France- Response to Case 2007
Case to be discussed: Polderadeel
a) Regulations that apply in France in a case like Polderadeel
The decision about the highway, which requires expropriation, is a decision of the national government. If the project does not comply with the local plan, this plan has to be changed through a precise revision process. But the construction and the management of the highway is granted, through the process of public private partnership, to a private company.
For the rest of it, the development of an industrial area as well as the residential area are the responsibility of the local authority, the municipality, and the key planning document is the local plan ( PLU, for Plan Local d’ Urbanisme), which is legally binding, i.e. any industrial or residential project has to comply with the PLU.
The set of related regulations are gathered in a single book, the “Code de l’ Urbanisme”, or planning code. This code also includes the regulations regarding the responsibilities of other levels of government, i.e. the departments and the regions, and also the regulations that apply to the funding of infrastructure, and especially the sharing of the cost between the developer and the municipality.
The case of the regional park, with ponds, is slightly different since it can be considered as an equipment of regional interest, and then supposed to be delineated in the master plan ( SCOT, for “Schéma de Cohérence Territoriale”). Local plans PLU must comply with the contents of the SCOT, supposed to be elaborated at the supramunicipal level.
In such a case, there will be a partnership among the relevant municipalities and possibly the Departement to share the cost of the park, or possibly some form of public private partnership.
b) Regulatory powers of supra local authorities regarding the location and realization of provisions like highways, industrial areas and windturbine parks
Basically, in France, there is no intermediate level or regulatory power between the state and local governments, and this can raise problems because of the very large number of municipalities, over 36 000.
However, it should be taken into account that there has been since the decentralization reforms of the 1980s a large development of supramunicipal authorities, often at the level of the agglomeration ( communautés urbaines, communautés d’ agglomerations and communautés de communes, gathered under the generic “ EPCI, for Etablissement Public de Coopération Intercommunale), and most municipalities are in fact part of such an authority, but the diversity of their powers and structures makes it difficult to give a clear overview of the institutional landscape.
It has to be kept in mind that such EPCIs have usually large responsibilities in urban planning, but municipalities very generally keep the responsibility of granting the building permit. It is sometimes a delicate discussion to delineate precisely the topic or objects that are of ‘community interest’ or of ‘municipal interest’. Moreover, the state has kept some substantial powers in the urban development process. First, in the case of highways, which usually require expropriation, the decision has remained a power of the state, and the PLU has to be revised, if necessary, in order to comply with the project of highway before the expropriation can take place. More generally, the state has kept two specific legal instruments that allow to overcome the possible opposition of a municipality if the project is in the “national interest”, for instance a major airport in the Paris Region. The case of a wind turbines park is still different: it is a project of local interest, decided at the level of the municipality, but it can require a special authorization by the ministry of the environment.
Moreover, the development of wind turbines is controversial at the moment, and raises a lot of litigation. A specific legislation has been introduced by the ENL statute of July 13, 2005, that introduces the possibility for the Region to establish a “regional scheme for the development of wind turbines”. Moreover, such parks are submitted to an environmental assessment and also to some specific distance requirements which depend from the height of the turbine.
c) Contribution of the developers to public amenities
Developers have to contribute in any case to the cost of equipments, infrastructure and other public equipments.
Two main devices apply. A first one applies for large complex developments, called ZAC, for “’zones d’ aménagement concerté’, or planned unit developments. For such developments, the basic principle is the negociation between the developer, private or public-private, to fix at the same time the detailed development schemes and the sharing of public amenities between the developer and the public authority, under the constraint that the public authority keeps an obligation to participate in the basic infrastructure. If the ZAC scheme does not comply with the local plan, the PLU has to be modified in order to integrate this scheme.
The other device is simpler and well adapted to small developments or isolated buildings: the ‘local development tax’ ( TLE, for ‘taxe locale d’ équipement’) is based on an administratively assessed value of the buiding, which depends on the type of building. The rate of the tax is usually 1%, and in practice, the proceeds of the tax are much less than the real cost of the amenities to be provided.
Beyond these two general devices, there exist several specialized contributions, for instance the payment of a tax if no parking space is included in the program, or specific contributions for large shopping centers, that often require road connectionsd and large parking space. There is a lot of litigation on this topic. Especially the boom bust cycles on the property market have led to some abuses in the claim of municipalities in the booming periods. This growth has led to a legislation stating the principle according to wich such contributions cannot finance some amenities that would not have a direct relationship with the development. ( this corresponds to the usual ‘rational nexus’ criteria used in the United States.
d) Power of the municipalities to regulate the management of built residential areas
Before the development, the municipality has the key role in the decision making process since it has the responsibility to prepare and approve the local plan, that delineates areas for housing development, and then the power to grant the building permit as soon as the local plan is approved.
After a development is completed is granted a “certificate of completion”, checking that what has been built corresponds to the specifications of the building permit. Afterwards, the municipality does not have any interference with the management of the buildings. One exception is related to social housing ( HLM, for Habitations à Loyer Modéré), which are managed by specific bodies, in which the municipality is involved. The mayor can chair the municipal HLM company.
However the management is the responsibility of the HLM company, and it is submitted to a set of regulations, including the amount of the rent , which are decided at the national level.
Vincent Renard
CNRS France