Urban zoning reports prior to the hotel moratorium
According to information published by the Barcelona Town Hall, the so-called “hotel moratorium” has affected some 35 tourism projects and given rise to 26 claims for judicial review. Six months after the suspension entered into force and following the serious legal and political conflict it has produced, senior associate at Garrigues Barcelona, Carolina Ortega, comments on its scope of application, specifically in relation to the effects of the hotel moratorium on certain proceedings initiated before it came into force.
On July 2, 2015 the Official Gazette of the Province of Barcelona announced the suspension by the Barcelona Town Hall of all urban planning relating to zoning management, the granting of new licenses and/or related municipal notifications and permits provided for in sectorial legislation, licenses for new buildings, major renovations, reforms or rehabilitation involving a change in principal use, increase in volume or building height and/or notifications of works and business relating to all forms of tourist accommodation, student residences and youth hostels.
Following a study of the applications in course, the Town Hall confirmed the exclusion of a total of 51 projects according, amongst other reasons, to article 105.2 of Legislative Decree 1/2010, of August 3, 2010 revising the Catalonian Town Planning Law (“TRLUC”), which states that license applications shall not be affected by the facultative suspension provided for in article 73.1 TRLUC when the applicant possesses a zoning certificate and has requested a license within the applicable six month term.
However, what would be the case if, instead of a zoning certificate, a private entity possesses the prior zoning report referred to in article 17 of the Ordinance regulating municipal intervention in building projects?
Article 17 of said Ordinance states that in the case of new buildings, major renovations, reforms or rehabilitation involving a change of use, before requesting a license, applicants are required to apply for a municipal zoning report to verify the suitability of the project to applicable zoning conditions, by submitting the relevant preliminary draft building plans. If the prior zoning report is favorable, the private entity is entitled to continue with the specific license application procedure.
In light of this regulation, it could be understood that the zoning study subject to the report is much more specific and detailed than the analysis made for a zoning certificate to be issued – which can be requested by anyone by merely identifying the property-, as it is based on interest in implementing a specific project under a specific license application procedure.
It can therefore be concluded, given their purpose and content, that zoning certificates and zoning reports are equivalent documents and that the same effects of article 105.2 TRLUC are applicable to both.
In this regard and even if a zoning certificate was not requested separately, it would be mandatory for the Town Hall to grant the building licenses requested before the publication of the suspension resolution and with a valid zoning report and said licenses could not be refused on the grounds that the zoning certificate had not been granted.
Furthermore, article 14 of Decree 64/2014, of May 13, 2014 passing the Regulations on the protection of zoning legality in Catalonia states that “zoning licenses must be granted in accordance with legal provisions, town planning regulations and municipal ordinances on the use of land and buildings in force when the application is resolved, or at the time it is understood that the effects of the absence of an express resolution are applicable, unless pursuant to a valid zoning certificate.”
These considerations are important when determining the scope of application of the moratorium, as they imply the exclusion of other projects that are currently suspended, despite the prior zoning report having been obtained.
Nevertheless and unless the criteria is adopted by the Authorities to process the relevant license applications, the truth is that a possible court decision upholding a claim against the hotel moratorium would have little effect in practical terms, given the likelihood that a final court judgment would not be obtained before the moratorium is lifted or the Special Tourist Accommodation Zoning Plan is passed.
In this context, a favorable judgment would only enable promotors to claim financial compensation from the Authorities for the damages incurred as a result of the moratorium, from which they should have been excluded.
Garrigues Department of Administrative Law