The owner of a building within a ZAC (zone d’aménagement concerté, a public development zone) may serve formal notice on the municipality to buy it: this is the right to require purchase (droit de délaissement). What becomes of the claim if the municipality then redraws the zone and leaves the property out, without first amending the PLU (plan local d’urbanisme, the local planning plan)? In a reported decision of 21 December 2017, the Third Civil Chamber of the Cour de cassation (the French supreme court for civil and commercial matters) upheld the rejection of the claim: amending the ZAC did not require a prior amendment of the PLU, and the publication formalities had been completed before the first-instance judgment. For the valuer, the perimeter is checked before any question of price.
The facts
By a resolution of its municipal council of 7 July 2009, a municipality approved the creation of a ZAC. The perimeter of the zone was then delimited in the PLU by a resolution of 14 February 2013.
On 23 April 2013, a company owning a building within the ZAC exercised its right to require purchase: it served formal notice on the municipality to buy its property. The municipality did not respond within the one-year period laid down by article L. 230-3 of the Planning Code (code de l’urbanisme). By a resolution of 14 November 2013, it amended the perimeter of the ZAC and excluded the company’s building from it.
The company applied to the expropriation judge (juge de l’expropriation) for an order transferring ownership and setting the price. In a judgment of 13 September 2016, the Versailles Court of Appeal rejected its claims. The Cour de cassation’s decision mentions neither the value of the building nor the price claimed.
The company appealed. In its view, once a ZAC is located in the PLU, an amendment of its perimeter takes effect only after that plan has been amended. It also argued that a municipality wishing to defeat the claim must establish the exclusion of the property no later than the close of the hearing before the expropriation judge.
The decision
The Cour de cassation dismissed the appeal (Cass. 3e civ., 21 December 2017, appeal no. 16-26.564, reported decision).
It relied on what the Court of Appeal had found: the municipality having amended the boundary of the ZAC, the building was no longer within its perimeter, and the publication formalities had been completed before the date of the first-instance judgment. It then approved the appeal judges for having “correctly held that, like its creation, the amendment of the ZAC did not require a prior amendment of the PLU and that proof of the publication formalities could be produced on appeal” (translated from the French, as are the quotations below). It concluded that the Court of Appeal “rightly deduced from this” that the company’s claim to require the purchase of its building “had to be rejected”.
The limit the appeal set at the close of the hearing before the expropriation judge is therefore not accepted. The Légifrance summary links the solution in particular to articles L. 123-3 and L. 230-1 of the Planning Code, in their wording prior to the order (ordonnance) of 23 September 2015, and to articles L. 311-2, R. 311-5 and R. 311-12 of the same code.
The decision has its limits. Publication had taken place before the first-instance judgment: the Court does not say what would follow from an exclusion published later. Nor does it rule on the value of the building or on any compensation for the owner, which were not before it.
What this changes for valuation
The perimeter is checked before the price. The municipality may take the property out of the zone by a resolution amending the ZAC, without first amending the PLU: a zoning map that still shows the property inside the ZAC therefore does not prove that the right to require purchase survives. Before quantifying anything, the valuer gathers the resolution creating the zone, the one that delimited it in the PLU, any amending resolutions and the proof of their publication; the report cites these documents and dates the state of the perimeter relied on. As that proof may still be produced on appeal, a supplementary note reports any resolution adopted after the report.
The formal notice does not freeze the zone. Here, the exclusion resolution, dated 14 November 2013 in the decision, came after the formal notice. Serving the notice therefore does not secure the sale, and a valuation prepared to support the price sought may lose its purpose. In pre-emption (préemption), a separate mechanism that starts from a sale decided on by the owner, the public body may also pull out: its withdrawal is not late while the appeal on the price is pending, as held in a decision of 29 June 2017 discussed separately.
Excluded property is valued outside the zone. The owner keeps the property. The question is no longer the price the expropriation judge would set, but the market value (valeur vénale) of the property retained, in the light of the market and of the planning rules now applicable to the plot, at a current date. The report prepared for the purchase notice therefore cannot be carried over as it stands. Comparables are chosen among properties subject to the same planning rules, a requirement restated for a pre-empted property in a decision of 14 December 2017 discussed separately.
When the purchase notice succeeds. If the property stays within the zone and the transfer is ordered, the expropriation judge sets the price. A 2023 decision accepts, on a purchase notice, a discount (abattement) for buildings put up without a permit, even where demolition is time-barred. And a municipality that resells as building land a property it acquired on a purchase notice, without keeping it for a public-interest use, must compensate the former owner, according to a 2019 decision. In a different setting, that of compulsory purchase in the public interest, another 2023 decision clarified the reference date for an expropriated property located in a ZAC and subject to the urban pre-emption right.
What the valuer takes from it
- The municipality may amend the perimeter of a ZAC without first amending the PLU; property excluded by a resolution published before the judgment can no longer be the subject of a purchase notice.
- The zoning map is not enough: the valuer gathers the resolutions creating and amending the zone, with proof of their publication, and dates the state of the perimeter relied on.
- Proof of publication may be produced on appeal: the file is followed to the end of the proceedings.
- The formal notice does not freeze the perimeter; a valuation prepared for the purchase notice may lose its purpose.
- Excluded property is valued as property retained, at its market value, under the planning rules now applicable to it.
Further reading
The Compulsory purchase and pre-emption page describes the assignment, its timescale and its fee. The guide Pre-emption by a public body in France: setting a defensible price and the glossary entries expropriation, juge de l’expropriation and valeur vénale complement this article. On pre-emption, two other 2017 decisions are discussed separately: Pre-emption in France: comparables under the same planning rules and Pre-emption in France: withdrawal not late while appeal pending. On the same theme: Reserved land surrendered then resold buildable: lost gain owed and Unauthorised buildings: discount despite time-barred demolition. The decision is available on Légifrance.
What next
A property within a ZAC, a purchase notice planned or served, and a price to establish?
I first gather the resolutions that set the perimeter of the zone and the proof of their publication, then establish the value of the property with references, for the owner serving notice on the public body as well as for the public body.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
