As announced, in today's article we continue our considerations related to the act on facilitating the preparation and implementation of housing investments and accompanying investments (" lex developer " or " special housing act "), moving on to discuss issues related to local urban standards (also " LSU "). This issue is still relevant, although according to the draft amendment to the Spatial Planning and Development Act (which we wrote about in #85 ), the entire chapter devoted to LSU would be repealed.
As a reminder, LSUs are adopted by the municipal council in the form of a resolution establishing local urban planning standards, which constitutes an act of local law. This is crucial, as a dispute has already arisen regarding whether the resolution applies only to investments implemented under the Special Housing Act or to all investments implemented within the municipality, as well as whether the municipality may impose additional conditions not stemming from the act. Resolutions adopted so far are, in most cases, more stringent than the conditions arising from the Lex Developer, making resolving this issue crucial.
In my opinion, the provisions of the special act should be interpreted strictly in this regard, meaning that the LSU apply only to investments implemented pursuant to this act and should encompass only the parameters explicitly specified therein. This is in contrast to the government's planned municipal urban planning standards, which would be introduced in the new Article 13a, Section 1, Letter b) of the Spatial Planning and Development Act and would apply to all investments based on the content of the municipal general plan (we will analyze these issues in detail once the draft is adopted by the Council of Ministers).
So what can local urban planning standards regulate? Article 17 of the Special Housing Act specifies in detail the conditions that a site must meet to allow for a residential development. Besides the obvious, such as access to a public road, water, sewage, and electricity networks, these conditions include:
(i) distance to a public transport stop – no more than 1000 m, and in cities with a population exceeding 100,000 inhabitants – 500 m,
(ii) distance to a primary school – no more than 3000 m, and in cities with a population exceeding 100,000 inhabitants – 1500 m, and which is at the same time able to accept new pupils in the number of children constituting no less than 7% of the planned number of inhabitants of the housing investment,
(iii) access to equipped leisure, recreation or sports areas with an area of at least the product of the planned number of inhabitants and the indicator of 4 m2, at a distance of no more than 3000 m, and in cities with a population exceeding 100,000 inhabitants, 1500 m,
(iv) limited number of above-ground storeys – outside cities and in cities with a population of up to 100,000 inhabitants up to 4 above-ground storeys, and in other cities up to 14 storeys ground.
It is within the parameters listed in (i)-(iv) above that municipalities may establish local urban planning standards, provided that they cannot differ from the standards by more than 50%.
Additionally, pursuant to Article 19, Section 3 of the LSU, a municipality may also specify the number of parking spaces necessary to service a residential investment or the obligation to provide access to the heating network under the terms of the Energy Law. Here, too, an interpretation issue arose as to whether the number of parking spaces specified in the resolution applies only to residential investments or also to accompanying investments, where municipalities (such as those in Warsaw) have established a parking space ratio for commercial premises/commercial and service buildings. This case was resolved by the Supreme Administrative Court, which agreed with the broad interpretation of this provision, thus sanctioning that the LSU may also specify the number of parking spaces and access to the heating network for accompanying investments (see Supreme Administrative Court judgment of September 25, 2019, file reference II OSK 2174/19).
Another issue related to parking spaces was the subject of a ruling by the Provincial Administrative Court in Poznań (judgment of the Provincial Administrative Court in Poznań of October 23, 2019, file reference IV SA/Po 404/19). It concerned the determination of the area where parking spaces related to a given residential investment are to be provided . The voivode stated that the provisions of the special act do not directly grant the municipal council the authority to designate the location of parking spaces, provided that they are to be located on the plot of land that is the subject of the investment. The Provincial Administrative Court disagreed with this view, citing a teleological interpretation and concluding that this provision allows for the inclusion in the LSU of a specification that parking spaces necessary for servicing the residential investment are to be located on the property where the investment will be carried out. The Provincial Administrative Court indicated that linking the location of parking spaces to the investment site is rational, logical, and consistent with the principles of rational spatial management – a view that is difficult to disagree with. Therefore, when planning an investment, we recommend that parking spaces be located in the area that has been designated as the location for the residential or accompanying investment.
In summary, the introduction of local urban planning standards by municipalities, tightening the rigors of implementing residential developments under the special act, has significantly hindered its implementation. However, as recent examples of location resolutions demonstrate, compliance with these standards is possible, but they require dialogue with both municipal authorities and the local community. Let's hope that the announced amendment to the Spatial Planning and Development Act will not undermine the already established conditions for such cooperation.
We are not parting with lex developer and next week we will focus on such an interesting issue as the instructions of the Mayor of Warsaw, as documents intended to facilitate the implementation of investments in the discussed procedure.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of February 14, 2022
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