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INTRODUCTION TO URBAN PLANNING AND THE BASIC CONCEPTS OF LEGAL ARCHITECTURE

Maria Teresa Broseta Palanca Maria Emilia Casar Furió Universitat Politècnica de València

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INTRODUCTION TO URBAN PLANNING AND THE BASIC CONCEPTS OF LEGAL ARCHITECTURE

Maria Teresa Broseta Palanca & Maria Emilia Casar Furió Universitat Politècnica de València

INTRODUCTION TO URBAN PLANNING AND THE BASIC CONCEPTS OF LEGAL ARCHITECTURE1

MARÍA TERESA BROSETA PALANCA ASSOCIATE PROFESSOR, DEPARTMENT OF URBAN PLANNING. PHD IN ARCHITECTURE

MARIA EMILIA CASAR FURIÓ (AUTHOR AND COORDINATOR) HEAD PROFESSOR OF UNIVERSITY, DEPARTMENT OF URBAN PLANNING. PHD IN LAW UNIVERSITAT POLITÈCNICA DE VALÈNCIA translation collaborator: Jacinta Mary Flynn

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In accordance with the appropriate effects, with the Spanish edition completed, improved and updated in CASAR FURIÓ et al. “Legal Architecture and Urban Legislation for Architects”, Tirant Lo Blanch, Valencia, 2023. La presente bajo el marco de la Convocatoria UPV – no borders del plan de acciones estratégicas para la internacionalización de la UPV (publicada el 16 de noviembre de 2021), Subprograma -1.

INDEX FIRST PART: Introduction to Urban Planning and Management

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CHAPTER 1. Introduction. Urban Planning and Management

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1.1.

Urban planning as an interdisciplinary science

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1.2.

Legal framework of urban planning

10

1.3.

Broad and Basic State Legislation

13

1.4.

Legislation from Regional Government

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CHAPTER 2. The land property structure and the management land system

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2.1 Urban regulation on land ownership

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2.2 Basic land situations

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2.3 Land management system in Valencian Community

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2.4 Landowner Statute

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2.5 Uses and exploitation of rustic land

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CHAPTER 3. The urban planning tools

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3.1 Structural zoning in territory

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3.2 Detailed zoning in urban land

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3.3 Planning levels of design

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3.4 Public amenities network

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3.5 Planning documents

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CHAPTER 4. Environmental and landscape assessment in planning

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4.1 Territorial Strategy of the Valencian Community

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4.2 Environmental Assessment

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4.3 The public participation process

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CHAPTER 5. Cultural heritage protection in urban planning

93

5.1 Protection legal framework

93

5.2 Planning tools for protection

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5.3 Duty of preservation and derelict status

100

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CHAPTER 6. Urban management of plans

105

6.1

Urbanisation Performances

105

6.2

Management of Integrated Proceeding Programs

109

6.3

Basic concepts on urban management

111

6.4

Management permit for developable land

114

6.5

The process of Reparcelling

116

6.6

The process of Expropriation

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CHAPTER 7. Urban Discipline

121

7.1

Urban Planning Permissions or Urban Licenses

122

7.2

Building Permissions

125

7.3

License proceeding

128

7.4

Liability Statements

131

7.5

Environmental Permits

133

7.6

Urban infringements

144

7.7

Protection of urban legality

147

7.8

Penalties for urban infringements

149

SECOND PART: basic concepts of legal architecture

LESSON 1. The Law……………………………………………………………………………………153 LESSON 2 .Architect. the profession. professional association . Code of Ethics . participants and responsibilities……………………………………………………………………………………...……157 LESSON 3. Property and real rights…………………………………………………………………..163 LESSON 4. Civil easements………………………………………………………………….....……..167 LESSON 5. Administrative easements…………………………………………………………….….171 LESSON 6. Public administration and auditing in housing developments……………………..…177

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LESSON 7. Building works execution contract or building works contract. civil contracting – between private individuals or legal entities………………………………………………………….181 LESSON 8. Public administration and auditing in housing developments………………………..185

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FIRST PART INTRODUCTION TO URBAN PLANNING AND MANAGEMENT CHAPTER 1.- INTRODUCTION. URBAN PLANNING AND MANAGEMENT Index: 1.1. Urban planning as an interdisciplinary science 1.2. The legal framework of urban planning 1.3. Broad and basic State legislation 1.4. Legislation from Regional Government

1.1 Urban planning as an interdisciplinary science The term urbanism appeared in 1910 with a character of undeniable ambiguity. It was unclear how to assign it to the most characteristic parts of a city- engineering and city planning, nevertheless over time it began to take on shape and meaning. Currently, urban planning continues to be a new science and is still in the midst of its formation; adjusting and consolidating itself as time goes on.

The term itself is not an easy one, as it is not only concerned with determining factors referred to as “quality of urban life” (public facilities, traffic factors, sanitation services, natural features, etc.), but also with everything that refers to the fiscal tax aspects and various other elements, which has led some authors to define urban planning as a tool of general social structuring.

It is characterised in this way because the term urban planning (from the Latin urbs, meaning city) has an etymological meaning which does not correctly express its full conceptual context. The city cannot be considered as an isolated element from the terrain that surrounds it: it is inserted into the fabric- that is - the land that comprises it and surrounds it. In this way, the word urbanism does not correspond as much with the word city as it does with terrain. Urban planning is the zoning (or organization) of the land where a modern city is constructed and cannot be considered as an object of isolated concern (territorial planning).

For this reason, we will see that, in the first place, urban plans organize municipal districts or even larger areas of land.

Urban planning should necessarily be an interdisciplinary science, one that unites different and distinct sciences such as Planning, Urbanism, Urban Economy, Sociology, Urban Law, etc. In

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practice, all of these are synthesised in one document: the Zoning Plan, written either by an architect or a civil engineer.

In its zoning, the plan seems like an aggregation or juxtaposition of independent parts and as a result make any global view of the plan difficult. In the zoning, the fluidity of the plan’s objectives is excluded, and therefore becomes an excessively rigid approach. At times an unjustified fragmentation of the urban fabric is caused, with abrupt changes between one zone and the next. To prevent these discrepancies, it is important to update the zoning plans since those used 70 years are invalid.

The urban law is the Legal Code that regulates city planning according to its functional requirements and performance following certain principles that integrate the political-legislative assessment of the property in order to achieve the public good.

1.2 The legal framework of urban planning Considering the historical development of urban planning legislation and regulation in Spain, note that two different perspectives of the city and its space are considered: 1.- By standards on the local level: those which come from the Autonomous Government and that have been historically referred to as municipal ordinances.

2.- By standards on the state level: those which come from the Autonomous Government (or from the Central Administration) including: Alignment Plans, Laws of Urban Expansion Laws, Sanitation and Improvement Laws, Laws on Hygiene Standards, Special Legislation and the Land Law. For the most part these play a key role within Urban Law. In the 18th century there was what was called the Science of the Polis (from the Greek polis meaning city) which regulated all State activity (currently referred to as Administrative Law). Part of it referred to the regulation of the city as a physical entity, carried out through the municipal ordinances - which were prepared by the corresponding local councils- that governed life in that city or village. Municipal ordinances regulated some fairly complicated issues such as: trade fairs, markets, fires, taxes, construction (and urbanisation), etc.

In 1805, “The Newest Collection” appeared, a written compilation of diverse regulations that contained the following mandate: “All cities, villages and other places of our kingdoms shall be governed, according to the ordinances and common practice, by their mayors and councillors.”

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The ordinances were, until the 18th century, like a statute of local life, passed down by the city or town council. Since the 18th century, a certain rivalry has appeared between centralised and local authority, which consequently resulted in many matters previously covered by the municipal ordinances falling newly under state control, with the exception of Construction and Urbanisation which remained as municipal regulations and was eventually referred to as building ordinances.

This is valid until the year 1956 when the Land Law was published. From then on, the building ordinances were no longer separate, individual entities but are integrated into the Plan for Urban Development. Furthermore until 1956 the ordinances had been regulations enacted and enforced by the local municipal councils themselves, however since then we have found ourselves before a shared rivalry, as the plan is jointly carried out by the City and State Authorities.

A. Special consideration of the Spanish Constitution of 1978 and the distribution of powers between the State and the Autonomous Communities The Spanish Constitution of 1978 is the supreme law of the Spanish State. All matters concerning the state must be legislated around the Constitution. In addition, in article 2, it establishes and recognises the unity of Spain and guarantees the right to autonomy of the nationalities and regions that constitute the Spanish nation, distributing the powers of the State and the Autonomous Communities in some legal matters (sections 148 and 149).

The Spanish Constitution (1978) regulates important facets related to urbanism in sections 45 to 47.

Section 45 of the Spanish Constitution states that everybody has the right to enjoy an appropriate environment to their personal development, as well as the duty to preserve it.

Public authorities will safeguard the rational use of the natural resources, in order to protect and improve the quality of life, to defend and restore the environment with social support. Moreover, those who break the provisions previously mentioned will have criminal or administrative sanctions put upon them and be legally obligated to repair the damage.

Public authorities will grant the preservation and promote the improvement of the historical, cultural and artistic Spanish heritage, no matter their juridical character or property. The criminal law shall punish any offences against this heritage (Section 46).

Spanish citizens have the right to enjoy decent housing. The public authorities must promote the correct conditions and the appropriate standards to achieve this. Land use must be regulated to prevent speculation. In addition, the community will share the capital gains from the urbanisation

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proceedings by administration (Section 47).

B. Competences on Urbanism From the moment the Spanish Constitution was approved, the Administrative and Institutional Structure changed from an only central administrative system to a mixed one, central and regional, being regulated the competences’ distribution in the Sections 148 and 149.

State’s Competency - Railways and ground transportation that cross the territory of more than one Autonomous Community; general system of communication; motor vehicles traffic, mail and telecommunication, air and underground cables.

- Legislation, regulation and awarding licenses of hydraulic resources when the water flows in more than one Autonomous Community. Hyrdo-electric installations licences when the profit concerns other Communities, or the lines of energy transportation goes beyond the Community territorial scope.

- Basic legislation about environment preservation, without detriment to the additional protection norms by Communities. Basic Legislation about hills, forests and livestock routes.

- Public Works of general interest or those developed in more than one Autonomous Community.

- Preservation of cultural, artistic and monumental Spanish heritage against exportation and plundering. Museums, libraries and archives property of the State without detriment to Communities’ management.

Autonomous Communities’ Competency - Territorial zoning, urban planning and housing.

- Public Works of Community interest in its territorial scope.

- Railways and roads into the Community’s Territory and the transport by these means or by wire.

- Ports of haven, ports, airports and those with that do not engage commercial activities - Agriculture, cattle industry, according to general economic system.

- Woodlands and forests.

- Environmental management - Projects, constructions and exploitation of hydraulic profits, channels and irrigation systems of Communities’ interest; mineral and thermal waters.

- Monumental heritage in Autonomous Communities.

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1.3 Broad and basic State legislation The Revised Text of Land Law 7/2015 of October 30th (RTLL-15) and sections of the earlier legislation which weren’t repealed, with amendments introduced in Law 8/2013 (26 June), instituting urban rehabilitation, regeneration and renewal, only regulates basic land statuses (urbanised and rustic land). As a result, it does not consider urban-planning techniques such as land classification, and therefore under the guidance of Spain’s Autonomous Communities.

“This is not an Urban Law, but a law concerning the legal regulations on land and the equality in the exercising of those constitutional rights associated with the interests of its management is constitutionally entrusted to the State” (taken from the Preamble).

- Regulation on the Inscription in the Official Land Register (R.D. 1093/97, 4 July). (Standard supplement regulation on the application of the Law on Mortgage.)

Additional State Legislation: -

Revised Text on Land Law and Urban Planning (R.D. 1346/76, 9 April).

-

Regulations on Planning (R.D. 2159/1978, 23 June).

-

Regulation on Urban Management (R.D. 3288/1978, 25 August).

-

Regulations on Urban Discipline (R.D. 2187/1978, 23 June).

1.4 Legislation from Regional Government The legislation on territorial zoning, urban planning, landscape and non-developable land is the result of these combined laws: Law 5/2014, July 25th, on Territory, Urban Planning and Landscape in Valencian Community.

Decree 1/2011, January 13th, by the Autonomous Government on Territorial Strategy in Valencian Community.

Decree 166/2011, November 4 th, by the Autonomous Government amendment of Decree 1/2011 on Territorial Strategy in Valencian Community.

Decree on 26 April 1999, from the Autonomous Government of Public Works, Urban Planning and Transport, for the approval of the Zoning Laws in Urban Planning of the Valencian Autonomous Community

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At the beginning of 2019: Law 1/2019, of February 5, of the Generalitat (Valencian autonomous government), amending the LOTUP (Ordenación del Territorio, Urbanismo y Paisaje, de la Comunitat Valenciana/Territorial Planning, Urban Planning and Landscape Ordinances was approved and published in the Official register of the Generalitat (DOGV) on February 7. This amendment maintains the structure of the 2014 Law, as well as most of its contents. However, a considerable number of aspects and determinations have been altered to a greater or lesser extent.

Current Valencian urban legislation: it is constituted by Legislative Decree 1/2021, of June 18, of the Council for the approval of the Consolidated Text of the Law on Territorial Planning, Urban Planning and Landscape Ordinances (TRLOTUP 2021).

As a result of the clarification and harmonisation of the different laws that it constitutes, the numbering of the articles of the consolidated text has been adjusted, as a consequence of the different repeals and incorporations produced previously and consequently the referrals and agreements among them.

Finally, on January 1, 2023, the various modifications produced in the years 2021 and 2022 are included in a consolidated version.

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I. CHAPTER 2.-LAND PROPERTY STRUCTURE LAND MANAGEMENT SYSTEM Index: 2.1. Urban Regulation on land ownership 2.1.1. Right to land content 2.1.2. Owners’ duties and charges 2.2. Basic Land situations 2.2.1. Rustic Land 2.2.2 Urbanised Land 2.3. Land management system in Valencian Community 2.3.1. Urban Areas 2.3.2. Developable Land 2.3.3. Non-developable Land 2.4. Landowner Statute 2.4.1. Landowners legal statute in urban areas 2.4.2. Landowners legal statute in developable land 2.4.3. Landowners legal statute of non-developable land 2.5. Use and exploitation of non-developable land 2.5.1. Directly applicable rules 2.5.2. Uses and exploitation based on zoning in a non-developable land 2.5.3. Circumstances permitted and requirements 2.5.4. Actions subject to municipal license 2.5.5. Legal handling of Community Interest Proceeding.

2.1 Urban regulations on land ownership The 2015 Land Law deals with basic conditions that guarantee equality in the exercising of the rights and the fulfilment of constitutional duties related to the land; and also establishes an economic and environmental basis through its legal regulations, their evaluation and the patrimonial liability of public administrations. The basic criteria of land use are: -

That the regional and town planning assign a planned function which facilitates only the conversion of rustic land to urbanised land essential to satisfy needs, prevent speculation

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and preserve the rest of the rustic land from being urbanised.

-

The allocation of adequate and sufficient land for productive purposes and for residential use.

A reserved areas for a proportionate share of housing subject to the public protection system (at least the land necessary for 30% constructible residences provided by the urban planning on rustic lands that will be included in actions of new development and 10% in urbanised land to be presented for actions of urban reform or renewal). If the situation arises or in exceptional cases, smaller land reserves would be allowed.

-

To carry out planning with principles of accessibility, equality, mobility and energy efficiency criteria; guarantee the water supply; prevent the risks from natural disasters and serious accidents; provide prevention and protection against pollution and limit its consequences in terms of human health or the environment.

This law includes the amendments by the Law on Urban Rehabilitation, Regeneration and Renewal 8/2013, which has as objectives: -

To strengthen urban building rehabilitation, regeneration and renewal, eliminating the currently existing obstacles and creating specific mechanisms that make it viable and possible.

-

To provide a suitable regulatory framework to allow for the reconversion and reactivation of the construction sector, finding new areas of activity, specifically in urban building rehabilitation, regeneration and renewal.

-

To encourage quality, sustainability and competitiveness, as much in construction as in the land, bringing our regulatory framework to the European framework, particularly in relation to the objectives of efficiency, energy conservation and countering against the lack of energy.

In terms of land use and urban planning, the 2015 Land Law states they are to be considered public functions of general interest, and that their direction and management correspond to the public administration. It also notes that the community will participate in the capital gains that are generated and recognises the public’s right to information and participation (Article 25).

This same article also reflects the principle that local governments must encourage citizen participation. In Title Deed 1, where “Basic Conditions for the Equality in the Constitutional Rights and Duties of the Citizens” are discussed, the citizens’ rights and responsibilities are outlined (Article 5 and 6) and recognise the right of individuals to private initiative in development and construction,

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irrespective of whether or not they are landowners, according to the procedures on publishing public offers and public forums (Article 5).

Articles 7, 8 and 9 introduce the beginnings of content on the right to property, which are then further developed in the following chapter. The right to build implies that it had been previously made into property, conditional on the fulfilment of the duties and responsibilities assigned by their own regulations and in the terms provided by the legislation on regional and urban planning. These urban responsibilities can be summarised as: to cede free land in exchange for public grants, to finance the urbanisation works and to hand over part of the weighted developable use.

2.1.1. Right to land content The powers included in the right to property (Article 11) are the use, enjoyment and exploitation of the land in accordance with its state, classification, objective characteristics and intended purpose. It also includes authority over the layout of the land, provided it does not infringe upon the regulations on developed estates and plots.

The lands in rustic areas will be used according to their nature (agricultural use, livestock, forestry, hunting etc.) which involves the rational use of natural resources, according to the limits stipulated by laws of land management and urban development. Exceptional uses may be permitted in the public or social interest to contribute to the management and development of rustic areas or because they need to take place in a rustic environment.

On the land situated in rustic areas anticipating a conversion to urbanised areas, the right to property includes the following: (a) The right to consultation with the authorities responsible for urban planning, on plans, projects and construction works; (b) The right to develop and present the appropriate legal paperwork provided that the the public initiative has not been previously reserved by administration. (c) The right to participate in the execution of urban construction within regulations on equitable distribution of benefits and liabilities among all affected property owners in proportion to their contribution. (d) The execution of construction work and its uses of a provisional nature that are authorised unless expressly prohibited by law and are compatible with the urban

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development plan. If the use has been deemed illegal, construction shall cease and, in such a case, be demolished, without the right to any compensation, when so agreed on by the City Administration.

On the land situated in urban areas, the powers of the right to property include, in addition to those set out in subparagraphs (a), (b) and (d) of the preceding paragraph, where appropriate, include the following: a) Completing the urbanisation of the land to meet the requirements and conditions established for its construction. b) Building on a unit/plot suitable for this purpose by the stated deadlines and carry out the necessary actions to maintain the building in a good state of conservation. c) Participating in the implementation of actions in urban transformation within the regulations of fair distribution of benefits and burdens, as appropriate.

The ability of the owner to build the stipulated number of floors on the subsoil that correspond to the the laws, restrictions and easements that require the protection of the public domain.

2.1.2. Owners’ duties and charges The duties involved in the right to land ownership (Articles 15 to 17) compatible with the plan as a regulation of that currently exists, kept in good condition and, in all cases, in the enforceable conditions of safety, health, accessibility and ornamentation; work on its improvement and rehabilitation to the extent of the legal duty of its maintenance.

If we are dealing with rustic land for the purposes of Land Law, or is vacant of any building, the owner must pay for the necessary works to maintain the land and its plant mass in good condition to avoid natural or third party damages?

In the case of buildings, the legal duty of conservation shall include, in addition, the completion of the work and the construction needed to meet the basic requirements established by the Law on Construction Works and to adapt them to the enforceable legal standards at all times.

If the rustic land is not subject to urbanisation policies, (in addition to the above) the owner will have the duty to meet the economic benefits that establish, if necessary, the legitimisation of the private uses of the land not related to its primary exploitation. Furthermore, the owner will pay where

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appropriate, to implement infrastructure connecting licensable facilities and constructions to the networks of general service, and to deliver them to the appropriate authority for its incorporation into the public domain, where it should form part thereof. On this land, urban subdivision is strictly prohibited, to the point that no division or segregation can be carried out if it be contrary to the provisions in any agrarian or forest legislation, or laws of a similar nature.

When the land in a rustic situation is subject to urban transformation, the owner shall assume all costs related to the participation in the statutory duties of promoting the action, within a fair distribution of benefits and burdens. The owner will also give the person responsible for carrying out the works access to the assets under the terms of legislation on regional and town planning.

In urbanised land, the parties involved must complete the urbanisation of the land with the requirements and conditions established for its construction. When the administration imposes urban building rehabilitation, regeneration and renewal, the property owner must participate in its implementation in accordance with regulations on the distribution of benefits and financial burdens.

On all of the land in an urban situation, where so provided by the urban planning, the owner meet the established deadlines according to the applicable regulations. Any act of construction must meet the mandatory will conformity, approval or authorisation of the administration. If these conditions are not met, then the plan must be refused. In no case may one acquire by administrative silence any powers or rights which violate regional or urban planning.

2.2 Basic Land Situations In order to prevent land speculation, it is placed in one of the basic situations established by Land Law: 2.2.1. Rustic Land This status is defined as all the cases in which land cannot be included within the developed land status. This is therefore a residual status. We can speak of three rustic land cases: a) Preserved rustic land: it is the land that -in regard to its values- must be preserved from urban development. It is, according to the urban planning legislation, the nondevelopable land protected from construction. b) Transformable by city planning development: it is the rustic land kept for development

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