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St Barth, French West Indies Law Firm

The Cancellation of the Town-Planning Map is a Chance for the Collectivity

Before drawing lessons from the cancellation of the town-planning map by the Administrative Court, a chronological summary of events is in order.

Two town planning map projects were established by the town planning commission in 2008 for the first one and 2009 for the second, but they were never realised.

A third project was adopted by the Territorial Council on November 23, 2010.

This was the first town planning map of Saint Barthélemy, which was cancelled barely three months later.

In effect, as the Préfet's control of legality foreshadowed the cancellation by the Administrative Court of the map voted, the Territorial Council preferred to withdraw the map it had just voted rather than face the censure of the judicial power.

In spite of the Préfet's observations, the fourth project resumed almost without change the map of November 23, 2010, then was adopted by the Territorial Council on February 24, 2012 following a very short process.

Seized by the numerous oppositions this second town planning map generated, the Administrative Court cancelled it by a judgement of October 23, 2013.

Such a succession of failures, which falls within her responsibility, should have led the President of the Town Planning Commission to carefully consider the issue. However, upon reading her interview in the columns of the Saint Barth newspaper of November 1, 2013, this appears to be far from the case, and that we can continue, according to her, as though nothing was amiss, which is unfortunate.

In effect, in a highly pedagogical manner, the decision rendered by the Administrative Court highlighted the grounds for the cancellation ordered, and these grounds are important.

Firstly, because the Administrative Court sanctioned the lack of transparency surrounding the process of establishing the town planning map:
- "The graphic document made available to the public in the hall of the collectivity did not indicate the exact zoning of the land parcels, the numbers of which were not, in fact, all represented, taking into account the bold lines concealing the colour of said land parcels";
- "The legend of the colours of the residential, urban and natural zones did not correspond exactly to the colours used in the graphic documents, which allowed for ambiguity when reading the document, which, moreover, does not correspond to the new land register".
- "The provision of a graphic document which is too imprecise constitutes a procedural irregularity which substantially vitiates the appealed decision".
- "None of the opinions issued during the preparatory phase were submitted to the members of the territorial council" meaning that "the irregularity thus committed during the approval of the decision, was likely to have, in this case, an influence on the direction of the decision taken
".

The prior information, not only of the public, but of the elected members of the Territorial Council, was therefore deemed insufficient.

Then because the Administrative Court sanctioned the failure to comply with the provisions of our own Town Planning Code, which is a real blow. Therefore, in contradiction with the requirements of the town planning code, "neither the graphic document, nor the regulation of the map nor any attached document enables to determine the detailed list of the land and marine areas which are remarkable or characteristic of the island". The Court therefore concluded that "Given the protection which should be afforded to these areas and the building constraints implied by Article 18 of the Town Planning Code of Saint Barthélemy, and in the absence of circumstances justifying this omission, the disregard of the aforementioned provisions entails the illegality of the disputed town planning map".

One now wonders how the town planning commission could have decided on the different zones of its map, without taking into consideration the list of "remarkable land and marine areas" it was supposed to protect.

Still in contradiction with the Town Planning Code which defines the exhaustive list of the elements which must appear in the town planning map, the authors of the map fixed natural risk zones subject to specific constraints, appearing in red on the graphic document, which limited the rights of the owners concerned, without any explanation as to the risks incurred nor as to the intensity of these risks. As the Court raised, the collectivity which "did not present to the court any document, report or study in support of the creation of zones subject to specific constraints with respect to the prevention of risks which the town planning map establishes, does not provide any evidence of the relevance and the location of said zones".

The regulation of the town planning map voted on February 24, 2012 was also in contradiction with the Town Planning Code with respect to the documents which must be attached to a building permit application. In effect, for the Administrative Court, "the authors of the town planning map of Saint Barthélemy cannot legally insert in its regulation a provision requiring the presentation, by the applicant, of additional documents".

Finally, the Administrative Court noted that the regulation of the town planning map was in contradiction with the Town Planning Code with respect to the obligation under the town planning map to create parking areas only on the land of constructions whereas the Town Planning Code provides for the creation of parking areas "on the construction land or in its immediate environment".

The authors of the town planning map therefore led the collectivity to recurring failure as they did not ensure the transparency of the choices made or comply with the provisions of our Town Planning Code which they were supposed to reinforce with the town planning map and its regulation.

This is why, contrary to what the President of the Commission stated, it is indeed the entire process of elaboration which has to be reviewed.

The Collectivity must accept this perspective with good faith, as it is favourable towards it.

By leading it to complete the documents made available to elected members and citizens (the detailed list of land and marine areas which are remarkable or characteristic of the island and the plan for the prevention of natural risks), to assume a transparent attitude for the adoption of the new project and to ensure consistency between its Town Planning Code and its town planning map, the Administrative Court has provided it with the opportunity to finally create an efficient and respected legal arsenal.

To do so, the authors of the new town planning map must be chosen ensuring their independence vis-à-vis the interests at stake.

We must therefore begin by bringing an end to the conflict of interests, which the combination of the public and professional functions of the president of the town-planning commission characterises and which gives raise to a real malaise. In effect, one cannot represent private real estate interests while chairing the town-planning commission of the collectivity as this allows presuming, in certain cases, favouritism which could manifest itself in illegal advantage being taken of the situation.

The development of the town planning map of Saint Barthélemy is a project which concerns all of us, and to which we should offer our cooperation and support.

Saint Barth,
November 21, 2013
Emmanuel Jacques
Managing Partner
Attorney at Law

 

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