In today’s article, as part of the continuation of the series on the act on facilitating the preparation and implementation of housing investments and accompanying investments, (“ lex developer ” or “ special housing act ”), we will discuss the appeal procedure against the resolution of the municipal council on determining (or refusing) the location of an investment within the meaning of the special housing act .
When adopting a resolution to determine the location of a residential investment (" location resolution "), the municipal council takes into account the level of housing needs within the municipality as well as the needs and development opportunities of the municipality, as determined by the findings of the study of conditions and directions of spatial development. It is worth noting that the municipal council may refuse to determine the location of a residential investment, even if all statutory requirements for the proposed investment are met, based on an assessment of the municipality's housing needs, which is, in practice, discretionary. Administrative courts have repeatedly ruled that even meeting the conditions specified in Article 7, Section 4 of the Special Housing Act does not obligate the municipal council to adopt a positive location resolution .
Pursuant to Article 15 of the Lex, the developer may, within 30 days of the date of its publication in the provincial official journal or of its submission to the investor, file a complaint against the resolution on determining the location, as referred to in Article 101 of the Act on Municipal Self-Government (“ USG ”), with the provincial administrative court.
As it follows from Article 50 § 1 of the Act on Administrative Court Procedure (hereinafter referred to as Act ), anyone who has a legal interest in it is entitled to file a complaint with an administrative court (as well as a prosecutor, the Commissioner for Human Rights, the Ombudsman for Children and a social organisation within the scope specified in the aforementioned Act). Therefore, an entity whose interest is objectively related to an administrative act, action or inaction of an administrative authority has the right to file a complaint with an administrative court .
Pursuant to Article 101, Section 1 of the Self-Government Act (which constitutes lex specialis to the aforementioned Article 50 of the Administrative Procedure Code), anyone whose legal interest or entitlement has been violated by a resolution or order adopted by a municipal body in a matter within the scope of public administration may appeal the resolution or order to an administrative court . The possibility of filing such an appeal depends on the fulfillment of two conditions: the subject of the appealed resolution is a matter within the scope of public administration, and it infringes the legal interest or entitlement of the complainant. While the first condition should not pose any difficulties in interpretation, the issue of whether the legal interest or entitlement of the complainant has been violated by an act of a legislative body, such as the municipal council, may prove quite problematic.
The legal regulation contained in Article 101 of the Administrative Procedure Code narrows the right to file a complaint in relation to the general basis for filing a complaint to an administrative court, i.e. Article 50 of the Administrative Procedure Code. The right to file a complaint in this procedure is granted only in the event of an objective connection between the contested resolution and the individual legal situation of the entity complaining about the act of the municipal council.
Failure by the complainant to demonstrate a violation of their legal interest or entitlement will result in the complaint being dismissed. The literature emphasizes that the complaint in question is not an actio popularis, and its filing requires the complainant to demonstrate a violation of their specific, individual legal interest, arising from a specific substantive law provision.
An entity granted standing to appeal a resolution under Article 101, paragraph 1, of the Self-Government Act must demonstrate that its legal interest (or right) was violated in connection with the adoption of the resolution. This means that a specific situation exists in which the adoption of a given resolution adversely affects the rights of another entity protected by substantive norms or rights arising from those norms.
Due to the very nature of the resolution on determining the location, as an act adopted by the municipal council at the request of the investor, it should be assumed that the investor at whose request a positive resolution was adopted or the location determination was refused will be the one with the right to file a complaint.
In this context, the question arises as to the conditions enabling the investor to effectively challenge the resolution on determining the location.
Since, as indicated above, the right to file a complaint exists only if the resolution violates an interest or right, the investor will have the right to appeal the resolution in the following circumstances: first, if the municipal council refuses to grant the requested location determination; and second, if the municipal council adopts a resolution specifying the location of a residential investment, but the content of the resolution itself differs from the investment covered by the application, or the resolution is issued despite the application being withdrawn.
It should be noted, however, that in the case of negative resolutions, the Special Housing Act does not specify their content or formal requirements, including the obligation to prepare a justification for the resolution. In its judgment of 10 July 2019 (ref. II Sa/Bd 372/19), the Regional Administrative Court in Bydgoszcz noted that the obligation to act in accordance with the law, combined with the principle of trust, creates an obligation for public authorities to justify their decisions. Because the legislature entrusted the municipal council with the final decision regarding the determination or non-determination of the specific location requested for a residential investment, the resolution of this body, together with its justification, must indicate and explain the reasons for the decision in an individual case, taking into account the content of the application, the resolution-making procedure, including opinions and agreements, local development conditions and the state of securing housing needs, and the premises specified in the Act. If the resolution contains the specified elements, then it can be reviewed for violations of substantive law.
Due to the exclusion of the provisions of the Code of Administrative Procedure from this procedure, it is not possible to appeal against opinions or agreements during the resolution-making procedure .
The second entity that could potentially have an interest in filing a complaint against the investment approval resolution is the owner (perpetual usufructuary) of the land on which the investment would be implemented or the owner (perpetual usufructuary) of the adjacent land. Determining the existence of this interest is difficult, however, due to the fact that the location approval resolution itself does not change the land's intended use and does not create any rights to the land covered by the requested location approval resolution.
Despite the fact that the legitimacy of the person filing a complaint against the resolution on determining the location does not result from the provisions of the Administrative Procedure Code, but from Article 101 of the Self-Government Act, the complaint should meet the formal requirements for this type of document, as regulated by the provisions of the Administrative Procedure Code.
The administrative court will be able to consider the complaint on its merits only after determining the locus standi of the complainant. It is worth noting that, pursuant to Article 134, paragraph 1, of the Administrative Procedure Code, the court of first instance is not bound by the objections and motions of the complaint.
Administrative court review is limited to examining the contested act solely in terms of its legality. Pursuant to Article 147 § 1 of the Administrative Procedure Code, the court, upon upholding the complaint, shall declare the resolution or act invalid in whole or in part, or shall declare that it was issued in violation of the law, if a specific provision precludes the declaration of invalidity. A declaration of invalidity is made ex tunc (i.e., retroactively). The consequence of such a judgment is, therefore, the elimination of the resolution from legal circulation and the elimination of any consequences resulting from such a resolution.
It should also be noted that the developer law introduces shorter deadlines for submitting a complaint, along with the legislative body's response and case files, to the provincial administrative court. This deadline is 15 days from the date of receipt of the complaint, and introduces a two-month deadline for considering the complaint. Any cassation appeal will also be considered within two months of its filing.
In summary, a resolution regarding the location of a residential investment (whether positive or negative) may be appealed to an administrative court. To file a complaint, the complainant must have a legal interest in the matter being decided. The aforementioned case law, which requires municipal councils to provide justification for resolutions regarding the location of residential investments, merits approval.
Next week we will continue to deal with the topic of Lex developer and will focus on issues related to urban planning standards.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of February 7, 2022
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