The magistrates of the TSJCV have annulled the Valencia City Council's decision to suspend the processing and granting of change of use licenses for the implementation of new tertiary hotel uses, such as tourist housing, in certain areas of the city. However, the court rejects declaring the nullity of the suspension of the processing and granting of building licenses for new tertiary hotel uses.
Thus, the court validates the moratorium approved two years ago by the Council, presided over by María José Catalá, for the construction of buildings for this purpose, but annuls the one affecting those who wished to transform a property with another tertiary use into tertiary hotel use.
The suspension of licenses was approved by the Municipal Plenary on May 28, 2024, as a precautionary measure to curb the proliferation of new hotel establishments and tourist housing while the City Council processes a definitive regulation. The moratorium is currently in force and will remain so until the approval of the new urban planning regulations that will govern these uses. The municipal government then justified the measure by the need to gain time to regulate a phenomenon that was generating a strong urban and social impact in numerous city neighborhoods.
The magistrates made this decision in a ruling notified this Thursday, partially upholding the first appeal filed against this municipal moratorium. The appeal was filed by the company De Haya y Pradas Apartamentos.
The reason for the partial nullity of the agreement issued by the Plenary of the Valencian Consistory on May 28, 2024, lies in the fact that it referred to a legal precept, article 68.1 of the Consolidated Text of the Law on Territorial Planning, Urbanism and Landscape, in force at that time, which did not allow for the adoption of such a measure.
The precept did not include in the original text, therefore, neither the suspension of the processing and granting of change of use licenses, nor the suspension of the effectiveness of responsible declarations, which were added to the aforementioned article 68.1 in the modification operated by decree-law 7/2024 (currently in force, after Law 6/2024, of December 5, of the Generalitat, on administrative simplification).
The Chamber cites jurisprudence from the Supreme Court according to which the precautionary suspension of the processing and granting of licenses agreed by the administration promoting an urban plan in order to facilitate the study or reform of urban planning, as it is a measure limiting individual rights, “must be interpreted restrictively”.
The High Valencian Court therefore considers the Plenary's agreement of May 28, 2024, to be contrary to law, insofar as it suspends the processing and granting of those licenses for change of use to other tertiary hotel uses, as well as the effectiveness of the responsible declarations that had been submitted to implement these new uses.
The magistrates reject, however —hence the partial and not total upholding of the appeal— declaring the nullity of the suspension of the processing and granting of building licenses for new tertiary hotel uses. In this case, according to the ruling, the City Council did sufficiently justify with data “the appropriateness of the precautionary measure” in order to “protect the urban environment and guarantee the right to enjoy housing, which constitute, it should be reiterated, imperative reasons of general interest for the purposes of that regulation”.
In the opinion of the Chamber, the moratorium affecting building licenses is “necessary and proportionate”, since —as argued by the Plenary's agreement— only by this means “can the consolidation of new tertiary hotel uses be prevented with guarantees of success (…) through the obtaining of new licenses contrary to the urban planning under study”.
