The article comes from the Jagiellonian Club website
Leszek Wisniewski describes the changes brought by the amendment to the Law on Planning and Zoning.
The amendment to the Law on Planning and Spatial Development gives hope that the issue of zoning decisions and the allocation of excessive land for development will be sorted out in the next decade. It is possible that the improvement in spatial management will only have a quantitative effect, not a qualitative one. The lack of mandatory urban planning standards and the express timing of the reform will not promote quality. Municipalities of metropolitan rings will still be able to pretend that they are villages and not cities. It will also still be possible to enact local plans that permit patchwork urbanism.
Finally, an order with WZs
After 2 years of work in the Ministry of Development (which also became the Ministry of Technology), the amendment to the Law on Planning and Spatial Development was approved by the Council of Ministers in March and sent to the Sejm for work. This is another approach to a comprehensive reform of the current law passed already 2 decades ago (March 27, 2003), which adapted the planning system in Poland to the realities of socio-economic life after the political transformation and became the source of many pathologies and chaos in spatial planning.
The biggest change associated with the current reform is the restriction of the possibility of using one of the most pathological elements of the spatial planning system, i.e. decisions on development conditions issued when there is no valid development plan in a given area. The current law retains this type of planning instrument, but significantly limits it.
First of all, municipalities will be required to designate in the general plan an area in which zoning decisions can be issued. The method of designating this area itself will also be strictly defined, and it will be possible to designate it, as a rule, mainly where development already exists, but there are developable gaps.
With the introduction of the general plan, a document that will replace the study of land use conditions and directions, there is another important issue. Zoning decisions will have to comply with its provisions. Thus, one of the biggest pathologies of the current system will be eliminated, in which on decisions on land development conditions it is possible to implement investments that even contradict the current study.
Decisions on zoning will also have to respect the urban planning standards taken over by the municipality, including, for example, requirements regarding the distance of the planned investment from a school or a green area. Decisions on zoning will also cease to be perpetual. They will expire five years after they are issued. The problem, however, is that the new law does not extinguish zoning decisions issued to date. For such an extinguishment, of course, some deferral would also have to be provided, but such a provision seems necessary. During work on the law, such a provision was proposed by the Senate, but was rejected by the Sejm.
Issued WZ decisions often tie the hands of the local government, which, if it wanted to introduce a different type of development in the local plan than that indicated in the decision, would expose itself to compensation claims. Thus, current local plans may be influenced by WZ decisions issued even 10-20 years ago. This problem is not solved by the new law.
Also unanswered is the fact that there is no limit to the size of an investment that can be built on the basis of such a decision. Therefore, for example, Varso Tower, the tallest building in the European Union, was built based on such a decision (this area of Warsaw does not have a zoning plan).
The zoning decision is the least transparent procedure in the entire planning system and, in addition, completely devoid of public participation, so limiting the size of investments made on its basis would be advisable.
Municipal development strategy a foundation
The second, already mentioned novelty proposed in the law is the general plan. It is intended to replace the study of land use conditions and directions. Replacing one document with another is more than just a name change. The powers of these acts will also be different.
The study combined elements of a document describing the municipality's strategy and an executive act for that strategy, with the latter competence only in relation to the preparation of local plans. Now these elements will be separated.
An important document will be the municipality's development strategy. It is in it that the proposal for the functional and spatial structure is to be included. It is also in the strategy that all analyses will be included regarding, for example, the natural system, transportation system or protection of cultural heritage.
The municipality's development strategy is to be the basis for the adoption of a general plan, which will already be of a more "technical" nature. The general plan will show the division of the municipality into functional zones, as well as other elements, e.g. the general plan will indicate the area where zoning decisions can be issued, as well as the downtown development area.
The general plan, together with urban planning standards, if the municipality adopts them, will be the basis for drawing up local development plans, i.e. it will have the same function as the study today. It will also play a similar role in relation to zoning decisions and other planning acts. This will mean the end of a kind of "dual authority" that we see where the study refers only to part of the planning acts, and can be ignored in others.
Urban planning standards are an element that first appeared in the housing speculative law of what is popularly known as the "Developer's Lex." The law contains nationwide, mandatory accessibility standards for, among other things, schools or green spaces, which municipalities must adopt and follow the procedure described in the law for issuing decisions for developments. The law gives local governments some flexibility to set these standards, but they must always be applied.
The standards from the "Developer's Lex" have been transferred in some way to the amendment to the Law on Planning and Zoning, but without specific standards for the distance of public transportation stops. At the same time, in addition to the accessibility standards for elementary school and public green spaces mentioned explicitly in the law, local governments can also specify accessibility standards for other public services, such as culture or health. It is also possible to indicate different standards for different areas of the municipality. This is a good solution, especially in large municipalities, where conditions in different areas may be different.
The problem is that urban planning standards are not mandatory, like those in the "Lex developer." This is extremely important, because the practice of spatial policy over the past 2 decades shows that one should not count on a responsible attitude on the part of local authorities when it comes to urban planning.
Probably the best examples are Warsaw's Białołęka and the suburban municipality of Lesznowola, where pathological doe urbanism is created in accordance with the local plans in force there. The several-fold excess of land earmarked for development is also not an accident, but the result of deliberate action by municipal governments. An issue as important as the availability of public services cannot be left at the mercy of the goodwill of local governments or lack thereof.
Another problem with urban planning standards concerns the differentiation of accessibility distances. This in the amendment is based on the urban-rural divide. Meanwhile, the smallest city in Poland has a population of about 300, and the largest village has a population of almost 13,000. It would be more rational to divide the standards based on the size of the village. The limiting size could be, for example, the number of 2 thousand residents.
Then "urban" standards would also apply in the suburbs of large cities, most of which are formally villages, although functionally and structurally they are de facto cities. It is there that the biggest problems with the accessibility of public services often arise. According to a report by the Polish Economic Institute, the average distance to kindergartens, schools and clinics in large cities is 700-800 meters, a distance of about 10 minutes' walk, while in suburban municipalities it is over 1 km.
This discrepancy can be seen, moreover, in transportation data. In large cities, almost half of the students get to school on foot, in the suburbs only ¼. Car use for commuting is also much more common in suburban areas.
The mere appearance of urban planning standards in the Law on Planning and Spatial Development is to be welcomed, but the construction of the regulations introducing them and the fact that they will not be mandatory for local governments is questionable.
Level of demand for residential buildings
Another major change in the amendment is the abolition of the obligation to prepare a demographic forecast of the municipality and include it in the study, and in the new law in the general plan. This is one of the most important changes to the existing law, which was introduced in 2015 with the Revitalization Law. It was a result of the overabundance of development sites designated by municipalities. According to estimates by the Polish Economic Institute, studies of Polish municipalities allow for the construction of housing for 140 million residents in Poland.
However, the abandonment of demographic projections does not mean that the amendment allows for overbuilding. The municipality will be required to estimate the demand for new residential development and take this estimate into account when determining the absorptive capacity of land for development in the general plan.
If the absorptive capacity of currently adopted local plans ensures that the municipality's housing needs are met, it will be prohibited from designating new areas for development. Such areas will be allowed to be designated only if the current local plans do not have sufficient absorptive capacity.
However, the amendment provides some flexibility. The municipality can designate areas realizing between 70% and 130% of the demand for residential buildings. This element of the law may limit urban sprawl. One problem arises. The method of calculating housing demand will be described in a separate regulation. So far we do not know the content of this proposal, so it is difficult to assess how this instrument will work.
Disappearing fee on the increase in the value of real estate
Unfortunately, a very important point - the mandatory planning annuity - also fell out of last year's consulted draft. Currently, when passing a local plan, the local government can establish a planning fee, which is charged on the increase in the value of real estate as a result of passing the plan. The maximum rate of this fee is 30%, and it is collected at the time of sale of real estate in the area covered by the plan, but only for 5 years after its enactment.
The fee is intended to finance the costs of implementing the plan, such as buying up land for streets, green areas and schools. In practice, local governments often abandon the introduction of this fee, and its collection is even worse.
According to the PIE report, in 2019 the cost of implementing local plans in more than half of Poland's municipalities totaled about PLN 32 billion. The largest part of this amount is expenditure on the purchase of land for streets and their construction. At the same time, planned revenues related to the enactment of these plans were estimated at about PLN 19 billion. In 2020, municipalities managed to raise only less than 1 billion of the planned approximately 17 billion in revenue from local plans.
A proposal for solving this problem was presented in the bill consulted last year, which called for the planning fee to be mandatory and always amount to 30% of the increase in the value of real estate. In addition, the ministry assumed that the fee would be levied on all property owners in the area where the plan would be enacted, regardless of whether they sold the property or not.
This is a very reasonable proposal. On the one hand, it prevents the now common practice of avoiding the planning fee, and on the other, it forces more rational applications for one's own property, which can mean specific costs for owners. At the same time, the bill provided for the possibility of spreading the fee into a maximum of 360 monthly installments (so spreading the fee over up to 30 years). This is important, because its amount could range from tens of thousands to several million zlotys.
Unfortunately, such an option would be available to the local government only for those living on the property for more than 3 years. Consequently, people who simply acquired the property or lived on it for a shorter period of time, or ran a business on it, would no longer have such an opportunity. This very hard regulation was the biggest weakness of the mandatory planning fee proposal. It could be mitigated if local governments were given the option of spreading the fee for all property owners.
This would be logical, moreover. A local plan is not implemented within months of its adoption. Buying up land and realizing the public spaces and facilities enshrined in it is often spread over years. In this way, the planning fee would give municipalities a steady income that would allow them to realize the objectives of local plans. Unfortunately, the ministry, in the amendment sent to the Parliament, withdrew from the provisions on the mandatory planning fee altogether.
In the bill's proposal from last year's consultations there was also a provision on a planning fee charged on the increase in the value of real estate related to the issuance of a decision on development conditions. However, it would have been levied only after the building permit decision, issued on the basis of an earlier zoning decision, became final. This demand also disappeared from the draft amendment sent to the Sejm.
The new Law on Spatial Planning and Development thus adds to the duties of local governments, while failing to solve one of the most serious problems of spatial planning in Poland, namely its chronic underfunding, as well as the economic irrationality of planning decisions, such as the overly extensive designation of land for development.
Unrealistic deadlines imposed on local governments
Finally, it is worth mentioning the threat posed by the law's transitional provisions, which concern the replacement of studies by general plans. The law stipulates that they will expire at the end of 2025. This is partly due to the fact that the government plans to finance local governments to draw up general plans with funds from the National Reconstruction Plan (NRP).
The very idea of financial support for local governments in implementing the reform is most commendable, but the time for its implementation is far too short. In large municipalities, study work takes as long as 3 to 5 years. It is worth remembering that master plans must be developed by someone. Meanwhile, in Poland, the number of people with knowledge and experience in this area is very limited.
This is due, among other things, to the fact that such documents are drawn up quite rarely. In an average municipality, a new study is created once every 10-20 years. Besides, in the case of a study/general plan, agreements and opinions of many offices and institutions are necessary. When general plans are developed en masse, they will be flooded with thousands of requests for agreements and opinions, so the said offices and institutions simply won't be able to respond to them.
Developing new general plans for several thousand municipalities in Poland within 2 years is therefore simply not feasible. This process would have to be spread out over at least 5-8 years. Extension of the period of validity of zoning studies was called for by the Senate, but the amendment was rejected by the Sejm.
The amendment to the Law on Spatial Planning and Development is certainly a much-needed change. Its current text gives hope that the issue of zoning decisions and the allocation of excessive land for development will be largely sorted out in the coming decade.
It is possible that the improvement in spatial management will only have a quantitative effect, not a qualitative one. The lack of mandatory urban planning standards means that their adoption will be a matter of goodwill on the part of local authorities, and experience shows that these, unfortunately, often prioritize "entrepreneurship" in spatial planning over the quality of urban planning, and thus the quality of life. Quality, above all of general plans, will also not be helped by the express timing of the reform.
The municipalities of the metropolitan beltway will still be able to pretend that they are villages and not cities. It will still be possible to enact local plans that permit patch urbanism. This is all the more likely because important financial elements have fallen out of the amendment, which could finally allow municipalities to pursue real, not just pretend, spatial policies. The aforementioned regulations could also have curbed property owners' eagerness to convert their properties into land for development.
Reform of the spatial planning system has been advocated for years. The current law is another attempt to do so in the last decade. Unfortunately, over time, its successive proposals have been less and less ambitious. The new law, which was finally passed in early July, is no different, having been significantly truncated from previous proposals at the outset, and many important provisions were also cut from it at later stages of the work. So far, rather than a major epochal change, it promises to be a rather large and significant, but nevertheless only adjustment.
Assistant in the Department of Urban and Rural Landscape Design at the Faculty of Architecture, Warsaw University of Technology. Member of the Expert Team of the Urban Planning and Architectural Commission. Member of the Working Team for the reform of the urban planning system at the Ministry of Development and Technology from 2020 to 2023. Collaborator of non-governmental organizations: Association "City Is Ours", Jagiellonian Club, SISKOM Association, ClientEarth Foundation Lawyers For Earth and Foundation "Bęc Zmiana". Graduate of the Faculty of Architecture at the Warsaw University of Technology and the Institute for the Study of Public Space at the Academy of Fine Arts in Warsaw.