As announced, today's article will be devoted to the second instruction of the Mayor of Warsaw, i.e. the instruction of July 15, 2020, regarding negotiations with private investors regarding meeting the educational standard in accordance with the Act on facilitating the preparation and implementation of housing investments and accompanying investments (version No. 2) (the " Negotiations Instruction "). As we indicated together with the instruction of February 1, 2021, regarding the principles of conducting additional consultations (which we wrote about here #91 ), these are documents that were created in response to developers' difficulties in applying the Act of July 5, 2018, on facilitating the preparation and implementation of housing investments and accompanying investments ("lex developer" or "special housing act").
Let's begin, however, with a brief analysis of the provisions of Article 22, paragraphs 1-6 of the Special Housing Act, which stipulates that before adopting a resolution establishing the location of an accompanying investment, the municipality may enter into an agreement with the investor specifying the method of implementing the accompanying investment , including the municipality's commitment to independently carry out the tasks arising from the investor's application. Concluding such an agreement constitutes the basis for determining that the requirements regarding the investment's location and implementation standards have been met to the extent specified in the agreement (we wrote about these standards here #90 ).
If the investor is the owner or perpetual usufructuary of the land on which the accompanying investment will be carried out, the agreement specifies the rules for the acquisition of ownership or perpetual usufruct of this land by the municipality, and if it is a third party, the agreement is also with the owner or perpetual usufructuary of the real estate.
In principle, the legislature allows the investor to enter into an agreement with the municipality. This may be particularly important in situations where the investor and the municipality agree on the method of implementing certain elements of technical or social infrastructure. It is important to note that concluding such an agreement is optional, which means that the legislature takes into account the broader context of implementing accompanying investments, primarily within the scope of the municipality's own tasks. The commented provision also implies that the agreement concluded between the investor and the municipality will result in its inclusion in the application for a resolution on the investment location.
Using the statutory authorization described above, the Mayor of Warsaw issued an Instruction on Negotiations, which contains the basic assumptions for negotiating accompanying investments in the context of the educational function .
First, the principles for calculating the necessary educational infrastructure were established. Due to the diverse locations within the city, and therefore the varying levels of educational infrastructure available, the city was divided into two zones (a map is attached):
- educational function supplementation zone – depending on the number of children generated by the housing investment, the demand can be met by handing over the premises or building a facility,
- zone of necessity to introduce educational functions – the demand can only be met by building new facilities whose size depends on the number of children generated by investments.
Additionally, due to the varying scale of the proposed housing investments, housing investment ranges have been established, indicating the type of facility that meets the educational standard:
- up to 200 students – commercial premises meeting the educational standard for the purposes of education within the investment or at a distance of no more than 800 m from the investment, meeting the requirements specified in the instructions;
- up to 300 students – construction of a facility enabling the creation of classes for grades I-III, i.e. at least 9 classes;
- over 300 students – construction of a school facility.
The extension, superstructure and reconstruction of an existing school by the Investor requires additional agreements.
Moreover, for projects with up to 200 students, the instructions allow the investor to use the so-called simplified procedure, which details the steps involved in concluding agreements with the municipality and obtaining documents for the transfer of premises for educational purposes. In other cases, the Negotiation Instructions indicate the full application of Article 22 of the Special Housing Act.
Another aspect addressed by this manual is the scope of negotiations related to the conversion of parameters resulting from expected educational standards into the share of planned educational space in the total usable area of the project. To facilitate negotiation goals, the following was adopted:
a) the expected parameter of the share of educational infrastructure in the amount of 4% of the usable and residential area of a given project,
b) the expected parameter of educational area provided free of charge or for a symbolic amount is a premises/facility with an area of 2.5% of the usable and residential area of a given project,
c) the difference between the values given above is an element of negotiations, and an increase in the area above the limit of point B is to be the subject of negotiations regarding purchase/exchange or other solutions based on the market value of the additional area,
d) in the event of the City being unable or unwilling to engage financially, the parameters specified in point B shall be accepted for further negotiations.
In addition, a negotiation margin was established for the target parameters specified above at +/- 15%, depending on the project conditions, such as: location, availability of green areas, scope of conservation or nature protection.
The Instruction also refers to the standards of an educational institution, for projects with more than 200 students, as the applicable Architectural and Functional Standards for primary schools and school-kindergarten complexes of the Capital City of Warsaw, which can be found in detail on the website of the Office of Architecture and Spatial Planning.
In summary, the Negotiation Instructions we discussed provide investors with detailed guidelines for implementing accompanying investments, including meeting the demand for educational functions. Both documents, along with the Consultation Instructions within their regulated scope, are undoubtedly intended to facilitate the implementation of residential investments by potential investors more efficiently than those based solely on the provisions of the Special Housing Act.
We are not closing the lex developer topic yet and next week we will discuss issues related to the acquisition of agricultural real estate in the event of application of the special housing act.
Together with Rzeczpospolita and the Polish Association of Developers, we invite you to a training session entitled "The Development Industry in the Face of the New Development Act." The aim of the training is to discuss the changes that developers must prepare for starting July 1, 2022, following the entry into force of the new act. Details can be found at konferencje.rp.pl.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of March 7, 2022
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