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Regulatory Takings and the Contested Future for Dutch Planning

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Regulatory Takings and the Contested Future for Dutch Planning DRAFT – DRAFT – DRAFT Do not quote or cite without permission of the authors Regulatory Takings and the Contested Future for Dutch Planning Harvey M. Jacobs 12 and Erwin van der Krabben 1 Professor, Department of Urban and Regional Planning and Nelson Institute for Environmental Studies, University of Wisconsin-Madison, USA, and Visiting Professor, Institute for Management Research, Department of Geography, Planning and Environment, Radboud University Nijmegen, Nijmegen, The Netherlands; [email protected] 2 Professor, Department of Geography, Planning and Environment, Radboud University Nijmegen, Nijmegen, The Netherlands, and Professor of Real Estate, School of the Built Environment, University of Ulster, Northern Ireland; [email protected] Delivered to the 54th Annual Meeting of the Association of Collegiate Schools of Planning (ACSP), Philadephia, PA October 2014. -1- I. Introduction mixed situation for regulatory takings among the countries of Europe (e.g. Dutch planning – in sectors such as Alterman 2010). A minority view is that urban, regional, environmental, transport, there is a broad form of regulatory takings and housing – is globally admired. Within emerging (e.g. Jacobs 2008b). the Dutch system planners appear to have authority and to be respected, and Dutch Land use planning in the Netherlands plans seem to be implemented. From an in the current period is structured by several American perspective, one of the reasons for recent changes, including: a crisis in the this seems to be the fact that Dutch planners traditional approach of public land operate within a social or legal climate with development, court decisions which very different attitudes about private decrease the role of the central government, property. In particular there does not appear an increasing interest in a new approach to to be anything equivalent to the American land development where the public sector social reverence afforded private property, will broadly define land use, but the private which can lead to intense social conflict over sector will act to realize land use private property’s management via planning, opportunities, a new, 2008, planning law, nor a legal tradition focused upon regulatory and preparations for again a new, but now takings which functions as a political brake more comprehensive planning law to be on the development and implementation of implemented after 2015 (van der Krabben planning policy. But the situation of Dutch and Jacobs 2013 discuss several of these planning is not quite what is seems and the factors in some detail). situation is changing. Part of that change is about regulatory takings. The Dutch system of planning law and practice has long had a mechanism for The literature evidences a conflict regulatory taking, but it has been little called about the status of regulatory takings in upon by landowners, it has resulted in Europe. (For the purpose of this paper modest yearly payments and it is little “regulatory takings” means the obligation of discussed by planning academics. The low government to compensate a landowner level of payment and the generally low level when governmental action is deemed to be of recognition of land-based property rights too onerous. This can be the result of as an issue for planners in the Netherlands is regulatory actions on a parcel or it can be in decided contrast to, for example, the from the spillover effects of other parcels situation in the U.S. (see for example the granted permission via governmental difference in discussion in van der Cammen action.1) The majority view is that there is a et al. 2012 versus Jacobs 2010; however, note the cautionary closing discussion in 1 Alterman (2010) defines these categories of takings actions as: major indirect takings (a decrease in an owner’s takings (where virtually all land value is lost value as a result of negative externalities as a result of a regulatory action), direct from neighboring land as a result of land use takings (a decrease, but not a total decrease, activity expressly permitted through in the value on an owner’s parcel), and government regulation) -2- Needham 2014: 218; this discussion is private property and the appropriate role of expanded upon in section V of this paper).2 government are affecting planning, even in cultures where planning has long-standing The major questions that structure respect. this research are: a) is regulatory takings changing in the Netherlands, as planning in In subsequent sections we discuss the general is under pressure to change, b) if it is changing Dutch planning context, the global changing, what factors best explain the context for regulatory taking and social change in regulator takings that is occurring, conflict over property, regulatory takings in and c) what might be the impacts of this The Netherlands, and end with speculation change for plans and planning practice. on the future of regulatory taking and discussion of necessary research. The research uses institutional and qualitative methodologies. These include II. The Changing Dutch Planning the authors’ knowledge of Dutch planning, Context selected interviews with key planning and legal experts, and a discussion of relevant Dutch planning – in sectors such as court decisions, and an examination of the urban, environmental, transport and housing 2008 Spatial Planning Act. – is globally admired. The Dutch themselves note how to the outsider The We conclude that regulatory taking is Netherlands can seem to be “a planner’s likely to become a more significant paradise” (Faludi and van der Valk 1994). component of the Dutch institutional Buitelaar (2010: 349) begins his landscape. While we anticipated selecting examination of changes in Dutch land policy among a set of hypotheses to explain why (a key element of Dutch planning policy) by this was true, we find instead that we are asserting “in the international literature and most comfortable arguing that it is all the discussions on land management, Dutch hypotheses, taken together, which offer a land policy is often presented as a special way to understand the changes that are case, sometimes even as a role model for unfolding. other countries.” And in a similar vein, Needham (2014a: xv) in the very first As non-Dutch planners have long sentence of his preface offers up that “there looked to Dutch planning as a model, is a lot of interest by professionals, understanding how it is transforming and the politicians and the interested layperson . likely consequences of these changes could in the way the Dutch use their land. Those help in: a) further refining current thinking ‘foreigners’ make study trips to the about the form and consequences of a multi- Netherlands so that they can see and marvel actor negotiated planning system and b) at it . how do the Dutch achieve it?” understanding the way global debates about A partial answer has to do with Dutch attitudes. Faludi (2005: 285) notes in 2 Alterman (2010: xix) says of the a volume on comparative planning cultures, U.S. “(n)owhere else is the property rights the Dutch are “a culture with a soft spot for debate as intensive and high profile . ” -3- planning.” Within the Dutch system . has reached almost mythical proportions” planners appear to have authority and to be (Buitelaar 2010: 351).4 Recent work both respected, and Dutch plans seem to be reflects on the Dutch successes in planning implemented. In this same volume, Faludi (in an almost self-congratulatory fashion) (2005: 292-293) explains that planners “. and seeks to clearly explain to an get the opportunity to operate as international audience how it is that the professionals,” and in general they “. are Dutch have accomplished what they have shielded from political interference.” This (van der Cammen et al. 2012 on the former, is so because the Dutch citizenry Needham 2014a on the latter). traditionally has not regarded the state (in this case public sector planners) as an alien Yet this traditional approach to and force, in fact “trust in the state is the basis success of planning is in the process of for the legitimacy of (all) Dutch change. Faludi (2005: 292) anticipated governmental action” (Faludi 2005: 294). such, even before the 2008 global economic crisis, when he noted that “. no guarantee The exceptionalism of the Dutch exists that the favorable conditions under with regard to spatial organization and social which Dutch planners operate will persist. order and the recognition of such (if not . So the future is open . ..” Five years later always admiration for such) is long standing. Buitelaar (2010) goes further when he titles Roodbol-Mekkes et al. (2012) note a steady his article “Cracks in the Myth,” and stream of positive observations on Dutch Roodbol-Mekkes et al. (2012: 378) added to planning since the 1960s by British, this by suggesting that Dutch planning American and Israeli scholars. In a recent doctrine is in “disarray,” asserting that “the history of Amsterdam, Shorto (2013) talks long-undisputed position of spatial planning about how in the 1600s foreign visitors to in the Netherlands is under attack.”5 And the Netherlands were amazed by the Dutch these concerns about the future of Dutch attention to order, planfulness, social planning are now part of a broader literature cooperation and courtesy. Interestingly (to which this paper is a contribution) noting Shorto also points out that the Dutch have a challenges to the conceptualization, long-standing tradition where they skillfully approach and practice of planning (see, for blend social cooperation and individualism, especially with regard to land management.3 4 Buitelaar’s comments are The long-standing, but especially specifically about land policy. Yet it seems post World War II approach to planning, is reasonable to generalize it to all spatial an approach that “is often praised . .” and “. planning, especially because of the key role of land for planning.
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