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It often happens that a municipality decides to designate a house or building as a monument, while the owner is absolutely against it. Many owners feel that such a designation infringes on the core of their ownership. "It's my house, isn't it? How can the municipality just decide that my house becomes a monument, with all the associated restrictions?" This is a frustrating realization, and not everyone is willing to accept such a decision.
But usually, it is not so easy to do something about it. This is because, according to established case law, a municipality has a lot of discretion and policy space when it comes to deciding whether or not to designate a property as a monument. What is this discretion and policy space?
Discretion comes into play when determining the monumental value of a property. The monumental value is a sum of the cultural-historical, architectural-historical, and architectural value and rarity of the property. The assessment is usually carried out by one or more experts, and the owner must have a strong case—and solid counter-expertise—to successfully challenge it. It doesn't help that in all the elements that can determine monumental value, there is always something essential in the given case, and it is often a matter of the taste of the moment. And as is well known, taste is usually difficult to argue about.
When an object is indeed found to be of monumental value, the municipality then weighs the importance of preserving the monumental value against the other interests at stake, primarily the interests of the owner. The municipality has a lot of policy space in this regard. The administrative judge does not assess whether they would have come to the same decision in the specific case, but very distantly only whether the administrative body could reasonably have come to the decision. It is mainly about whether the adverse consequences of the designation are not disproportionate in relation to the goals to be served by the designation.
A recent example of how monumental value is substantiated is the designation of a building from 1914 in the center of the municipality of Heerlen, where an Etos store is located. According to the valuation, the building was important due to its beauty, significance for science, cultural-historical value, and more specifically because:
A mix of arguments against which, given the municipality's discretion, any attempt to prevent designation is doomed to fail. The Limburg District Court also rejected the owner's appeal, see its ruling of December 12, 2024.
Even when it comes to balancing interests, the owner must have a strong case and act in a timely manner. According to established case law, the owner of the monument must concretely state and sufficiently motivate that the monument status has negative consequences for them. It is therefore not enough to rely on the municipality's own duty to investigate. This duty is rather modest. This means that the owner must bring forward that a designation of their property as a monument is disadvantageous—and disproportionately disadvantageous—for them and must substantiate this with hard figures. A certain depreciation of the property must even be accepted. The general interest sometimes requires an individual sacrifice. Similarly, the judge finds that the owner must accept certain restrictions: the possibilities for modifying the property are indeed limited by a designation as a monument, but not made impossible, as a monument permit can be applied for. Whether such an application has a chance of success is another question.
It is not that municipalities never see or do not want to see the disadvantages for monument owners. But they find themselves in a difficult tension: on the one hand, those owners, and on the other hand, often the heritage associations that aim to secure heritage for the future and regularly request the municipality to elevate certain objects to monument status. A recent example can be found in a ruling of December 23, 2024, in a case between the municipality of Leudal and the Bond Heemschut. The municipality had established a policy that post-war (WWII) buildings are not eligible to be designated as municipal monuments. Bond Heemschut disagreed and wanted a technical school from the reconstruction period, built in 1958, to be designated as a monument. The judge agreed with Bond Heemschut: categorically excluding post-war buildings was apparently unreasonable policy, especially since there was already a report that the school building had protectable cultural-historical significance. So the municipality must, although it did not want to.
All this under the motto: no matter how you do it, you never do it right.
For questions about monument law, contact Arjen van Rijn, Attorney at Law spezialed in Monument Law.
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