The zoning plan is not a coloring book

Authors: JUDr. Lukáš Duffek, Mgr. Petr Zábranský and JUDr. Martin Mezenský

The Regional Court in Ostrava, Olomouc branch (the “Regional Court”), in its judgment, annulled the amendment to the zoning plan of the city of Zábřeh to the extent of the prohibition on placing “particularly large sources of pollution” in production and storage areas. The Supreme Administrative Court (the “SAC”) upheld the decision of the Regional Court in its judgment of 24 September 2021, No. 10 As 305/2020-76.

In 2019, the City Council of Zábřeh adopted an amendment to the zoning plan which, among other things, defined the new term “particularly large source of pollution” for fuel combustion facilities with a thermal output exceeding 50 MW and determined that it was not permissible to locate such particularly large sources of pollution in selected production and storage areas.

This change was opposed by a company which wanted to build a paper mill in the industrial zone affected by the change in question, for which it had already obtained a non-legally binding decision on the location of the building. However, the paper mill included two biomass boilers, each with a thermal output of over 55 MW. The amendment to the zoning plan would therefore prevent the paper mill from being validly sited, permitted and operated. The appellant had already questioned during the discussion of the amendment whether this interference with its property rights was strictly necessary and whether it was the most benign way of achieving the intended objective (air protection) in a non-discriminatory manner. However, the appellant was unsuccessful.

In the end, the Regional Court found in favor of the appellant and annulled the amendment to the zoning plan in that part, due to a lack of reviewability. The SAC then, in dealing with the city’s appeal, recalled that, in general, it is of course not excluded that the city may include in the zoning plan a regulation which prevents the placement of fuel combustion facilities in certain areas (albeit designated for industry) whose heat output exceeds a specified limit. The problem in this case, however, was that neither in dealing with the appellant’s objections nor in the reasons for the zoning amendment was the regulation in question properly justified.

In defining the term “particularly large source of pollution”, the city based its definition on the no longer effective Air Protection Act (Act No 86/2002 Coll.), which categorized air pollution sources according to their heat output. However, the currently effective Air Protection Act (Act No 201/2012 Coll.) evaluates air pollution sources based on a comprehensive set of criteria that better assesses the actual environmental impact of the operation of a facility. Thus, the city had failed to justify why it had chosen only one of the possible indicators of environmental pollution as the regulatory value.

Yet, the city only commented on the adopted regulation in general terms, stating that it was seeking to protect air more stringently than the law and land development guidelines. However, it did not provide any specific reasons for the need for such a regulation in the adopted form. Both the author of the zoning amendment and the nature conservation authority recommended that such issue be considered individually in the relevant administrative procedure, not regulated in the zoning plan.

Therefore, if the city chose such regulation, according to the Regional Court and the SAC, it should have better and more specifically explained why it was necessary and why better air protection could not be achieved by other, less stringent means than a complete preventive ban on certain types of installations, both in the justification of the zoning plan amendment in general and in the justification of the objection decision in particular. Specifically, the city had to explain therein that the chosen modification of the conditions for the siting of installations interfered with the rights of the applicant only to the extent strictly necessary and in the most benign manner still reasonably conducive to the intended objective, in a non-discriminatory manner and without arbitrariness.

Moreover, the city’s arguments in favor of stricter regulation had to be all the more persuasive when the appellant had prepared a development plan in accordance with the existing zoning plan and the location of its paper mill had already been non-finally permitted.

However, the contested amendment to the zoning plan did not contain any of this and either did not deal with the objections raised at all or only made general statements which did not go to the substance of the objections.

Thus, the decisions of the administrative courts can be clearly supported: the establishment of sufficient requirements to justify a particular regulation in a zoning plan (or amendment thereto) is an important tool to protect the individual against the arbitrary will of the municipality to regulate business, housing or other activities without serious reasons or a proper evaluation of the impact of the means chosen to achieve the intended goal of the regulation.

However, the appellant’s exemplary procedural activity cannot be overlooked: it is necessary to oppose such interventions and changes in planning from the outset, as such a procedure increases the chances of success in judicial review. Thus, if a regulation, which would substantially restrict or even prevent a planned and previously authorized activity from taking place in an area, is at risk of being adopted, it is necessary to respond to such risk and not hesitate to turn to experts to develop objection arguments and a procedural defense strategy. Such legal advice can subsequently save the considerable costs of reworking original plans that will be negatively affected by the adopted regulation.

The SAC decision is available here, in Czech only.

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