DESCRIPTION
In July 2012 and during the period of allegations and consultations to the preliminary draft of the Law of Territorial Planning, Urbanism and Landscape of the Valencian Community (LOTUP), the Chamber of Commerce of Castellón commissioned AUG-ARQUITECTOS SLP, for its proven experience in the field of urban planning and spatial planning, which drafted the allegations that said entity was going to present.
Months before, on April 13, 2012, the Consell had approved the draft of the Draft Reform of the Valencian Territorial and Environmental legislation. With this initiative, the Valencian legislator endorsed the need to address the renewal of an autonomous legislative framework that had led to excessive complexity and hypertrophy, as a result of a set of supervening circumstances. Draft of a preliminary project that, in the words of the head of the Ministry of Infrastructure, Territory and Environment, sought to articulate in a context of crisis “socioeconomic dynamism and job creation in the whole of the territory”, as well as “promote dynamism socioeconomic and job creation in the whole territory ”. For this, the Valencian legislator was going to proceed to the recasting of at least four laws, namely: the Law of Spatial Planning and Landscape Protection, the Valencian Urban Planning Law, the Law of Non-developable Land and the Regulatory Law of the Golf Courses), along with the Territorial and Urban Management Regulations and the Landscape Regulations, as well as the set of laws or regulations that had modified them and how many norms were in opposition to what the preliminary project to evaluate had. It was, therefore, a profound reform that aspired to create a single rule that would contain a simpler, clearer and more effective legal regime, which should contribute to shortening the deadlines for preparing and approving land-use planning and urban planning instruments, thereby avoiding delays in the administrative processing of these instruments , which seriously affected investments in the territory and the citizen interest in its formulation.
After a thorough analysis, in a report prepared by AUG -ARQUITECTOS SLP for the Castellón Chamber of Commerce and which was transferred in its entirety to the Ministry , concluded the following: The Draft Law that is the object of this D ictamen aims to address the entire legislative body that regulates the Planning of the Territory, the Urbanism and the treatment of the Landscape in the Valencian Community. It is therefore a huge task whose result, at least for what has been known so far, is not favorable due to the contradictions, shortcomings and poorly justified proposals it proposes. The eventual result of applying the text in these terms, far from helping to simplify and clarify the disciplines being addressed, could lead to a scenario of legal insecurity and, as a whole, constitute a setback in some substantial aspects.
The preliminary draft introduces a poorly structured body of provisions around more or less clear concepts, such as the so-called Green Infrastructure, the Territory or the Landscape, the references are constant throughout the text examined and become the protagonists of the eraser we know. On the contrary, other basic urban development institutions, with a long and effective track record in the Spanish legal system, such as the “Soil Classification”, disappear and are replaced by a set of hardly cohesive and dubiously effective provisions.
The liquidation of the effective guardianship of the administrative body to control and approve certain planning figures we consider that more than an “innovative measure”, it can be an irresponsible experiment with unforeseeable consequences.
Technically, the draft law suffers from the rigor required of a document of this nature and ambitions, and seems to reflect a certain amount of haste or lack of coordination, perhaps due to the excessively wide horizon set by its drafters. The final writing of the document, at least, should correct all these formal errors.
The analysis of such an ambitious document is not easy and summarizing the highlights in a few conclusions is not an easy task either. In any case, we understand that the final conclusions of the analysis of the LOTUP preliminary project analyzed are the following:
- To the extent that “Territory Governance” requires that all government actions must foster a culture of agreement between all levels, horizontal and vertical of the administration and seek the necessary coherence of its territorial policies, where the participation of agents social is one of the fundamental elements of the good governance of the territory, CITMA must fill the gaps that in terms of Citizen Participation have characterized the process of preparing the LOTUP Draft by presenting a closed and apparently cohesive normative text within the established variables in the Statement of Reasons for the Preliminary Draft, for which reason it is plausible to conclude that the decisions have already been taken beforehand and the process of participation and public consultation could have null or very limited significant consequences in the procedure, which in case of consummation, would delegitimize its content. Therefore, CITMA must promote the process that is now beginning to overcome such a significant structural deficit, making it possible for the contributions of citizens and social agents to be taken into account effectively in the final result of the legislative project and not limit themselves to forming a mere procedural step of no incidence on the final result, as has occurred to date.
- The suppression of the autonomous urban planning body and the definitive autonomous approval of the Detailed Planning Plans in favor of the local administration does not constitute a requirement of the basic legislation on environmental evaluation of the plans. Faced with the current model of autonomous final approval of the General Plans in which local autonomy is fully guaranteed (the participation of the municipality in the procedure until provisional approval), and also guarantees the adequate protection of supra-municipal interests thanks to the decision Final corresponds to the Autonomous Community, the model proposed in the LOTUP will make it impossible to protect the supra-municipal public interests of the Generalitat Valenciana in matters of territorial and urban policy. On the other hand, the transfer of the powers to the Local Administration for the definitive approval of the general planning instruments does not take into account the heterogeneity of the Valencian local administrative structure , nor the extra costs in human and material means that the measure will entail in order to assuming these with the due guarantees the effective protection of the public interest without this causing losses in the legal security of their pronouncements.
- As a consequence of the ruling of the Constitutional Court on the jurisdiction of the State and the Autonomous Communities in matters of land use and urban planning, State legislation cannot use the urban technique of classifying land, nor the concepts of land. urban, urbanizable and non-urbanizable, because it does not have recognized competencies for it. Competences that must necessarily be assumed by the autonomous legislator and the approach addressed on this issue in the LOTUP is not justifiable or convenient . Therefore, the LOTUP must incorporate in its articles the technique of “land classification”, with its traditional classes of urban land, urban land and non-urban or rural land for the effective exercise of its powers.
- The LOTUP must introduce corrective elements of proportionality in the documentary burden, complexity and scope of the sector studies of the General Plans depending on the profile of the municipality, its territorial affiliation, resources and population fundamentally, exonerating the obligation to submit costly sector studies or proportionally delimiting its scope in those municipalities that due to its small population and management capacity, it is redundant and unapproachable in economic terms to apply the same criteria and elements of analysis as in the rest of the municipalities of the Valencian Community . With this measure, efficiency and agility would be gained in the elaboration of the General Plans of the smallest municipalities, which could, by means of this formula, regulate their urban needs, which in most cases, aims to exclusively solve basic survival needs for the municipality. .
- The LOTUP must promote the introduction of mechanisms and procedures that promote the interoperability of the different administrations and agents through electronic services, in order to progressively “normalize” the production of the new urban planning in the municipalities of the Valencian Community for its integration into a single document repository. To this end, the regulatory development or planning instruction oriented to the production, exploitation and consultation of planning instruments is proposed, which enables effective compliance with Directive No. 141.- “Public Participation” of the ETCV . For its development, it would be necessary for LOTUP to make express mention of the reference cartography to be used as a graphic basis for planning (in principle and except for better criteria, based on the SIOSE methodology); make reference to the production of metadata in the spatial data implemented in the document repository that is generated for this purpose (IDE-CV), for its correct adaptation to the Community Guidelines on integrated information and thus making its intensive consultation possible and systematized through the Terr @ SIT platform , etc…, passing through the characterization of the concepts, definitions and abbreviations to be used in the new planning instruments, including the structuring of minimum content to be developed in each of the planning instruments enabled by current legislation (general planning, development, etc…).
- The LOTUP must completely review the content of the articles included in Book II.- “Programming and Management” (Art. 69 to Art. 211, both inclusive), since it proposes the establishment of a new statute in business relations ( rights and duties), of the developer and the property of the land in the development of the Programs that is disassociated from the management model established in the current Valencian urban planning legislation that was expressly endorsed in the Judgment of the European Court of Justice of May 26, 2011 , in relation to the procedures for the award of public works contracts. Returning the “model ” to the LRAU , as proposed in the LOTUP, implies assuming a certain and unnecessary risk of re-exposing the autonomous urban framework to the discretion of the Courts, with the final wear and tear that this would entail, destroying the Today it is the LUV’s greatest strength, that is, that the procedure for awarding the PAIs in their current configuration has been expressly endorsed by the European Court. For all these reasons, Book II of the LOTUP must be revised to keep the “model ” established in the LUV unchanged in everything related to the “Programming and Management” of the PAIs .
- L to LOTUP be integrated into the content of the articles included in Book III “Urban Discipline” (Art. 212 to Art. 267, inclusive), the creation of an “Agency for Protection of Urban Discipline” as a administrative body with its own legal personality, decentralized and predominantly technical in nature, of a consortial nature, which would exercise the autonomous powers in the field of Urban Discipline, as well as those of those municipalities that voluntarily decide to consort with the Agency.
- The LOTUP must standardize the scope of the authorization of the actions subject to the “Responsible Declaration” provided for in Article 212.2.d), to the literal content indicated in the Tenth Additional Provision of the LUV.
- The LOTUP must adapt the “General Regime of Urban Infringements and Sanctions”, with regard to the identification of the “responsible subjects” established in Art. 247, to the regime of responsibilities established in the Building Ordinance Law and homogenize the term established for the prescription of the infractions established in the “General Regime of Infractions and Urban Sanctions”, in view of the contradictions detected in Art. 232 (15 years, regardless of the seriousness of the infraction) and Art. 248 (4 years for serious offenses; 1 year for minor offenses).
- The LOTUP must adapt the “General Regime of Urban Infringements and Sanctions”, regarding “actions in listed buildings”, to the sanctioning regime established in the current sectorial legislation established in Title VII.- “Of Administrative Infractions and their Sanction”, of Law 4/1998, of June 11, of the Generalitat, of Valencian Cultural Heritage and Title IX.-“ Responsibilities and Sanctions ”, of Law 14/2003, of April 10, of Heritage of the Generalitat Valenciana.
DETAILS OF THE PROJECT
Prometer: Chamber of Commerce, Industry and Navigation of Castellón