and its attachments. Although the law stipulates that the resolution should be adopted within 60 days of submitting the application, in practice this procedure takes significantly longer.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of January 24, 2021
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