Lawyers in Haapsalu as an Example: Unlawful Harassment of Owners in Building Restriction Zone?
A plot of land by the sea with a valid detailed plan is the dream of many home seekers and landowners. The existence of a detailed plan means both in common sense and in legal logic that the time for surprises is over and the right to build is secured by an administrative act.
Recent developments in the city of Haapsalu, however, show the opposite. Despite a valid detailed plan, owners may not be able to obtain a building permit. The situation that has arisen is analyzed and explained by lawyers Villy Lopman and Elvi Tuisk from the law firm RASK.
The city and the Environmental Board have different views
In the autumn of 2024, Haapsalu city adopted a new general plan, as a result of which some previously adopted detailed plans fell into a building restriction zone. This means that several detailed plans provide for construction in areas that, according to the new general plan, fall within the building restriction zone. However, detailed plans are still valid administrative acts that are binding on everyone to implement.
From the positions presented, it follows that the city did not previously see a problem in the situation that has arisen and has proceeded from detailed plans as valid administrative acts. The Environmental Board, however, does not agree with this approach and believes that if a wider building restriction zone follows from the law than the one that was in effect when the detailed plan was adopted, then it is not possible to build despite the detailed plan.
What happens next?
Ombudsman Ülle Madise recently explained that in principle, the city can consider declaring detailed plans that contradict the building restriction zone established by law to be null and void. However, this is not at all simple. Namely, if the city decides to declare previous valid detailed plans null and void, it must take into account the impact of such a decision on the owners of real estate.
Among other things, the property rights of real estate owners, their legitimate expectations regarding the detailed plan remaining in effect, and costs already incurred by them must be taken into account. However, if the city does not declare the detailed plans null and void, building permits should be issued.
Can the city refuse to issue a building permit due to a contradiction?
The applicable laws do not provide a clear answer as to which width of the building restriction zone should be used in a situation where the boundaries of the building restriction zone resulting from the law and a validly adopted detailed plan are different. However, it must be considered that a detailed plan as a legal act is binding on everyone, including the city and the Environmental Board.
It is the detailed plan that determines the requirements for the building and the conditions for the development rights of the plot. The building permit to be issued must comply primarily with the detailed plan. In this regard, a detailed plan is valid if it is adopted on the basis of the law in force at the time of its adoption – later amendments to the law do not affect the validity of the detailed plan. Therefore, it is not excluded that the refusal to grant a building permit cannot be based solely on the grounds that the building restriction zone does not match according to the law and the detailed plan.
However, the problem is that the situation that has arisen in Haapsalu and in many other local governments has not yet been clearly disputed in court. Therefore, at present, no possible solution is essentially excluded.
What if a building permit is issued anyway?
The situation is further complicated by the fact that even if the city issues a building permit without court proceedings, legal problems are not yet resolved. The Environmental Board conducts oversight over compliance with the building restriction zone. By law, the Environmental Board has the right to demand the demolition of unauthorized buildings located in the building restriction zone.
In essence, this means that if construction takes place, a court dispute may arise with the Environmental Board over the validity of the demolition order. But can a structure that corresponds to the detailed plan and is built on the basis of a building permit be unauthorized at all? The perspective of such a possible dispute depends directly on the court's assessment of the main question described earlier: whether to proceed from the width of the building restriction zone set out in the detailed plan or resulting from the law.
The courts have not yet given their assessment
In summary, the problem that has escalated in the example of Haapsalu city affects a significantly wider circle of local governments and the building restriction zone problem more broadly. As a country with a seashore and rich in inland water bodies, Estonia has far more legal issues related to periodic changes in building restriction zone regulations than can be inferred from a single general plan change.
To date, the courts have not yet given their assessment of the situation that has arisen, which means that many people live in uncertainty about whether and how they can use their property. At the same time, it cannot be overlooked that according to the laws, everyone is guaranteed the inviolability of property, the protection of trust, and the legitimate expectation that rights granted by the legal system remain stable.
