Girona City Council initially approves a specific modification of the General Plan to regulate and limit the implementation of tourist accommodation and home-sharing

On 14 November 2022, Girona City Council’s Plenary initially approved the proposed “Specific modification of the General Plan for the regulation of tourist accommodation”, which will be subject to public information until 19 December, during which time allegations may be submitted.

This proposed modification of the General Plan aims to regulate and limit the implementation of tourist housing and home-sharing “to avoid possible distortions in access to housing and improve citizen coexistence between regular residents and tourist users of housing, thus favouring the right to housing and preserving the quality of public space where regular residents and tourists coexist”, as justified in the report of the amendment. The proposal also regulates the establishment of youth hostels and holiday camps and collective educational residences for temporary accommodation on land zoned as development area, although without any specific details.

Girona City Council thus joins the list of municipalities that in recent years have promoted and approved modifications to general urban planning or special urban development plans to regulate and limit the establishment of temporary tourist accommodation, using their urban planning powers. It should be remembered that this type of regulation has been validated by the Supreme Court in two important rulings referring to a specific modification of the general plan (PGOU) of Bilbao that regulates the implementation of tourist accommodation and in the special urban development plan for the regulation of tourist accommodation in the city of Barcelona (rulings of 19 November 2020 -ECLI:SE:TS:2020:3842- and 2 June 2021 -ECLI:SE:TS:2021:2337-). In these rulings, the Supreme Court validates the aforementioned planning instruments from the perspective of their compatibility with European and state regulations on freedom to provide services and on the basis of the pronouncements contained in the decision of the Court of Justice of the European Union (CJEU) of 22 September 2020 (ECJ2020,224), with regard to a regulation governing tourist accommodation in the city of Paris.

The document initially approved contains a descriptive analysis of the current state of temporary accommodation in the city of Girona and, on the basis of this analysis, proposes to regulate the implementation of this accommodation in the following way:

– It modifies the regulation of the classification and definition of general uses (art. 96 of the urban development regulations), in the sense of excluding from residential use that intended for the temporary accommodation of people, which is incorporated into tertiary and service use.

The option to exclude tourist activities for temporary accommodation from residential use coincides with the regulation contained in the modification of the PGOU of Bilbao (in that case they are considered as equipment use) which was ratified by the Supreme Court in the ruling of 19 November 2020, stating that this classification is reasonable and respects the criteria of proportionality, clarity, objectivity, anticipation, transparency and accessibility, provided for in the Services Directive, also agreeing with the court of first instance, which hasd justified the exclusion of the temporary accommodation activity from residential use, stating that this use “responds to the housing needs of the population and is aimed at satisfying the right to enjoy decent and adequate housing”, which is completely alien to the residential use of tourist accommodation since they are not aimed at satisfying the right to housing, which is inherent to the stable nature that characterises the habitual residence, but at satisfying circumstantial needs for temporary accommodation for reasons of tourism or holidays“.

In any case, without prejudice to the above, the initially approved document provides (art. 102_TER) that the establishment of dwellings for tourist use (it does not refer to any other type of temporary accommodation, such as shared homes) in a pre-existing dwelling does not entail the loss of its residential use (we interpret it as referring to the recovery of the use of the dwelling in the event of the cessation of tourist activity).

It should be noted that the exclusion of dwellings for tourist use and shared dwellings in the sense proposed is contrary to the provisions of the sectoral tourism regulations, which require such tourist accommodation to constitute dwellings as a precondition.

– It introduces in Article 97 of the urban development regulations, in the regulation of tertiary and service use, the definition of the different types of temporary accommodation, which coincides with that contained in the sectoral regulations that regulate them: (1) hotel establishments, tourist flats, rural tourism houses, dwellings for tourist use and shared homes, in accordance with Decree 75/2020, of 4 August, on Tourism in Catalonia; (2) youth hostels and holiday camps in accordance with Law 38/1991, of 30 December, on facilities for activities with children and young people; and (3) collective student residences (without specific sectorial regulation).

– It incorporates a specific regulation of the use of temporary accommodation (section 3 ter) in the urban development regulations of the General Plan, excluding stable or temporary accommodation considered as health or care facilities, temporary accommodation establishments linked to social services and also rural tourism establishments (art. 101_ter).

– It limits the implantation of dwellings for tourist use and shared homes (art. 102_ter) on the basis of the following parameters:

• It divides the municipality into sectors which are delimited in the development plan O-1. However, with regard to the dwellings included within the scope of the Special Plan for the Lower Reform of the Old Quarter, it specifies that the scope of this plan constitutes a sector in itself.
• It limits the implantation of dwellings for tourist use and shared homes to a maximum of 15% of the dwellings in each sector, according to the data on existing dwellings from the Municipal Territorial Analysis Unit (UMAT), updated on the basis of the new certificates of habitability. This data will be consulted in each request for housing for tourist use or home-sharing. The document contains a list of the current tourist dwellings and shared dwellings.
  • This maximum percentage of tourist dwellings and shared households is justified in section 5 of the report. In this section it is stated that the percentage of the city’s housing stock that is intended for renting does not reach 30% of the total housing stock (according to the diagnosis of the Local Housing Pact for the period 2007-2017) and that, consequently, “it is estimated that 15% of this total would be a limit that should not be exceeded” in order to “guarantee the balance between permanent residential and temporary accommodation in the form of tourist accommodations“. The document contains no other justification.
  • On this point, it should be recalled that the justification contained in the memorandum of an urbsan plan, and particularly in the proposed modification of a plan, is decisive for considering the requirement of the statement of reasons required to control the discretionary exercise of planning powers by the administration to be satisfied, especially when the new plan introduces limitations to the freedom to provide services, as is the case with the regulation of the conditions for the implementation of temporary accommodation activities. In the aforementioned judgment of 2 June 2021, in relation to the PEU for the regulation of tourist accommodation in the city of Barcelona, the Supreme Court points out that it is not possible to expect urban development plans to contain a specific and concrete motivation for each and every one of the determinations that they contain. However, in the case of the proposed modification of the General Plan initially approved by Girona City Council, the only determination that limits the implantation of housing for tourist use and home-sharing is the establishment of the aforementioned maximum percentage of 15%, so the document should have contained a reinforced justification explaining the reason for this percentage and no other (beyond the fact that it is half of the total percentage of housing for rent in the city).
• Exceptionally, it foresees that in major rehabilitation interventions of buildings intended for housing that include the installation of lifts and other conditions that are required in accordance with accessibility and habitability regulations, the first floor may be used for tourist housing, even if the percentage of this type of accommodation in the sector (or within the scope of the Special Plan for the Internal Reform of the Old Town) is higher than 15% (first transitory provision).
  • In the report of the document, this exceptional measure is only contemplated and justified for cases of major refurbishment of entire buildings within the scope of the Special Plan for Internal Reform of the Old Town (in order to encourage the renovation of the housing stock in this area), but in the first transitional provision it is extended to all sectors of the city.
• It establishes the conditions for the location of establishments intended for temporary tourist accommodation, depending on the different zones of use regulated by the General Plan (art. 104_ter):
  • Dwellings for tourist use must be considered in the calculation of the density of the plot.
  • Dwellings for tourist use must be dwellings, have a certificate of habitability and not be occupied with more places than those indicated in the certificate.
  • Establishments for temporary accommodation must be considered in the quantification of the intensity of use of the plot.
  • Hotel establishments are allowed in whole buildings or parts of buildings, provided that they have independent access and communication core and are located below the permanent residential dwellings.
  • In temporary accommodation establishments, the location of rooms on the ground floor is not allowed, except: if they are related to upper floors and are intended exclusively for reception and common services (which seems to be a contradiction), if they are isolated buildings in the garden city sub-zone (codes 2.2 and 2.3), or if they are hostels.
  • It prohibits the establishment of temporary accommodation establishments on land intended for social housing.
• It prohibits the establishment of temporary accommodation establishments in buildings that are out of development (art. 106_ter); a limitation that should be questioned whether it is in line with the regulation of the “out of development” regime regulated in article 108, paragraphs 2 and 3, of the Revised Text of the Urban Planning Law (TRLU) and the “out of development” regime assimilated to the non-conforming volume in terms of the actions that are permitted (art. 108.4 ter TRLU) -buildings partially affected by a new road alignment subject to free cession but which are not included in any area of urban development action.
• It modifies the regulation of the zones of use of the General Plan to specify in each zone the permitted uses of temporary accommodation.

The above proposal has been initially approved after intense political debate and we will need to keep an eye out for amendments to this document during its approval procedure.

Xavier Soy Ros
Advocat
PAREJA & ASSOCIATS, ADVOCATS