Introduction
The list of questions will be answered by four short chapters.
The first chapter tries to give an overview on the German system of planning and planning regulations. That will be the basis to transfer the given cases into the German planning system and to answer the questions a. and b. in the second chapter.
The third chapter tries to give an overview on the German system of fees and contributions to the costs of infrastructure. This allows to answer to the question c. in the fourth chapter.
The fifth chapter, answering the question d., describes the usual management of built residential areas in Germany.
I. Overview on the German system of planning and planning regulations
The given case concerns a highway, an industrial area, a housing area, a regional park and a wind turbine park.
To find the respective planning regulations for these matters, two kinds of plans and planning should be differentiated:
The integrated spatial planning of communes and regions (Bauleitplanung, Raumplanung) at the one side, and the isolated planning of specified matters (Fachplanungen) at the other side. The most important integrated spatial planning is done by the local authorities in two stages.
By the overall development plan for the commune as a whole (Flächennutzungsplan 1:10.000), and
by the local Building Plans (Bebauungspläne 1:1.000) for single areas, quarters and/or projects.
The local plans must fit in with the respective Regional Plan (1:100.000), drawn up by public regional planning associations under the direct influence of the state (“state” means here the Land, not the Federal Republic – the Bund). The system and the process (but not the contents) of the communal planning are regulated by the Federal Building Code (Baugesetzbuch); the regional planning is regulated by the Federal Spatial Planning Law (Bundes-Raumordnungsgesetz) together with the State Spatial Planing Law (Landesplanungsgesetz) of the respective Land.
One of the most important specified planning is the planning of Highways – regulated by the Federal law of Highways (Fernstraßengesetz). This planning system functions in several stages (from the overall plan for the whole Republic, given by the German federal parliament – the Bundestag – over the more concrete destination of the lines of new highways – executed by the State Governments – on to the legally binding act of the final destination of the route (Planfeststellung), done by state authorities on local level.
II. Implementation of the case into the German system of planning: What kind of regulation does apply? Do supra local authorities have the regulatory power regarding the location and realization of highways, industrial areas and wind turbine parks?
The highway must be planned by using the federal system of specified planning of highways, and the Federal Republic pays for this and the construction of the highway as a whole. The local authority of Polderadeel has to be involved in the planning process, but the decision lies on higher level. Polderadeel has to organise the connecting roads and to bear the costs of the connecting roads. Has Polderadeel the chance to get money from private investors for the costs of the construction of the roads? That will be answered in chapter four.
The municipality decides by its development plan (Flächennutzungsplan) on the location of theindustrial areas and the housing areas, within the framework of the regional planning. The regional planning may block some areas from industrial use or against any development for settlements use, if there are special reasons to do that (e.g. old forests, valuable green areas, climatic sensible areas, flood areas); but the function of regional planning is more negative than positive planning. Within the contents and the limits of the Flächennutzungsplan, the industrial area might be developed and the housing area might be extended by the planning of the local authority – if the owners of the land agree with this. If not, the local authority may buy the land if it is rich enough– but expropriation of the owners is nearly impossible.
Respective the wind turbine parks, the regulations are very special. An important pre-condition lies in the fact, that wind turbine parks normally are situated in the outskirts. The German legislator decided in 1986, that wind turbines are privileged to be constructed in the outskirts. Privileged projects in the outskirts are enumerated in § 35 Baugesetzbuch; there are only seven kinds of privileged projects – all other projects and constructions are normally forbidden in the outskirts. Regarding the fact, that most communes don’t like to find wind turbines distributed all over their outskirts, the law empowers the local planners to concentrate wind turbines in one or more areas of their outskirts. The instrument to do that is the Flächennutzungsplan. If the Flächennutzungsplan designates at least one area as “concentration zone” for wind turbines and/or their parks, the rest of the outskirts within the borders of the commune is blocked for wind turbines (also for single ones). The law (§ 35 BauGB) says, that this “concentration zones” may be designated either by the local authority (by the Flächennutzungsplan) or by regional planning. If concentration zones for wind turbines are includes in a regional plan, the local authorities are obliged to follow the regional planning. Since the building permission of wind turbines is a matter of state (not of the municipality), the municipality is not empowered to allow wind turbines or a wind turbine park against a decision of the regional planning of the state.
III. Overview on the German system of fees and contributions to the costs of infrastructure
The state wide infrastructure – like highways – normally has to be financed by tax revenues out of the state budget. There is some discussion to allow public-private-partnership in the construction of highways etc. The private contractor finances a part of the highway (a tunnel? a bridge), the users have to pay a fee to pass this part of the highway (like in France for passing all highways), and the private investor re-finances himself by the fees.
The local infrastructure (streets, parks etc) as a whole has to be financed by the local budget, which is composed by own taxes and fees of the local authority and by financial contributions and grants of the state. For the narrow infrastructure of a plot, the local authority is empowered to levy aspecial fee for the costs of the development of a designated area (Erschließungsbeitrag). 90 % of the development costs have to be paid by the owners of the flats within the designated area, the amount is depending of usefulness of the development for the respective plot. The cost of the development must be listed up very exactly by the local authority, and the costs of supra-local streets (like a highway and the extensions) are not allowed to be included in the list.
The limits of public taxes and fees may be overcome by a contract between the local authority and the developer. If the developer agrees to pay for some infrastructure, the law allows contracting within the borders of reasonability (Angemessenheit). The bargaining process functions as follows: The municipality announces to set up a building plan for the area (which is owned by the developer or which he has an agreement to buy) , if the developer agrees to finance the development as a whole, including the costs of planning.
A special instrument also for financing infrastructure lies in the designation of a special ‘urban development area’ (Städtebaulicher Entwicklungsbereich) by the local authority. Within the designated area (designated by local by-law), the municipality is asked by the law to buy (or at last to expropriate) all plots, which are normally used as agricultural land. The municipality has to develop the land for settlement (for housing, but also for commercial or industrial use), and after development the municipality has to sell the plots to private users. The municipality refinances itself by the difference between the (low) price of buying the agricultural land and the (high) price of selling the building land after the development. The income of the local authority by selling the plots is not allowed to be higher than the amount of all the costs of development and infrastructure. If the amount of the costs is lower than the sum of the selling prices, the municipality has to pay the surplus back to the former owners of the plots.
IV. Do public authorities have the power to force developers, who own the land, to contribute in the cost of public amenities? What are the limits in this respect?
The owners of the plots have to pay 90 % of the costs of the narrow infrastructure (streets within the quarter, local greenery etc.); the bill has to be sent as an act of administration (Verwaltungsakt) to the owners, also in advance of the construction. If the owner means, that the bill is illegal, he may appeal the courts.
A contribution of the owners to the costs of the wider infrastructure (like a regional park or to the costs of the connecting roads to the highway) is possible, but only on a voluntary basis of the owners by contracting. The “free will” of the owners can be influenced by the local authority by the information, that the installation of a new industrial zone or the extension of the housing area will be done (by B-Plans) only, if there is some co-financing by the developers. The law allows only contributions to the costs of infrastructure, which is really useful for the developer, no gifts to the municipality are allowed.
V. In which way municipalities have the power to regulate the management of built residential areas?
The buildings in residential areas normally are private owned. The management of the private owners is free, limited by the public laws on the safety of constructions and by private laws on the conditions of renting. Only if a building is going to be a ruin, the public administration is empowered to force the owner to some investment.
Some residential areas are owned by Local Housing Agencies (Kommunale Wohnungsbaugesellschaften. These agencies are formally private, but public financed and under public control. The management of these areas is under public influence – but formally the managers of the respective GmbH (Ltd. company) are independent.
Nowadays, some municipalities sell their Local Housing Agencies to private investors. There is a public discussion about the sense of these sellings, because the local authority losses its influence on the management.
by Gerd Schmidt-Eichstaedt
(2006-12-06 )