Don’t blame public law: the legal articulation of certainty in Amsterdam land use planning Federico Savini University of Amsterdam Cite this article as: Savini, F. (2016). Don’t blame public law: the legal articulation of certainty in Amsterdam landuse planning. Town Planning Review, 87(4), 459–479 Abstract (90 words) In Amsterdam, development contracts are increasingly used to provide legal certainty for stakeholders in land use planning. Under changing conditions, they are more difficult to adapt than other legal frameworks. This paper investigates the legal articulation of certainty; it scrutinizes how instruments of both public and private law are interacting with each other and how they limit adaptation in practice. Two cases from Amsterdam are presented to demonstrate that development contracts signed between governments and private sector developers are more rigid than zoning regulations in the face of changing circumstances. The paper concludes that, instead of deregulation, a careful articulation of different legal instruments can enhance adaptive capacity. Key words: Land use regulations, Development contracts, Adaptation, Amsterdam Introduction This paper looks at how legal certainty and adaptability are combined by municipalities in urban development. Regulations, and their regulating capacity, tend to be increasingly problematised as the resilience and adaptive capacity of cities become imperative in planning. Since cities are complex and unpredictable systems, planning and its legal framework are considered to have a limited, if no, capacity to control spatial change (de Roo, Silva, 2012; Batty, 2007; Portugali, 2000). Within this approach, adaptive capacity is the ability of a socio-ecological system to adjust to both external changing conditions and internal factors, without losing system stability in development and change (Folke et al, 2010: 2). Adaptation is often praised as a quality to sustain urban development in the face of volatile markets (Rauws et al, 2014). To argue so, traditional forms of publicled statutory planning, based on stringent regulatory frameworks, are often taken as negative points of reference for more innovative, non-state led approaches to land development. From a legal-political perspective, the study of adaptation asks, however, for an analysis of the implications that adaptive capacity has on the institutional frameworks put in place to mitigate and protect against undesirable outcomes of urban change (see Davoudi et al, 2012 for a debate on this issue). The legal and political concerns with land use regulations and adaptation are frequent in times of economic uncertainty (Castree, 2008). On the one hand, the advocates 1 of self-regulating markets have built on classical liberalism to promote selective deregulation. According to this view, public frameworks on land use should be relaxed because planning has a limited capacity to steer urban change vis á vis real estate markets. On the other hand, most recent neoliberal views encourage a ‘re-regulation’ of public intervention (Aalbers, 2013) in order to enable state-led promotion of new entrepreneurial urban development. This view suggests that different rules, inexpensive and more oriented to incentives and speedy procedures, are desirable. Both these discourses accentuate the preventive character of public regulations, accused to be an inhibitor for innovation. Legal reforms have embraced this view and now aim at opening up legal opportunities for communities, decentralising functions, and enabling the provision of services and planning functions (Lowndes, Pratchett, 2012). There are two main problems with these regulation discourses and the legal reforms that they stimulate. First, they tend to uniquely point to the weakness of public regulations in slowing urban investments. Land use regulations are generally described as inflexible and hard to change, in addition to the difficult public process related to legal reform. Yet, there is limited knowledge on how planning law affects project implementation or economic development (Hong Kim, 2011; Cheshire, Sheppard, 2004). Secondly, land use regulations are rarely problematised in combination with each other. Proponents of legal reform focus mostly on the problems and effects of specific legal instruments (e.g environmental zoning, or procedures for building concessions). Public law is insulated from private law despite the increased relevance that contractual agreements have in land development (van der Veen, Korthals Altes, 2009). Surprisingly, there is a lack of empirical study of the interlocked effects of different legal instruments in the land development process, which could better inform on the conditions under which certain legal instruments might, or may not, hinder adaptation. This paper scrutinizes the particular combination of different legal instruments employed in the land development process, linking the legal requirements of both public and private law. The main argument is that public regulation may not be the main impediment to adaptability in planning and that rigidity is a consequence of the way legal instruments are combined with each other. To substantiate this argument, the paper focuses on the ‘legal articulation’ of different legal instruments, and at how this is geared to provide certainty and control under conditions of uncertainty. The study looks at the public land use plan, the urban plan, the development contract, and environmental zoning. It demonstrates that development contracts signed between governments and private sector developers under the regime of private law are more rigid than zoning plans under changing circumstances. Moreover, it is shown that urban plans and environmental zoning are often used instrumentally to frame already signed contractual agreements according to the requirements of public law. In conclusion, I suggest that adaptive capacity is a matter of rearticulating different legal instruments rather than an issue requiring thorough reform of public legal frameworks. I will firstly position this empirical view on planning law(s) within the current theoretical debate on legal and institutional innovation to enhance adaptive capacity. It is here argued that the key to understanding the conflict between adaptation and legal certainty lies in the articulation and interaction of different tools rather than in the individual functioning of specific legal instruments. Secondly, I will explain why I look at four types of legal instruments. Lastly, two cases of land development within the 2 municipality of Amsterdam are presented to show different ways to articulate legal certainty under conditions of uncertainty1. Adaptability and legal certainty, from theory to practice Legal norms in urban development have the capacity to establish degrees of certainty by organising social complexity – or at least establishing the perception of such organisation. Laws provide structures of individual and collective action, indicating values and norms that guide behaviours. They are artificial and rational translations of these values within complex societies (Weber, 1954). They define what is accepted, desired, and non-accepted. Following Pirie, legalism, as a form to organise social relations, ‘establishes rules, principles, and categories, which stand apart from practice, which can be used to order the messy reality of everyday life, which symbolise equivalence and ordered hierarchy, and which create possibilities for social relationships, as well as authoritative judgements’ (Pirie, 2013: xx). Legal norms represent institutional orders of society as they are resistant factors that organise collective actions, through abstract indications to be applied in practice (Mahoney, Thelen, 2010) and through binary systems of meaning (legal-illegal) (Luhmann, 2004). In planning, as a collective form of action, legal norms provide a particular organisation of the relation between space and behaviour. They are expected to ensure that certain behaviours will be penalised, providing positive or negative incentives for certain actions, or identifying procedures to resolve conflicts when they occur. The certainty provided by legal norms is one element in governing spatial change. As Healey puts it: Planning (or `development') highlights a developmental movement from past to future. It implies that it is possible to decide between appropriate actions now in terms of their potential impact in shaping future socio-spatial relations. This future imagination […] is expected to be able to project a transgenerational temporal scale, especially in relation to infrastructure investment, environmental management and quality of life’ (2004:46). The very act of planning (which is defining a course of action) depends on the capacity to predict the effects that present actions will have in the future, and the potential conflicts that could arise. Even the most open and communicative approaches to planning are built on the expectation that a certain (inclusive) process will potentially have better effects then un-inclusive ones in addressing pressing urban problems. For this reason, planning agents (of all kinds) tend to point at the ability of norms to ensure certain planning process outputs. Legal frameworks inform planners, local communities, and market actors on whether a certain development will be allowed to occur or, eventually, if adequate compensations or penalties will be undertaken. This protective function of legal norms depends on a capacity to contemplate the effects of spatial change in the future, and it is particularly crucial when land use plans are used to promote development2. The modern infrastructure of zoning and development procedures was historically justified by the aims of framing the effects of plans on space and property, establishing compensations and mitigating damages of land use change for certain groups. The logics of predicting, mitigating, and protecting individuals from 1 All empirical data, sources and methodological information are collected in the research report published here (hidden website) 2 I herewith look at land development and do not focus on land use planning oriented to conservation of existent land usages. 3 planning have been underlying logics for planning legislative action and they have legitimated public planning up to today (McLaughlin, 2012). If planning legislation builds on defined conjectures about possible and expected future spatial dynamics, then it is at odds with any idea of cities as complex systems (Moroni, 2014). If legal norms work to ensure certainty, any attempt to include uncertainty in planning might disqualify attempts to organise and control spatial relationships. This paradox is the core of current institutional research on legal rules, which aims at detach legislation from precise conjectures on the future. In practice, however, this dilemma is addressed through legal instrumentalism and discretion (Salet, 2002; Booth, 2007). In times of changing conditions, public agents operate by combining norms in different ways, building on gaps in the legal interpretation of norms and tactically organising the way different legal tools are combined and linked in the planning process (Tewdwr-Jones, 1999). They might do so in legally accepted ways by exploiting conflicts and contradictions between different rules, by combining them in creative ways, or by working within the gaps of a legal framework. The frequent use of discretion, even when pursued by publicly elected governments, is disruptive to the ‘rule of law’ (Fuller, 1964). Practically, ‘discretionary and instrumental planning systems do make the rule of law an illusion, because it is not stable, durable and certain’ (MacGregor and Ross, 1995). Planning theory has recently tackled this problem and proposed possible solutions to enable adaptation without undermining legal certainty. General principles (or general norms) are distinguished from particular legal codes. Building on the work of Hayek, general principles are defined as those institutionalised frameworks that provide qualitative indications for collective actions. Principles are durable, resistant, and internalised by the actors in the process (van Rijswick, Salet 2012; Moroni 2007). Conversely, the specific legal codifications of these principles often make use of concrete expected outputs to enforce them. These are abstractions of those principles into detailed patterns of individual behaviour. They are codified expectations on substantiated spatial dynamics and provide prescriptive indications for (politically defined) good planning and good urban form (see for example Imrie, Street 2009). These views emphasise that when principles are codified into legal codes they become too specific and constrain action in other contexts and situations. However, despite their specificity, when they are embedded in planning and building regulatory frameworks, they are applied to a large variety of situations and under different socio-spatial or market conditions (Savini et al, 2015; Alexander et al, 2012). Some examples are prescriptions for the energy efficiency of houses (size of windows, height of ceilings), consolidated prescriptions for zoning and separation of functions within mixed areas (industrial, green, and residential), or the quantification of development standards with relation to built volumes. Municipal offices and land developers often use all avenues of legal exemption to loosen up these prescriptions if needed. To address this issue, Moroni (Moroni, 2014) calls for a radical change in thinking about planning norms, looking at the importance of ‘frameworks’ instead of ‘patterns’ for planning. Similarly, Salet and van Rijkswik (2012) claim that the legal contextualisation of general principles should itself be an object of planning. Alfasi and Portugali (2007) argue similarly that planning law should be based on substantive codes, narrowly focused on addressing conflicting issues between land uses. These works emphasise that land use regulation should address the range of illegal actions, rather than prescriptions of possible ones, so to leave open opportunities for contextual innovation. This can ensure planning’s capacity to guarantee general standards of spatial 4 quality, addressing the emerging conflicts between land usages without frustrating flexible adaptation to context. These theoretical proposals underline the valorisation of shared principles of planning rather than legal prescriptions. Nonetheless, my argument is that, in practice, general principles are permanently bounded to the continuous, politically specific, and power-based process of particularisation. While practitioners, local governments, local communities, and even land developers tend to agree in principle on the advantages of avoiding prescriptive norms, in practice they tend to insist on particular and specific rules. In prescribing certain behaviours by means of specific legal requirements, each actor with a stake on land use change expects to better predict (the possibility of) conflicts and risk in land development. This also allows governments and land developers to manage and calculate risk in real estate projects (Savini et al, 2014). For this reason, any claim by actors to establish general principles and to avoid the specificity of legal requirements is permanently counterbalanced by the claim of other actors to further particularise requirements. This is especially the case in situations where actors have a lower tolerance of risk because of, for example, financial commitments or environmental concerns. This translation process is shared by public, civic, and market actors, especially under conditions of (perceived) uncertainty. Each stakeholder has their own interests in a specific particularised norm (being the max volumes allowed or the way the energy supply grid is used, for example). In practice, the process of particularisation is the actual object of the land use planning process, where normative claims are confronted and negotiated. Studies have not yet researched this process in order to understand how actors compromise to provide selective certainty and enable certain degrees of flexibility. A focus on agency in legal instrumentalism might therefore be suitable to grasp how and why actors demand legal certainty in the process instead of seeking adaptive capacity. I later show how legal articulation is in fact a process of establishing boundaries of certainty which limit adaptation in the long run. Articulation of legal layers in land development: zoning, plans, contracts, and environmental procedures Linear views on land use planning tend to identify a development process that starts with the understanding of a problem, moves to the activation of a land use change process in a certain area, establishes a land use plan, and ends with the issuing of building rights (Gore and Nicholson, 1991). Complex urban projects, especially when long term, located within already built areas, and with multiple ownerships, rarely follow this path. In this view, land development is a rather ‘disorganised’ path, characterised by unpredictable changes in the intentions of stakeholders and exogenous factors (Graham, Healey, 1999). Within the development path, each decision provides a degree of outcome prediction to the involved stakeholders, and such decisions can be enforced through the use of particular legal tools, which provide boundaries for subsequent options. The process is thus constituted as a legal layering of these different boundaries (even in conflict with each other), each of which has its own degree of spatial detail and scale of application, setting other limits towards other legal decisions. When adaptive, planning is able to cope with these layered elements of certainty provided by each different step in the process, especially when outside conditions demand responsive change. Yet, the act of particularising the future outcome of a project through 5 different layers of legally binding agreements is always functional to the development process. I call this the legal articulation of certainty, that establishes a degree of order to complex processes, which enables individual action. Within a complexity perspective, it is hard to establish one unique model of this articulation. It is instead useful to focus on particular legal instruments and look at how they are interlocked in different situations, so to grasp inductively the factors that limit adaptive capacity. I focus on four main types of instruments3: the zoning plan, the urban development plan, the developmental contract, and environmental zoning (through environmental strategic assessment). These legal tools are all together regulative components of the planning process and the specific function of these tools is fulfilled in all modern systems of land use planning, despite they might have different forms, names and requirements (Hopkins, 2001). The zoning plan is the most legally binding framework for any development project. It collects the set of public requirements on what is possible in each plot of land, and on the procedures for use change. It provides spatialised legal boundaries, and must comply with higher levels of government. The zoning plan regulates all kinds of spatialized requirements regarding externalities, adequate public facilities or development rights. It can contain one or more of these indications, each of which might be specified in different plans (see Hopkins, 2001). It can be also coupled with other tools, such as land classification plans, geological maps or verbal policy plans (Kaiser and Godschalk, 1995). The zoning plan is usually a part of a land use plan and in The Netherlands can be rather comprehensive: it can contain precise indication of the densities, typologies and built structures allowed in a determined area, including indications of conflict between incoming and existent uses. The urban development plan is also used to give physical and functional detail to land use development and zoning plans. It expresses a non-legally binding agreement between the government entitled to issue building rights and a development corporation entitled to build real estate. However, it assumes both legal and political value at the moment in which it is recognized within the land use plan, in association with the zoning plan, and when it is referred to within a development contract. It also involves ‘reputational cost’ in case of non-compliance (Millard-Ball, 2012), especially when they regard large and sensitive areas of the city. These plans can be drafted by either public or private actors depending on the political/planning tradition of each city. In property-led planning systems, they are mostly proposed by developers and are tested against the zoning plan before issuing building rights. In Amsterdam instead it is generally produced by the city. Urban development plans contain a series of indications over spatial form, building design, building ratio, green space, and related infrastructural investments, which indicate the output of the project (Imrie, Street, 2009). The plan is often the result of some sort of negotiations between public and private stakeholders when formal land use plan are not highly detailed. The development contract provides further certainty in stakeholder behaviour under the regime of private law. As such it provides a voluntaristic and ad-hoc mean to enforce compliance between public and private actors, as both operate as legally responsible subjects in the process (van der Veen, Korthals Altes, 2011). It contains the set of 3 These tools can be named differently in different countries. For example, the land use plan in The Netherlands is equivalent to the Local Zoning Plan in the UK but it contains zoning plans. The piani particolareggiati in Italy or the Plan d’Aménagément de Zone in France are also examples of precise zoning plans complementary to land use plans. The UK Urban Development Plan is called the Stedenbouwkundige plan (Urban Plan) in The Netherlands or Piano Planvolumetrico in Italy. 6 incentives, disincentives, and penalties in case of non-compliance. A contract identifies a future transaction, which is ‘the promise of action of economic or other value by one party in exchange for payment, goods or services, or for the promise of other party of reciprocal action of economic or other value to the first’ (Dixit, 1996:48). In times of de-regulation, contracts are increasingly used to establish patterns of action in land markets and to generate compliance to rules through individual deals between parties (Adams, Tiesdell, 2010). Some contracts are only used to establish an agreement over a process, and to clarify the decisions that will be taken by the signing parties (van der Veen, Korthals Altes, 2009). In any case, contracts are used to organize and subdivide financial risk between the signing parties. Lastly, environmental zoning procedures are binding regulative frameworks for urban land use plans. In Europe they frequently refer to national and international regulations. For this reason they are also hard to discretionary modify or bypass. Since the 1990s, rising international concerns on the environmental impact of development have produced legally binding procedures geared to ensure that land development is combined with environmental protection rules (de Roo, 1993). These procedures also provide citizens with substantial means to appeal against plans. They list substantive criteria that have to be addressed by the land use plan to be formally approved, and operate through multiple tools tailored to assess environmental impact (i.e. environmental impact assessment, environmental cost-benefit analysis) (Short, Baker et al, 2013). Table 1: Summary of legal instruments analysed and their challenges for adaptation Legal Tool Zoning Plan Urban Development Plan Major regulatory value of the tool Defines minimum public requirements for land use change. It is universalistic. Political agreement on the overall goals, objectives, and character of the project. Development Contract Organises economic-institutional resources for land use change. Environmental Zoning Provides the public framework for environmental protection and security. Challenges for adaptability Long times to adapt and change. Encompassing documents with interlocked regulatory uses. Substantiate intentions and express long negotiations between powerful actors. Requires discussions of the project goals. Provides certainty of profit and revenue, and organises risk. Cannot be changed without agreement of both parties. Demands precise output projections and is hierarchically enforced. The layering of these tools provides a complex structure of legal boundaries to individual actions, and structures a non-linear development process. The way these multiple requirements link to (and enforce) each other affects the capacity of a planning process to adapt in time (see tab.1). Their articulation is a way to distribute and shift risk and rights across involved parties (Hopkins, 2001). Therefore, this articulation entails a negotiation between public and private parties, each of which aims at reducing their own risk by claiming for specific compliance from the other. As example, contracts are used as tools to distribute resources for realisation of outputs. Yet, in practice they may be signed before, or conditional to, the other decisions, to give high levels of security in conditions of high uncertainty. As I will show below, land use zoning and environmental zoning, which provide public frameworks of land change might serve already established agreements under private law, or sustain decisions on land usages already fixed in the urban 7 development plan. In Amsterdam practice for example, the municipality often attempts to increase flexibility by reducing zoning details in land use plans. To compensate for this, it can use other forms of legal tools to penalize or incentivize certain behaviours amongst developers, such as the use of specific development contracts. In other cases, very open contracts, with fewer compliance penalties might be combined with more detailed urban plans and zoning plans, and supported by very precise environmental impact assessment plans. In sum, legal certainty can be articulated in different ways, and each legal tool supports the demand of certainty by stakeholders, be they investors, inhabitants, or municipalities. Such complex articulation is rarely mapped or investigated in practice in order to discover which one of these articulations offers more opportunity for adaptation. Articulating legal instruments in two projects in Amsterdam In The Netherlands land use planning has been historically built on a proactive role of municipalities, through an approach oriented to regulating, ordering and establishing standards of spatial quality (Nadin, 1995; 2010 Wet Ruimtelijke Ordening). In Amsterdam, where the city owns 95% of land, a long tradition of active land use policy made of publicled planning and public land ownership make the articulation of public and private law particularly crucial. Here, both public and private risks of development are clearly balanced: the municipality must account for initial infrastructural investments as well as long term returns on developed land; private developers instead needs to comply with precise regulations and land prices which are defined by the public authorities. In Amsterdam politicians and planners are aware of the fact that adaptations to land use plans are de facto achieved through long and highly costly procedures for land use change and plan amendments. In practice land use plans are used in a developmental manner to allow for new usages and to increase value of land. Urban development plans are almost in all cases designed under the guidance of the public authorities and contracts refer to them as frames for the particular agreements. Development contracts are enforced by means of private law and explicitly refer to the established land use plan and urban plan. To enable adaptation, the municipality frequently amends zoning plans, either by submitting more detailed site-specific plans, or through small variations within the approved plan, or even by approving a totally new plan (Buitelaar, Galle et al, 2011). This has raised concerns over the legal viability of projects and also increased the number of court appeals. Moreover, the long tradition of environmental zoning in the country is built on hierarchical and precise regulatory frameworks for environmental protection regarding noise, external safety, and air and light pollution, which are recursively used to appeal against specific land use plans. This system is today accused of being unresponsive to market innovation because it involves a large role for municipal regulations and already requires a high degree of output certainty at early stages. Current reform is thus geared to set up a new system where citizens’ and new private actors’ proposals are included much earlier during the process. These reforms claim for a less stringent public regulatory framework, and often build up on several successful pilot experiments in the country4. Among others, we report: the 4 Some of these experiments are used as prototypes for planning reform and frequently mentioned as possible solutions, despite they are often de-contextualized from specific considerations on legal, economic and political complexity. Frequently mentioned pilots are Buiksloterham in Amsterdam and Oosterworld in Almere, where 8 increased autonomy of local municipalities in defining and changing land use plans (Spatial Planning Act, 2010); the reform of procedures to allow temporary variations from existent land use plans and introducing faster zoning variation5; the standardisation and limitation of appeal procedures for projects6; and the promotion of market compensation through contracts based on allowed amounts of built volumes (van der Veen et al., 2010). These reforms all seek to relax procedures for individual initiatives and to enable faster realisation of projects. Today, Amsterdam increasingly relies on initiatives of housing development by issuing public land plots to individual developers and householders (with around 25% of total built houses in 2014 being self-built) and experimenting with new mixes of livingworking environments. These approaches do problematise existing regulations, which tend to define, separate, and classify function. Amsterdam seems to address the challenge of adaptation in land use planning through de-regulation and re-regulation, attempting to streamline procedures, facilitate adaptations to established decisions, and promote a mediating role (instead of a directive role) for municipal agencies. In practice, as I show below in two cases, the raising urgency of adapting existing projects is counterbalanced by demands for certainty and prescriptive rules. Private developers, public authorities, and local communities seem to demand more precise legal boundaries in conditions of market uncertainty. IJburg: encompassing contracts and detailed regulation The legal articulation in the development of IJburg shows how comprehensive and detailed contracts linked to an over-detailed urban plan have reduced financial and environmental risk for involved stakeholders but have also limited adaptation in the long run. IJburg is planned as an archipelago of islands hosting approximately 45.000 people to the east of central Amsterdam. The whole area is divided into part I and part 2. Only the first part of the project has been completed (IJburg 1) and hosts 20.000 people. The land use planning for the second part of the area is just started and the first piece of land, Centrumeiland, is ready since 2009. IJburg 1 follows a grid-urban structure, subdivided into blocks where different types of housing units have been combined. In this project, the challenge of enhancing adaptive capacity while maintaining certainty lies in the following: a) adapting the living-work programming for the unbuilt blocks in response to the market downturn, and coping with the investment risk of the new island; b) increasing the feeling of urbanity by enabling self-organised cultural, recreational, and service activities, especially in the already-built space; c) managing the development of IJburg 2 through a more incremental, small-scale approach, promoting self-built dwellings and more temporary usages without however loosing grip on housing production and densities as specified in the already approved land use plan. energy issues are particularly relevant, the Ebbingekwartier in Groningen of post-industrial development, and the Tempelhof in Berlin. (see for a list ‘Bergevoet and van Tuijl, 2014, de flexible stad, Nai Publisher) 5 The art. 2.12, lid 1 onder a, sub 1 of the Wabo includes the possibility to change a specific details of the zoning plan without changing the plan and without a procedure of public audit, provided agreement by the municipal executive (alderman and mayor). 6 The art. 1.9 of the Crisis en Herstelwet allows an appeal against a land use decision only to those who are factually affected by the decision and denies appeal for procedural reasons. 9 In IJburg, all involved actors share the urgency to change the current development strategy: developers call for less detailed building requirements, citizens desire more options to reuse vacant spaces, and the municipality wants to improve the space to attract dwellers and industry. Because of its large scale and its financial complexity, the regulatory requirements of specific areas have been highly particularised and standardised even though the initial principles of planning where enough general to provide room for contextual action. The initial design principle of ‘ordered diversity’ (Claus et al, 2001) instead translated into particularly designed building requirements; every element of the island, from its grid structure, the design of the blocks, the progressive increase of the land prices, and the quality of the natural environment, was specifically determined at initial stages and enforced through specific legal instruments. Surprisingly, despite this detail the land use plan provides only a general framework. The development plan instead is very precise and used to establish a ‘hierarchy of contracts’7 where specific outputs are negotiated. This articulation enables high degree of certainty, both in space (applied to the total projects of IJburg1) and in time, for the total length of the project (approximately 10 years for the first part). Building rights are subsequently issued according to operational zoning plans for each sector (uitwerkingen). These plans are approved for each specific phase of the project as already specified in the urban development plan and contractualised in the development contract. After the approval of the first general land use plan in 1996, the city has engaged in close negotiations with three development consortia (Groep Waterstad, IJ-delta, IJburger Maatschappij). These negotiations were particularly geared to establish the market feasibility of the project. Because of its size and investment risk, the contract needed to be supported by a detailed development plan. At the end of the 90s, the city needed a particular perspective of return on its public investments while the developers needed to calculate long-term risk and revenue in order to commit. A detailed feasibility study was also a condition to attract national subsidies (VINEX). Between 1996 and 2002, the city engaged in seven different contractual agreements with the developers. These agreements precisely defined the total amount of houses to be produced each year, the phasing within the program, the expected increase of the land value, and the specific mix of housing typology for the whole project. Each contract intended to further particularise the earlier ones, starting from an initial intentional agreement (intentieovereenkomst, 1996) followed by a development contract. The latter contained all the economic details of the program, relevant for the first half of IJburg 1 (a total of approx. 7500 houses), including the land lease to be paid to the city. This hierarchy of contracts has been used as a backbone of the whole land development process, and was built on a publicly designed urban development plan. The urban development plan for the first half of the project (Stedenbouwkundig Plan Haveneilanden en Rieteiland West, 2000) contained all the spatial, design, and functional details of the island. The plan is not legally binding, but it was an annex to both the development contracts signed between 1998 and 2002. Moreover, the plan set the base for the subsequent specific zoning plans. It specifies the exact block structure, the size of the plots, the building requirements for the dwellings, the ratio of social, middle, and high end houses per block, the relation between the street and the buildings and the precise location of public spaces. 7 Interview with project management at Amsterdam Land Development Agency, November 2014 10 This degree of detail is instrumental to both market and political interests. On the one hand, the contract has committed markets and public offices to a large and long project and ensured the economic feasibility of the development. On the other, the definition of the exact output of the project, and thus its environmental impact, helped the city to gain public consensus. IJburg was initially contested, with environmental groups arguing it to be unnecessary for housing provision. A referendum was eventually held in 1994 and was won by the project advocates. Yet, the city was pushed to provide a clear and precise explanation of the expected output and a justification of the needed houses in the long run (Waterhout et al, 2013). Particular zoning plans and expected long-term outputs are also functional to reduce the risk of environmental impact, and to protect the project from incoming appeals. The first zoning plan for IJburg 2 was published in 2003. It was similar to that of IJburg 1, being very general and open to progressive particularisations. Yet, it was rejected consequently by an appeal executed by a local environmental NGO in 2003 (Stichting Centrale Dorpenraad Landelijk Noord). The appellants claimed that a general land use plan could not adequately comply with the requirements of different environmental protection norms (Natura2000 and the European framework for birds protection) because it did not sufficiently specify the location of houses, the use of the waterfront, or the borders of the islands within its environmental assessment plan (Raad van State, Uitspraak 200304566/1). A second plan was approved after six years and included a more detailed programming of the real estate and an estimate of the compensations against environmental effects. More recent attempts to relax the structural requirements included in the development and zoning plans have been undertaken to promote less dense housing and to enable the reuse of vacant lots. However, despite the wide debate on these reforms, attempts to de-regulate have encountered resistance from stakeholders. In particular, established agreements over typology, rate, and costs of houses have made it impossible to change output expectations without violating binding contracts. Adaptation is thus pursued case by case by creating new rules and adding ad-hoc legal exemptions to guarantee the overall expected delivery standards. The current land use plan includes a large section of ‘specific situations’ that are eligible for adaptation for commercial and residential spaces (Bestemmingsplan IJburg eerste fase, 2013:78). More innovative attempts to rearticulate these different legal layers have been undertaken in the current development of IJburg 2, Centrumeiland. Here the municipality is opting for an articulation of legal requirements on a very small scale, with a general land use plan and specific development plans for each sub sector. Different from past experience, the municipality builds on the public framework of a land use plan, which specifies the general density and number of houses. Development agreements are thus established case by case on each of these micro-sectors. This requires larger public involvement and management by public agencies, with more specific and less encompassing contracts between public and private actors. In conclusion, the past development of IJburg shows that while it reduced investment risk and increased certainty of delivery, the large and encompassing public-private development agreement increased rigidity over the long term. The case of Overamstel shows an alternative model, pinned over smaller scale land use planning and development contracts. Overamstel: project-based coupling of legal instruments 11 The development of Overamstel shows that regulation approach that aims at subdividing risk into particular small-scale contracts has made adaptations to new circumstances highly costly and conflictual. The area is a brownfield redevelopment project that covers 92 hectares of former industrial land within the city of Amsterdam. The zone is well served by infrastructure, is characterised by a fragmented land ownership, and has active industry. In the mid-2000s, the city activated a redevelopment process with the intention of building housing and densifying commercial, recreational, and office facilities (Kiezen voor Stedelijkheid, Gemeente Amsterdam, 2003). With the Overamstel Vision approved in 2005 (DRO, 2005) the municipality defined the main goals of transformation and principles of land use change: the need to manage the transition from industrial to urban mixed area, address the (legal) conflicts between industrial and residential land usages, and allow for innovative combinations of usages. The project shows an articulation of zoning, contracts, and environmental rules that differ from IJburg. However, the development contract is still at the centre of the process and, as in IJburg, it binds adaptive capacity. The city is more concerned with organising the project through careful public management and governing the different land ownership patterns. To do so it has adopted a piecemeal approach, subdividing the land into small sub-units. This regulatory choice was driven by the aim to smooth the transition from industrial to residential usages incrementally, and to reduce the risk of legal appeals that might have occurred8. Moreover, the project calls for different sorts of housing, from the more traditional block to the new idea of self-built housing, in order to increase responsiveness to diversified markets. Because of these ambitions of delivering a wide diversity of housing typologies and of keeping the program sensitive to market fluctuations, the municipality has chosen an approach that is centred on a developmental use of the zoning plan, coupled with highly detailed, small scale, and strongly binding development contracts. In Overamstel there are eight different land use plans, each covering a small section and layered over the existing land ownership structure. The subsectors are subdivided into numbered blocs. Furthermore, between 2009 and 2014 up to 22 particular revisions of these plans have been made by the city. This series of zoning plans is tailored to a particular model of contracting development. The building concessions are issued through a so-called building block envelop (Bouwenvelop, BO). This was introduced in 2005 by the city of Amsterdam as a tool that would allow for a ‘great simplification’ (van der Veen, Spaans et al, 2010; van Heel, 2005). The BO is a public-private agreement over a plot for which the concession to build is granted, and it is based on a publicly defined urban development plan (which covers the perimeter of the zoning plan). It includes a specification of the zoning plan and defines the pace of realisation. It also binds the parties to a precise delivery time and a monetary fine for delay. It can be signed between the city and a company or (a group of) individual developers that win a tender, specifying all the details of the realisation. The contract over a building envelope (Bouwenveloppeovereenkomst) contains all rules that will apply to the specific building authorisations, including the expected organisation of functions within the max floor-ratio and volume allowed. Moreover, the BO contract also contains the commitment of the city. In the case of Overamstel, the contract for the first lots (Amstelkwartier Binnendijks) included the expected ‘approval’ of a zoning plan by the city. In other words, the approval 8 The first appeal was already filed in 2005 by an existing industrial company with plans of enlargement 12 of a zoning plan is part of the agreement to build, and it represents the public commitment within the signed development contract. This parallel articulation of zoning plans and development contracts is oriented to define the precise output for both the municipality and developer, yet at a small scale. In doing so, the developer is (formally) certain that the city will approve a zoning plan against eventual appeals. Conversely, the municipality is reassured that the approved zoning plan is backed up by a financially committed developer that has already agreed on the required program. Moreover, by organising a tender procedure, the BO allows for a possible increase of land prices. In Overamstel, the BO ensured a more efficient and remunerative negotiation between the municipality and private corporations on land prices. On the other hand, because of the tender, the BO closes any option for further negotiations, which would require longer procedures of normative exemption. Within this practice, environmental zoning is a loose framework for these series of contracts and zoning plans. It has been instrumentally used to adjust the different environmental limits in the area in order to approve developmental plans. In Overamstel the most pressing issues are noise and external safety from industrial activities, and the noise from the railway and highways. According to national rules, the city shall perform a strategic environmental assessment report containing different development scenarios (Plan MER9). The city has selectively conducted this assessment within the specific sub-sectors of intended transformation, and left out others selectively (Overamstel Visie, 2005). In practice, the environmental assessment has allowed to establish minimum environmental standards for the zoning plans and to redefine environmental zoning in certain critical spots. For example, in November 2009 the city reduced noise borders around the railway to allow more density along the tracks (October 2013, decision Number Bd2013-008516). The discretionary articulation of environmental zoning, substantiated by small-scale zoning and coupled with contracting, was at the base of a piecemeal approach that was considered to be more responsive and adaptive to markets. Instead, it created an interlocked system of particular legal constraints that became markedly unadaptable, linking different contracts to zoning plans and the different zoning plans to each other. In Overamstel, disputes were heard in court eight times between 2006 and 2014, and they stimulated many revisions of the zoning plans (a total of 22). The first BOs were issued between 2007-2009 following a designed development plan. The result of the first tenders (just before the housing bubble) was high land price offers from the contenders (up to 150% of expected prices from the city). However, the real estate crisis of 2008 has compromised the financial reach of these corporations. These parties requested a re-negotiation of conditions for delay and a reprogramming of the project to reduce costs. In 2010 the city appealed to the court in order to ensure that the contract would be respected and won the lawsuit. Yet, the city also engaged in a series of small agreements to revise structural details regarding parking lot ratio, house size, and student housing amounts. Again, as in IJburg, this procedure was long, costly, and led to further discretional exemptions within the existing zoning plans. Another problem related to this particular micro-scale system of zoning and contracting is the integral management of the project area. Since contracts, zoning plans, and development plans are interlocked with each in the specific sub-sector, any change in a 9 In the Netherlands this Environmental Assessment Report is governed by the Wet Milieubeheer (1979), and has been adapted in response to the European guidelines for environmental assessment. The Report must comply with a specific procedure, including different sub-assessment, and must include independent assessment agencies. As such it is a long procedure, which must be revised in case of radical changes of the land use plan. 13 sector is likely to affect the overall integrity of the redevelopment. Such a problem occurred during the realisation of two different building envelops, the blocks 3b and 3c in Amstelkwartier Binnendijks. Within the two contracts, the city of Amsterdam had explicitly requested coordination between the two developers to address parking space supply. The two developers lamented that the realisation of underground parking lots would increase costs for the other developer. The developers demanded more particular and precise structural indications of how to solve this issue, and a more clear division of responsibilities on the parking. Because of their two existing contracts, coordination was impossible and again required the intervention of the court to specify these responsibilities10. In sum, the case of Overamstel shows that the legal articulation of small scale land use plans with several development contracts, and with specific delivery indications also had important limits with respect to adaptation. On the one hand, it might have enhanced the capacity for the municipality to deliver diversified types of real-estate. On the other, it required long judiciary procedures in order to adapt the development contracts signed. Reflections and conclusive remarks: risk and agency This paper scrutinised the articulation of legal certainty in land use planning and its effects on adaptive capacity in practice. Current debates on de-regulation and re-regulation strongly focus on the limits of public regulations in enabling flexible and resilient land development. Theoretical reflections instead argue in favour of radically new legal approaches to land use planning, more oriented to general normative principles that could allow for case-based solutions. At this point, a careful exploration of the interlocked challenges of multiple legal instruments seems to be missing in literature on planning regulations. This paper scrutinized the articulation of legal instruments in practice to understand why and how different stakeholders discretionally create a layered system of legal certainty which binds adaptation. In spite of the wide-spreading quest for adaptable and less particular rules to enable contextual innovation, land use planning practice is increasingly producing systems of particularised norms that ultimately limit long term adaptation. Under conditions of uncertainty, stakeholders seem to invoke more precise legal boundaries. This paper scrutinized how these boundaries are legally articulated. Various pieces of evidence from the two cases of land re-development in Amsterdam, IJburg and Overamstel seem to contradict the assumptions behind mainstream policy reforms on de-regulation and re-regulation. They show how contracts signed under private law are pivotal legally binding agreements which affect adaptation in the long run. The two projects follow similar patterns and logics. They both prioritise the reduction of financial and economic risk in the projects rather than their future capacity to address changes in market demand. IJburg shows an encompassing legal framework based on large contracts to reduce financial, political, and environmental risk. Overamstel has favoured a more project based legal approach, focusing on specific contracts and detailed land use plans on a small scale to provide certainty. The two cases studies provide important findings on the functioning of different legal instruments under conditions of uncertainty. First, the zoning plan does not seem to provide the ‘rules of the game’ as we might expect from a classic understanding of this 10 The case is presented in detail here: Rechtbank Amsterdam procedure 497463 / KG ZA 11-1287 14 tool. In the practices here analysed, when it is first approved, it is rather general and open to further negotiations over programming. The zoning plan is instead subsumed to private agreements between city and developers over the economic feasibility of the projects. In both cases, the zoning plan was part of an agreement – an annex to it – and was subsequently specified in order to recognise public-private zoning negotiations. Secondly, the two cases suggest that development contracts based on non-legally binding development plans are the most solid elements of a project, and when confronted with the need for adaptation, require further legal specificities. Later attempts to reprogram the projects have led to controversies, which ended in court in Overamstel and required a further legal specification of exemptions in IJburg. Contracts are always case-specific but do not seem more adaptable to changing circumstances. especially when bonded to zoning plans. Third, environmental assessment procedures are often perceived as highly standardised, or as a procedural burden in the process. This might be due to their particular instrumental use, as the cases show. The environmental assessment was conducted before other actions in the project, in order to allow for later zoning and contractual procedures. This demonstrates that the protective function of these zoning procedures is likely to be loosened in the course of the project, with repeated modifications of land use plans on the base of established contracts. Despite the limit of any single case study to represent others, the empirical analysis carried out here shows that legal certainty is functionally organised according to the perceived risk of the actors involved in the specific land development. It is done so by articulating different legal tools in particular ways, each of which puts specific frames on the complexity of the land development process. Focusing on legal articulation enables the issue of adaptation to be addressed through a careful analysis of agency in the use of legal instruments. This paper evidences that a re-articulation of legal instruments can be a viable way to enhance adaptive capacity, instead of a straightforward deregulation of public planning regulations. The latter still seems today to be the strategy preferred by governments and corporations. In conclusion, theoretical reflections on planning regulations and agency need to include a stronger critique on the notion of risk and certainty, appreciating their multiple understandings by different involved actors. Legal articulation is in fact a way to organize risk and distribute it across involved actors. This is particularly evident in Amsterdam, where land is publicly owned and the municipality actively organizes its resources and claims on development. Here public authorities actively undertake investment risk and organizes it by means of agreements with developers under private law. In other contexts, where land is privately owned, private actors needs to account investment risk, and are likely to do so by establishing output-based norms under uncertain conditions. In those cases, legal articulation is geared to establish private investment’s certainty of real-estate realization. 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