A court has overturned an important provision of Poznan's landscape resolution. It went to the lack of compensation for those who have to adjust their legal ads to the new municipal requirements. This is the result of a ruling by the Constitutional Court, which questioned the lack of a distinction between legal and illegal advertising. Admittedly, Poznań had once made such a distinction, but... it was opposed by the governor.
The fight against advertising chaos in Poland requires great determination, precision, good lawyers, and refined laws. And an imagination verging on moderate paranoia that helps predict the most unexpected twists and turns. Otherwise, it will probably be difficult to talk about success in cleaning up the appearance of cities. Another failure in the matter of advertising chaos has just been experienced by Poznań. The Provincial Administrative Court in that city revoked one of the important provisions of the resolution, after the owner of Biedronka stores, Jeronimo Martins Polska, challenged its provisions. Its lawyer ruled that by complying with the provisions of the resolution, the company would lose PLN 3 million.
type of expropriation
At issue is point 10 of the city's document, which mandates that existing advertising media be brought into compliance with the City's guidelines within a year of the resolution's entry into force, but does not provide for financial compensation for this move. Jeronimo Martens challenged the provision after a Constitutional Court ruling last December. At the time, the Court ruled that a provision of the Zoning Law (Article.37a, item.9), which allows municipalities to impose adjustments to advertisements erected legally without compensation, was unconstitutional. The WSA in Poznań therefore declared the provision of the municipal resolution invalid. Judge Edyta Podrazik also announced in the justification announced on January 25 that:
Regardless of how one assesses the legitimacy of the Constitutional Court, the Court fully shares the reasoning that the Court cited in its judgment. Namely: pointing out that this type of adjustment is a certain type of expropriation, and therefore mechanisms must be applied to compensate for the costs associated with the adjustment. [...]. The Court pointed out that it is not correct that the provision contained in Article.37a para. 9 of the Law does not distinguish between two categories of entities: those who have located advertisements legally, on the basis of a building permit [...] and those who have done so illegally [...].
All by the governor?
In this way, there was a paradox. Because in the first version of its landscape regulations passed a year ago, Poznań introduced such a division. However, it had to abandon it—as the City reminds us on its website—because:
by the decision of the then Wielkopolska Voivode, Michal Zieliński, the original resolution was repealed. Ultimately, the Court's verdict and the WSA granted in the dispute with the governor the right of Poznan councilors, who rightly aimed to protect the rights of owners of advertising devices.
We wrote about the crossing of city officials with the governor a year ago. His decision required changes in the provisions of the resolution, which finally went into effect last August. The six-month slip was part of a much longer history of delays, as the resolution was supposed to be ready in 2019. Officials declared that the compensation for the slowdown would be an exceptionally effective and polished document free of the flaws that have surfaced in other cities' resolutions. But it failed to do either.
all is not lost
However, the WSA's recent decision also has its bright side. This is because the court dismissed Jeronimo Martins' complaint regarding other points in the city's resolution. It concerned provisions that define the rules and conditions for the location of billboards, their size, quality standards, materials, etc. Judge Podrazik reported that:
In this regard, the Court found that the City had every right to introduce such regulations. While they violate the company's legal interest, [unlike the challenged provision—editor's note] they are fully legal. These regulations take into account the public interest, aim to preserve spatial order and protect the urban landscape.
The verdict is not final. What do the Poznań authorities intend to do? The answer is provided by the city website:
The City is currently working on a resolution of intent to amend the landscape resolution. However, the key thing in this context will be the introduction of amendments to the Landscape Act [Landscape Development Act—editor's note] by the Sejm. Only after the Sejm's decision will the City be able to amend the landscape resolution, which will have to be reviewed, agreed upon and put out for public review again. It will then be forwarded to city councilors.
For the time being, therefore, the Poznań resolution will operate to a limited extent, and city officials have announced that, by amending its provisions, they will aim to ensure that payment of compensation is not necessary. It remains to be seen, however, whether the City will not face further turbulence. The WSA will hear further lawsuits against the City Council filed over the landscape resolution by outdoor companies Cityboard Media and AMS.
