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Land Use Law, Liberalization, and Social Cohesion Through Affordable Housing in Europe: The Spanish Case Dr. Juli Ponce* I. Introduction: Social Exclusion and Urban Planning According to the philosopher John Locke: “I cannot count upon the enjoyment of that which I regard as mine, except through the promise of the law which guarantees it to me. It is law alone which permits me to forget my natural weakness. It is only through protection of law that I am able to enclose a field, and to give myself up to its cultivation with the sure though distant hope of harvest.” Law thus confirms property rights in a capitalist society. If Locke had lived in the twentieth century rather than the seventeenth, he would surely have mentioned the additional role of law as a means to control harmful externalities among users of land.1

THIS QUOTATION EMPHASIZES a dual perspective of land use law: protection of property rights and protection of other rights and values from externalities generated by owners and developers. Whereas the first approach is classical in land use law all around the world, the second approach has been less studied, especially from a social perspective. New economic and social patterns, with more social segregation, have increased the risks of social exclusion with territorial consequences.2 The new situation demands, in my opinion, new advances in the control of externalities generated by the uses of land. From a general European perspective, several official documents and reports acknowledge the increasing difficulties of poor people in

*Professor Titular of Administrative Law, University of Barcelona, Barcelona, Spain. E-mail: [email protected]. This work has been made possible thanks to the Spanish research project Derecho Urbanı´stico y Exclusioń Social: La Lucha Jurı´dica Contra los Guetos Urbanos (BJU2003-09694-C02-02, backed by the Direccioń General de Investigacioń, Ministerio de Ciencia y Tecnologıá). 1. RUTHERFORD H. PLATT, LAND USE CONTROL: GEOGRAPHY, LAW, AND PUBLIC POLICY 17 (Cyndy Lyle Rymer ed. 1991) (emphasis added) (citation omitted) (quoting John Locke). 2. GLOBALIZING CITIES: A NEW SPATIAL ORDER? 1 (Peter Marcuse & Ronald van Kempen eds., 2000).

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achieving a decent place to live, underlining the increasing urban segregation.3 This European sensibility has been introduced in several legal documents. Article 2 of the European Treaty, and Article 2 of the European Union Treaty, establish as European goals the promotion of a sustainable, balanced, and shared development, and the achievement of the social and territorial cohesion. The European Charter of Fundamental Rights, to be included in the future European Constitution, establishes in Article 34, paragraph 3, that “[i]n order to combat social exclusion and poverty, the Union recognizes and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.” Connecting local public policies and segregation, the European Charter for the Safeguarding of Human Rights in the City of 2000 establishes in Article 3, that “[f]reedom of conscience and of individual and collective religion is guaranteed by the municipal authorities to all citizens. Within the limits of the national legislation, the municipal authorities do everything necessary to ensure such rights, overseeing this to avoid the creation of ghettos.”4 Several national land use laws have tried to combat social exclusion through the use of different techniques, reminiscent of American inclu-

3. For example, in COMMISSION OF THE EUROPEAN COMMUNITIES, TOWARDS A EUROPE OF SOLIDARITY: INTENSIFYING THE FIGHT AGAINST SOCIAL EXCLUSION, FOSTERING INTEGRATION (Office for Official Publications of the European Communities 1992), it is possible to find a connection between social exclusion and urban segregation, acting in fact as a geographical mark of the first one. See also the Opinion of the Economic and Social Committee on Sustainable Development in Building and Housing in Europe, 1997 O.J. (C 355) 16 (insisting on the social dimension of sustainable development, instead of economic and environmental aspects, underlining the necessity of “affordable housing for all, including lower-income groups,” as well as the “creation of a suitable living environment which underpins social integration” and to “reducing social tensions and conflicts by preventing exclusion, making social and cultural services accessible and affordable and providing opportunities for participation”). Finally, it is also interesting to take into account the Opinion of the Committee of the Regions on “Housing and the Homeless,” 1999 O.J. (C 293) 24 (regarding the homeless and housing in Europe). 4. Emphasis added. Several European cities from different countries (e.g., Barcelona) have signed this Charter, elaborated in the City of Saint-Denis in 2000. The signatory cities have to incorporate into their local ordinances the principles and standards, and guarantee mechanisms contemplated in the Charter, and have to mention it explicitly in the legal reasoning for municipal actions. The signatory cities undertake to create a commission entrusted to establish, every two years, an evaluation of the application of the rights recognized by this Charter, and to make such evaluation public (Final Provisions). About the legal relationships between land use and religious

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sionary zoning.5 In the European arena, France can be seen as one of the most relevant cases, especially since the Loi de lórientation sur la Ville of 1991 and other later laws that have changed the face of French land use law by moving it toward social goals.6 But, other European countries attempt to decrease social exclusion by providing affordable housing. In England, for example, the national government publication Planning Circular 6/98: Planning and Affordable Housing mentions conditions and planning obligations linked to planning permissions as legal tools for making the developers provide a portion of land or buildings for affordable housing.7 In the Spanish case, all the elements mentioned above are clearly visible. There is an increasing urban segregation connected with new phenomena like immigration from third world countries,8 and a legal reaction that tries to combat the urban segregation by means of new legal tools. At the same time, there is a strong political movement, represented by the conservative government in power since 1996 that

freedom in Spain, see Juli Ponce, Inmigracioń, Religioń y Derecho Urbanı´stico, CUADERNOS DE DERECHO LOCAL (Oct. 3, 2003). 5. About this legal technique, see, for example, DANIEL MANDELKER, LAND USE LAW § 7.26 (5th ed. 2003), and in Spanish, see Toma`s Font i Llovet, Derecho Urban´ıstico y Ordenacioń Urbanı´stica Uxcluyente en los Estados Unidos de Ame´rica, in ANUARIO DEL GOBIERNO LOCAL 2002, 196 (2003). 6. In that sense, talking about a new stage where the land use law is a “social” one, see H. Perinet-Marquet, Les Orientations Sociales de la loi d’Orientation sur la Ville, in LES ORIENTATIONS SOCIALES DU DROIT CONTEMPORAIN. ECRITS EN FAVEUR DE JEAN SAVATIER 383 (1992). 7. Office of the Deputy Prime Minister, Planning Circular 6/98: Planning and Affordable Housing, at http://www.odpm.gov.uk/stellent/groups/odpm_planning/ documents/page/odpm_plan_606806.hcsp (last visited Mar. 1, 2004) (applied within the framework policy set out in the Planning Policy Guidance note 3 (PPG3): Housing (1992)). Planning Policy Guidance (PPG) notes set out the government’s policies on different aspects of planning.). They should be taken into account by regional planning bodies and local planning authorities in preparing regional planning guidance and development plans, and may also be material to decisions on individual planning applications and appeals. In the case of housing, according to both mentioned documents, the local authority is entitled to refuse planning permission if the developer is unwilling to make the contribution to subsidized and low-cost housing. A. Golland & M. Oxley, Europe Looks for Housing Solutions, URBAN LAND EUROPE 40 (Winter 2004), explain that in recent years, “about 10 percent of all new housing given planning permission— around 15,000 dwellings—has been affordable housing secured through planning. Nearly half of this has been in London and southeast England, with comparatively small volumes in northern England.” A good explanation about different European regulations in this field, including the English case just mentioned above, can be found in Land for Social Housing, a study carried out by Barrie Needham & George de Kam in cooperation with members of CECODHAS (Nov. 2000) (CECODHAS is the European Liaison Committee for Social Housing representing its member organizations to European and International Institutions). 8. See the Official Report, La desigualdad urbana en Espanã, MINISTERIO DE FOMENTO (2000).

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tries to promote an intensive use of land in order to build more dwellings and reduce housing prices.9 Today, housing in Spain is on the political agenda. There is great controversy about the reasons for such a huge rise in prices since the end of the nineties. According to a recent article published in The Economist, Spain, among the developed countries studied, has the highest and most sustained rise in housing prices.10 Following the discussion, land prices usually become a major enemy to be fought by public intervention and changes in regulation. However, the reaction of housing and land markets to modifications in land use law is not always as expected. In 1998, land use was liberalized by the Spanish central government.11 The purpose was explicitly to increase land supply which, theoretically, would lead to a decline in land prices, and consequently housing prices. The maze of distribution of responsibilities between levels of government in Spain created an unstable situation for the majority of Comunidades Autońomas [Autonomous Communities].12 This was because the Autonomous Communities and municipalities have a constitutionally protected self-government and have discretionary powers to be used in the field of land use. Such discretion allows regional and local bodies to develop their own public policies, which frequently are not in favor of liberalization, depending on the political colour of the respective regional and local governments. Thus, national, regional, and local policies in the field of land use regulation can be, and actually are, different, creating problems and contradictions. Moreover, the liberalization mentioned above is taking place in a new and changing social scenario. Spain is facing an important change in land use patterns. On one hand, urban sprawl is becoming a central issue. On the other hand, immigration, especially from non-European countries with a lot of poor people, is increasing dramatically. Both phenomena generate more spatial segregation in Spanish cities, which jeopardizes social cohesion.13 9. FERNANDO E. FONSECA FERRANDIS, LA LIBERALIZACIOŃ DEL SUELO EN ESPRESUPUESTOS Y MARCO JUR´ıDICO-CONSTITUCIONAL (1999). 10. Going Through the Roof, ECONOMIST, Mar. 30, 2002, at 59. 11. National Land Use Act of April 14, 1998, pmbl. 12. There are seventeen Autonomous Communities that form the basis of the highly decentralized country born after the Spanish Constitution of 1978. The Autonomous Communities are territorial entities with political power, situated in a “regional” level, between the Estado central (the name can make an American reader go wrong: it is comparable to the American national level) and the local level. Although Spain does not have a federal system, it has three levels of political power and an important degree of decentralization. For more details about the political structure of Spain, see ELENA MERINO-BLANCO, THE SPANISH LEGAL SYSTEM 47 (1996). 13. JULI PONCE, PODER LOCAL Y GUETOS URBANOS: LAS RELACIONES ENTRE EL ˜ A: PAN


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This article analyzes the Spanish case, the potential impact, if any, of changing land use regulation on housing prices, and spatial segregation by means of a multidisciplinary approach combining both legal and economic perspectives. Moreover, empirical evidence on land and housing prices in Spain will provide a link between both issues. The study is divided into two parts. First, this article examines the Spanish legal framework. As we will see, since 1998, a recent neoliberalist approach has promoted a substantial change in the historical national land use law. This legal modification has been passed with the intent to declare all of the land available for urbanization in Spain, except for some cases provided by the law. Not all regional and local governments have accepted this legal shift. They have enacted regulations to conserve the traditional roots of urban planning in Spain, avoiding the application of national laws.14 On the other hand, regional and local regulations have introduced legal mechanisms to fight against social segregation, creating compulsory tools to promote affordable housing through activities of the private sector.15 The new regional and local regulations follow the path of prior American and French legal essays.16 Second, this article draws a number of preliminary conclusions about the relationship between economics and land use law in order to investigate if the current legal changes in Spain are able to provide a larger number of affordable and better placed housing for the poor. We can advance that high housing prices are causing a geographical shift option: poor people are moving from the center to the peripheries, or directly to peri-urban areas, looking for affordable housing. This is not due to free choice, but by an unavoidable necessity as a result of the high prices of free-market housing and an insufficient supply of affordable private or public housing in central areas. Thus, the residential shift provides an alternative mechanism for regulating housing prices in relationship to wages. But it creates a collateral negative effect: the increase of urban segregation just in a moment of high immigration. Liberalization seems to make the effect worse, at least until now, while public regulation of market failures is just beginning. DERECHO URBAN´ıSTICO, LA SEGREGACIOŃ SSPACIAL Y LA SOSTENIBILIDAD URBANA (2002). 14. A comparative approach of the different regional legal regulations of land in Spain can be found in the extraordinary 2003 review, El Derecho urbanı´stico de las Comunidades Autońomas (I), JUSTICIA ADMINISTRATIVA (2003). 15. PONCE, supra note 13, at 158. 16. PONCE, supra note 13, at 53 (analyzing the American inclusionary zoning and the French legal tools for achieving the mixite´ sociale [social co-education]).

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II. The Framework of Spanish Land Use and Housing Law

The following discussion will provide several general and brief ideas about how land use law works in Spain. The explanation will focus on very general trends, sometimes comparing the Spanish situation with American and other European land use laws. In order to aid understanding, the analysis will combine the explanation of historical and current land use law with their connection to affordable housing in the social and economic contexts by paying special attention to the main failures of the Spanish legal system. It is necessary to take into account that the key source of Spanish land use law is legislation. Case law is obviously important too, but the leading role has been played, until now, by the legislative branch, which has created modern land use law in Spain through several very technical acts.17 However, urban planning has a major role in the scenario. Urban planning is compulsory because it can be regional, coming from the Autonomous Communities, or local, the most traditional and important in Spain.18 Urban planning in Spain employs a range of different legal tools, for example several kinds of maps and documents (e.g., a specific document explaining the reasons for the public policy, which supports concrete regulations), as well as rules separating the land into zones, and deciding uses. Therefore, a plan must exist to regulate land use because it is a legal requirement in all of the Autonomous Communities that, as we explained before, form the regional level.19 A. The Historic Perspective 1. THE SITUATION BEFORE 1956

The regulation of land use has existed for a long time in Spain, even during the Ancie`n Re´gim.20 The modern background dates back to the liberal state of the nineteenth century, which was bound to policıá [police power] at the local level. Regulation was concentrated with the 17. This is normal in a country belonging to the civil law tradition, where the case law is not a source of law but just a complement of the legal system, and where the social understanding of the judicial role is quite different from the common law perspective. For an explanation of those aspects, see MERINO-BLANCO, supra note 12, at 44. 18. EDUARDO GARC´ıA DE ENTERR´ıA & LUCIANO PAREJO ALFONSO, LECCIONES DE DERECHO URBAN´ıSTICO 178 (Civitas 2d ed. 1981). 19. National Land Use Act of April 14, 1998. See also Constitutional Court’s decision of July 11, 2001, ¶ 6. 20. Under the colonial Spanish rule, a similar regulation of land uses was enacted in South America. See ALLAN RANDOLPH BREWER-CAR´ıAS, LA CIUDAD ORDENADA (Instituto Pascual Madoz, Universidad Carlos III 1997).


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growth of cities and with problems such as health and security. Public intervention used several legal techniques such as ordinances, alignments, and compulsory purchases, first regulated by the Compulsory Purchase Act of 1836.21 Land use law developed in a more technical way in the twentieth century. Since the 1920s, more modern legal techniques were included in legal codes.22 This was the case for zoning. In the 1930s, the idea of regional planning arrived in Spain. However, because of the civil war, there were no concrete results, just some interesting studies. That was the case for the entire region of Catalonia in 1932 by means of a “zoning distribution plan,” an interesting official report without practical consequences.23 Regarding affordable housing, after a bill in 1878 and the creation of several research committees, the Cheap Houses Act of 1911 was the first law addressing the problem of housing for working people.24 The Act relied on private developers and established public aid for entrepreneurs. Unfortunately, the regulation was unsuccessful mainly because of the lack of public resources to develop its provisions, and it was changed before the beginning of the civil war in 1936.25 After the civil war, public efforts were focused on the rebuilding of the devastated country. The Instituto Nacional de Vivienda [National Housing Institute] was created in 1939 to achieve this goal. Some years later, in 1957, the Ministerio de la Vivienda [Housing Ministry], was charged with the responsibility of creating housing policy in Spain. The ministry lasted twenty years until it was merged with the department of public works at the end of the 1970s.26 2. THE NATIONAL LAND USE ACT OF 1956: THE FORMAL ROLE OF PLANNING IN SPAIN

Modern land use law was created in 1956 in the middle of Franco’s long dictatorship. The National Land Use Act of 1956 was enacted when Spain was a centralized nondemocratic country.27 21. See the classic study by Martin Bassols, Geńesis y Evolucioń del Derecho Urbanı´stico Espanõl (1812–1956) (1973). 22. E.g., the Municipal Charter of 1924. See Bassols, supra note 21, at 493. 23. FERNANDO DE TERAN, HISTORIA DEL URBANISMO EN ESPANÃ (III, siglos XIX y XX) 174 (Ca´tedra, 1999). 24. Cheap Houses Act of June 12, 1911. 25. MARIA TERESA SAŃCHEZ MARTINEZ, LA POL´ıTICA DE VIVIENDA EN ESPANÃ 99 (Universidad de Granada ed., 2002). 26. DE TERAŃ, supra note 23, at 229. 27. National Land Use Act of May 12, 1956. Despite these important facts, scholars agree that the National Land Use Act of 1956 was of high technical quality, starting the modern Spanish land use law. See, e.g., DE ENTERR´ıA, supra note 18, at 95.

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One of the most important points of the regulation was that it considered the primary purpose of land was for agricultural use. Therefore, every possibility of building something was a gift given by public powers through urban planning.28 The plan was, at least formally, a product of municipalities, which had an important degree of discretionary power. The problem was that discretion was not used by democratic municipalities and there were frequent abuses of power in order to provide favors to powerful groups supporting some fascist mayors.29 Consequently, urban planning was the central pie`ce de re´sistance of the whole legal system. Plans did not work well. Actually, they did not work at all. Twenty years after the National Land Use Act of 1956, just 7.5 percent of Spanish territory had implemented an urban plan.30 Therefore, the failure of the plan was in reality the failure of law. On the other hand, with regard to the management of development, the Spanish legal system is not familiar with American exactions or impact fees as a way of financing new development of cities. The National Land Use Act of 1956 established a legal system to develop public infrastructure and public facilities based grosso modo on the landowner’s legal duty of freely giving a fixed percentage of land to the municipality. In general terms, this solution is still in effect today with a national legal maximum of 10 percent of the private benefit (and a possible smaller percentage in each Autonomous Community, according to each regional law), as well as the necessary land for providing the streets, green areas, and local public facilities. Moreover, the landowner must make all necessary changes to develop the area where the plot of land is included.31 In the real world, this rigid system has been made flexible through convenios urbanı´sticos [development agreements] between the city councils and the developer. Development agreements between municipalities and the owners or developers are regulated by land use laws and are accepted under certain procedural conditions imposing transparency and publicity in order to promote accountability.32 28. DE ENTERR´ıA, supra note 18, at 96. According to the National Land Use Act of 1956, urban plans regulated the right of property without taking it: they design [delimitan] the right of property, and a consequence of it is that the ius aedificandi is extracted from the right. This was an important change by comparison with the traditional regulation contained in the Civil Code of 1889. 29. FERNANDO DE TERAŃ, PLANEAMIENTO URBANO EN LA ESPANÃ CONTEMPOR´ NEA (1900–1980) 461 (1982). A 30. THOMA´S RAMOŃ FERNAŃDEZ, MANUAL DE DERECHO URBAN´ıSTICO 23 (16th ed. 2001). 31. JOSE´ ANTONIO RAMOS MEDRANO, LOS DEBERES URBAN´ıSTICOS DE LOS PROPIETARIOS DE SUELO (1996). 32. FERNAŃDEZ, supra note 30, at 180.


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It is necessary to emphasize several aspects affecting affordable housing during this historic period. On one hand, public activity in favor of housing for poor people was disconnected from urban planning. Designs for, and decisions about, affordable housing were made against local plans because of the urgency for providing shelter to immigrants coming from agricultural areas.33 The separation between housing policy and urban policy leaves a legal heritage still visible in Spanish law today.34 On the other hand, public intervention in the housing sector was based on an indirect approach, the so-called administrative law doctrine of fomento [promotion],35 much more than on the development of public housing. Moreover, public intervention did not help especially poor people because legislation did not take into account the individual economic situations of citizens when giving subsidies or fiscal deductions. Essentially, the housing policy was understood as a way of promoting private activity in order to improve the general economic situation, instead of as a consistent social policy in favor of poor people. This explains why large numbers of people belonging to the middle class received subsidized housing or obtained fiscal advantages even when purchasing a second house for leisure purposes.36 Thus, for the most part, public policies were clearly regressive. But they were balanced by strong control over the rental sector. Thus, the traditional control of private rental housing (e.g., the Urban Rent Act of 1964) established the compulsory prorogue in favor of tenants and, in practical terms, froze rent prices, pushing them out of the market.37 This was a public and unfair way of guaranteeing affordable housing, by establishing social policies in the charge of leaseholders. That system lasted until 1985, when the Decree of April 30 finished the compulsory prorogue and rent control for leaseholders.38 33. DE TERAŃ, supra note 23, at 246. 34. RAMOŃ PARADA VA´ZQUEZ, DERECHO URBAN´ıSTICO 22 (1999). 35. A kind of public activity based on subsidies and fiscal measures such as a reduction in taxes. See SEBASTIAŃ MART´ıN-RETORTILLO, DERECHO ADMINISTRATIVO ECONO´MICO 437 (La Ley vol. I, 1988). 36. See Limited Rent Housing Act of July 15, 1954; J. Ra´fols, Ciclo Inmobiliario y Polı´tica de Vivienda en Espanã, in AURORA PEDRO BUENO ET AL., PROBLEMAS DE ACCESO AL MERCADO DE LA VIVIENDA EN LA UNIOŃ EUROPEA 25 (2000). 37. Actually, the law provided for a mechanism to bring the rents up to date. The mechanism relied partially on governmental regulation. But the regulations were never approved. 38. The Urban Rent Act of 1994 allowed limited increases of frozen rents depending on the real economic situation of every tenant. See Montserrat Pareja Eastaway & Ignacio San Martıń Varo, The Tenure Imbalance in Spain: The Need for Social Housing Policy, 39 URB. STUDIES 283, 288 (2002).

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3. THE REFORMATION OF 1975

During the 1960s and part of the 1970s Spain became an industrialized country, and in turn, suffered great social and economic transformations. In the urban sphere, the important phenomenon was the movement of a large part of the population (millions) from agricultural areas to cities. The problem was how to provide proper shelter for them. The growth of the cities was quite chaotic. Theoretically, urban planning had to control and sort out the emigration. But things were different in the real world. A large number of municipalities did not pass plans, and, in other cases, arbitrary decisions caused speculation and made an orderly urban sprawl impossible. Because of this and other factors, it was decided to enact a second Act in 1975 to complete the National Land Use Act of 1956 and to avoid such problems.39 However, the general structure of the legal system remained untouched. In 1976 the Acts of 1956 and 1975 were merged into a new Act, the Texto Refundido.40 4. THE SITUATION AFTER THE CONSTITUTION OF 1978

Just two years later, the Spanish Constitution of 1978 produced deep change in Spain. Spain became a democratic system and a highly decentralized country, shifting from a centralized model to an almost federal one. Both changes had a legal impact in the field of land use policies, affecting the regional41 and local level.42 Developing the constitutional provisions, the Basic Local Regime Act of 1985 specifically mentions the land use regulation among the local competences.43 Then, the national level apparently lost its competences in the field in 1978. With regard to housing, an important Constitutional Court decision of 1988 clarified the situation.44 Although constitutional case law had denied the existence of a general “spending power” for the national level, the Constitutional Court, due to the constitutionally provided national economic power, accepted a limited role for the national government in that important decision.45 Thanks to those powers, the na39. Reformation Land Act of May 2, 1975. 40. Consolidation Act 1346/1976 of April 9, 1976. 41. See C.E. tit. VIII, ch. 3, art. 148, ¶ 1, § 3 (the Autonomous Communities are the territorial entities with competences in relation to land use and housing). 42. See C.E. tit. VIII, ch. 2, art. 140 (establishing the autonomy of the local government). 43. Basic Local Regime Act of April 2, 1985, art. 25.2 d. 44. Constitutional Court decision of July 20, 1988. 45. See C.E. tit. VIII, ch. 3, art. 149, ¶ 11, 13 (recognizing state competences about general economic regulations).


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tional level could define housing policy programs and establish national contributions to the housing sector. According to the basic national regulations, subsidies and detailed regulations are still in regional hands.46 Such a legal system contains a high degree of complexity, which has to be managed by means of different cooperative legal mechanisms.47 a. The Right to Shelter According to the Spanish Constitution of 1978, Spain was declared a “Social State” and several social rights were provided for.48 Among them, for the first time in Spanish constitutional history, the right to shelter was codified in Article 47: All Spaniards are entitled to enjoy decent and adequate housing. The authorities shall promote the necessary conditions and lay down appropriate standards in order to make this right effective, regulating land use in accordance with the general interest in order to prevent speculation. The community shall have a share in the benefits accruing from the town-planning policies of public bodies.

Article 47 must be connected with several others in order to understand its force and role. That is the case with Articles 9.2 and 14 regarding equality. Article 9.2 of the Spanish Constitution provides the following: It is incumbent upon the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life.

And Article 14 establishes that: Spaniards are equal before the law and may not be discriminated against on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstances.

In addition, Article 45 cannot be forgotten: 1. Everyone has the right to enjoy an environment suitable for personal development, as well as the duty to preserve it. 2. The authorities shall safeguard a rational use of all natural resources with a view to protecting and improving quality of life and preserving and restoring the environment, by relying on essential public cooperation. 46. For a study of the legal situation after the decision, see MIGUEL BELTRAŃ DE FELIPE, LA INTERVENCIOŃ ADMINISTRATIVA EN LA VIVIENDA: ASPECTOS COMPETEN´ N DE LAS VIVIENDAS DE PROTECCIO ´ N OFICIAL CIALES, DE POLIC´ıA Y DE FINANCIACIO (2000). 47. For example, sectional conferences and public agreements, according to Article 6 of the Common Administrative Procedure Act of 1992 (modified in 1999). See JOSE´ MUNÕZ CASTILLO, CONSTITUCIOŃ Y VIVIENDA (2003). 48. “Spain is hereby established as a social and democratic State, subject to the rule of law, and advocating as highest values of its legal system liberty, justice, equality and political pluralism.” C.E. preliminary tit., art. 1, para. 1.

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3. Criminal or, where applicable, administrative sanctions, as well as the obligation to make good the damage, shall be imposed, under the terms to be laid down by the law, against those that break the provisions contained in the foregoing paragraph.

The problem is, if you read Article 47 you will obviously see that the Spanish Constitution does not directly provide dwellings for everyone. Article 47 is included in a section devoted to social and economic policy principles, which bind authorities in the way described by Article 53.3: The legislation, judicial practice and general action of the authorities shall be based on the acknowledgement, respect and protection of the principles recognized in Chapter 3. The latter may only be invoked in the ordinary courts in accordance with the legal provisions implementing them.

Thus, the Spanish Constitution “only” provides that public powers (the legislative, executive, including municipalities, and the judicial branch) are obliged to give a “realistic opportunity”49 for citizens to have affordable, adequate, and decent shelter. As the French Conseil Constitutionnel [Constitutional Council] has pointed out, in relation to the obligation of achieving a social mixture established by the law about the solidarite´ [solidarity] and the renouvellement urbains [urban renewal],50 such duties do not oblige a result but a certain behavior, one addressed to achieve the constitutional goal.51 Consequently, Spanish municipalities must develop proper administrative behaviors not just for avoiding unnecessary burdens to affordable housing but for actively promoting it. In that sense, planning procedures play a key role in guiding local discretion toward meeting the needs of poor people by assessing their needs, and providing enough land to meet them. Here, we can find an important link between urban planning and affordable housing.52 However, the truth is housing is very expensive in Spain and large portions of the population have problems finding a proper place to live, especially young people, immigrants, and other groups with specific difficulties.53 Housing policy has tried to face such difficulties since the 1970s by taking into account the applicants personal data when granting aid for subsidized housing.54 According to the distribution of powers explained 49. S. Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390, 413 (N.J. 1983) (using the expression from American case law). 50. See Act of December 13, 2000. 51. See decision of the Conseil Constitutionnel of December 7, 2000; PONCE, supra note 13, at 83. 52. PONCE, supra note 13, at 156. 53. Regarding young people, see Consejo Economico y Social’s report of October 2002. 54. MARTINEZ, supra note 25, at 118.


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above, several housing plans were approved by the national government during the 1980s and 1990s,55 with the intention of promoting affordable housing with the help of private developers and potential buyers.56 However, all of those plans have been unable to stop the lack of affordable housing. This is due in part to the low interest of private investors in building this kind of housing in a context of high economic growth with interesting opportunities in the normal market without public aid, as well as to the low public investments in this sector.57 On the other hand, public aid has been concentrated in the owner-occupied sector, while the percentage in the rental sector is the lowest by comparison to other European countries.58 Finally, it is necessary to underline that the direct provision of affordable housing by the public sector through servicio pu´blico [public service] is not an important public activity. Public authorities have not been sensitive to the constitutional right to shelter, partially because of the fact that citizens, generally speaking, have not considered housing a real right like education or health care, but largely as an investment. In the absence of social demand, public services in this area have not developed, and there is not a significant stock of public rental housing in Spain able to absorb the existing demand of poor people who are excluded from the free market and from subsidized housing.59 b. The Regional Legislation Using Constitutional Clause 148.1.3, the seventeen Autonomous Communities have enacted laws creating their own land use and housing law. For example, in Catalonia, the current Housing Act was enacted in 1991 and the current Land Use Act in 2002, thereby replacing the Act of 1990.60 The new laws were the result of a big movement in favor 55. Beginning with Decree 2455/1980 of November 7, 1980. 56. Such as Viviendas de Proteccioń Oficial [Officially Protected Housing] and other forms of housing with limited price by law. 57. Around half of the European standard. See AURORA PEDRO BUENO ET AL., PROBLEMAS DE ACCESO AL MERCADO DE LA VIVIENDA EN LA UNIOŃ EUROPEA 124 (2000). 58. Fourteen percent (58 percent in Germany or 35 percent in the United Kingdom) of rented housing, while the percentage of it of public rented housing is only 8 percent in Spain (17 percent in Germany or 71 percent in the United Kingdom), according to data provided by the European Commission and quoted by Eastaway & Varo, supra note 38, at 287. 59. Carme Trilla, Léstat del Benestar i la Familia: L´habitatge per als Joves, in VICENC NAVARRO (Coord.), L’ESTAT DEL BENESTAR A CATALUNYA 263 (2003) (speaks about a consistent traditional liberal [in the European sense of noninterventionist] public policy as regards affordable housing in Spain). 60. Housing Act of November 29, 2001; Land Use Act of March 14, 2002.

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of change because there was a general feeling that the Act of 1990 did not match the new social and economic problems.61 c. The Difficult 90s: The Reformation of National Legislation Although it seemed that the national level had lost its competences after the Spanish Constitution of 1978, it continued making laws concerning land use. The national level found support for their activity in several different constitutional clauses.62 Using their power, two National Acts were passed in 1990 and 1992, creating a common legal framework for the now highly decentralized country.63 Meanwhile, the price of land increased dramatically, especially in major cities, and the right to shelter became a myth for a lot of people who had been obliged to leave (expelled in the words of R. Lo´pez de Lucio) the inner cities64 and go to the suburbs in search of affordable housing.65 d. The Constitutional Court Decisions of 1997 and 2001: The Fragmentation of Land Use Law, the Survival of a National Hard Core, and the Crisis of Urban Planning Following the reformation in the early 1990s, a highly debatable and controversial decision of the Spanish Constitutional Court in 1997 almost destroyed the common legal structure. The decision held that the National Acts of 1990 and 1992 were essentially unconstitutional (about 80 percent), and consequently void.66 The decision established that land use law was a regional business and that the national level could only regulate several concrete aspects of this matter using connected competences.67 Following the Constitutional Court’s guidelines, the national level enacted a new land use act immediately. The National Land Use Act of 1998 tries to fill the gap and provides general rules about classes 61. J. M. Trayter, Principios Generales de la Ley 2/2002, de 14 de Marzo de Urbanismo de Catalunã, REVISTA DE URBANISMO Y EDIFICACIOŃ No. 6, at 41 (2002). 62. E.g., C.E. tit. VIII, ch. 3, art. 149, ¶ 3 (allows the national level to enact supplementary legislation to complete the regional legal systems). 63. Reformation Land Act of July 25, 1990; Consolidated Act of June 26, 1992. 64. R. Lo´pez de Lucio, Planeamiento Urbanı´stico, Mercado del Suelo y Polı´ticas del Suelo: Bases para el Debate Sobre la Reforma de la Legislacioń Urbanı´stica en Espanã, 1 URBAN 85 (1997). In Spain, the good places to live are where the rich people and middle class usually live. 65. In Spain, the suburbs are the poor places where there are fewer facilities and a lower quality of life. 66. Constitutional Court decision of March 20, 1997. 67. See, e.g., C.E. tit. VIII, ch. 3, art. 149, ¶ 1, §§ 1, 18 (basic rules about compulsory acquisitions which are connected directly with the property right or administrative procedures concerning urban planning).


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of land and limits on local plans, as well as rules about compulsory acquisitions.68 Despite this, a new element must be taken into account in the current legal scenario. There is a crisis in land use planning because of the winds of liberalization, privatization, and deregulation coming from the United States, and passing throughout Europe. Currently, urban plans are considered by some authors as being out of date, useless, and a bureaucratic barrier to entrepreneurs. As a result, a new and strong ideological, political, and legal movement is trying to reduce the role of urban planning and promote the market as a substitutive and more effective tool.69 Because of these factors, a modification of the National Land Use Act of 1998 was passed in 2000, with the intention of going further with the liberalization started in 1998.70 Since then, all Spanish land is, in principle, able to be urbanized.71 It seemed that local plans had lost their pre-eminence and local governments their key role of leading the urban process. The clear goal of the reform was to increase the supply of land available for urbanization because the national government thought that it would cause a decrease in housing costs.72 Currently, there is a great deal of discussion in Spain about this point because it means a departure from the historic model. Some Autonomous Communities, like Catalonia, do not like the change and have used their legislative powers to stop it.73 Even when there was a coherent national, regional, and local policy of liberalization, it seemed dubious that more construction was useful in reducing housing prices. If we take the case of Madrid (Table 1) for example, available data 68. National Land Use Act of April 14, 1998. 69. This idea found an intellectual background in 1993 through the Report from the Court for the Defense of Free Competition (a public authority charged with the responsibility of preserving the free market). This report criticized the old legal model, which promotes an extreme interventionism, a high degree of discretionary powers in the hands of governments, and an inefficient use of land. The report suggested several changes, one of them accepted by the later legislation: the general consideration of all the land as urbanizable in Spain. This report was followed by another in 1994, coming from an Expert Committee created by the socialist government. The second report included more reasonable (and better studied) measures to improve the system. A complete reference to both documents can be found in FERRANDIS, supra note 9, at 165. 70. Real Decreto-ley 4/2000 of June 23, 2000. 71. There is a legal right to do so. Therefore, it changes the traditional point of view emphasized since 1956 that the primary use of land was for agricultural uses, as we saw above. 72. The regulation was compulsory for regional and local levels. 73. See Catalan Land Use Act of March 14, 2002, art. 32.

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TABLE 1: Housing prices in Madrid, 1976–2002.

Source: Ministerio de Fomento

seems to show that liberalization has had little impact on affordable housing. The regional reaction against the modification of the National Land Use Act of 1998 was the reason for an important Constitutional Court decision in 2001.74 The decision suggested that the National Land Use Act of 1998 was unconstitutional in some aspects, because it broke the constitutional distribution of powers between the national and the regional level. But the decision considered neither the material aspects nor the role of the local level. However, the Court showed a willingness to partially stop the liberalization in the future, taking into account a material perspective not only based on distribution of powers between levels.75 Although the decision actually did not do so, its obiter dicta seemed to foreshadow a clarification in a future decision still not enacted. The future decision could make the National Land Use Act of 1998 recover its original text allowing regional and local governments, through laws and planning to decide if a piece of land would remain raw because of general interest reasons,76 and, consequently, stopping the liberalization imposed by the national legislator. 74. Constitutional Court decision of July 11, 2001. 75. It seems that the decision suggests that urban planning is a public function that can not be given to private hands. Public authorities (by means of urban planning) have to control where and how urban developments are compatible with general interests. See Constitutional Court decision of July 11, 2001, ¶ 14. 76. For example, rational control of urbanization linked to sustainable development.


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At the moment, the national legal reaction to the Constitutional Court decision of 2001 has been to create a slight change in the text of the National Land Use Act of 1998.77 According to the new text, urban planners could decide that a portion of land should remain raw because of “objective territorial or urban criteria established by land use law.” Although it is necessary to wait and see the real effect of the new legal change, it seems that some local governments will use the open formula to stop liberalization whenever they decide that urban policies should achieve preservation of land according to environmental, social, or economic reasons.78 Although, according to constitutional case law, the national level has little power over land use, if we focus on housing policies, it is important to remember that housing plans and fiscal instruments are still in national hands, as we explained before. III. The Role of Judicial Power

From a less important role, case law has increased its importance since the 1990s following an aggressive group of decisions coming from the Spanish Supreme Court, which reduced the scope of urban discretion. It is possible to say that the courts are shifting the presumption of validity of urban planning in Spain.79 A. The Problem of Local Discretionary Powers Since the 1990s, case law has used general legal principles more intensely to reduce arbitrariness. The Spanish Supreme Court is advancing along a path of limiting discretion without eliminating the legitimate possibility of local designs and implementation of public land use policies. B. Controlling Land Use Regulation: Techniques; Rationality, Equality, and Proportionality (Relationship Means-Ends) Three general legal principles have been used to control land use regulation. First, the principle of accountability of public powers prohibits arbitrary actions.80 By controlling this, judicial power has obliged mu77. Urgent Measures for the Liberalization of the Land Property Market Act of May 20, 2003. 78. About the last legal reformation, see ENRIQUE SAŃCHEZ GOYANES, LA LEY 10/2003, DE 20 DE MAYO, DE MEDIDAS URGENTES DE LIBERALIZACIOŃ EN EL SECTOR INMOBILIARIO: COMENTARIO MONOGRA´FICO, LA LEY ( June 23, 2003). 79. JULI PONCE, DISCRECIONALIDAD URBAN´ıSTICA Y AUTONOM´ıA MUNICIPAL (1996). 80. C.E. preliminary tit., art. 9, ¶ 3 (guarantees the accountability of public authorities and prohibits arbitrary action on the part of the latter. Arbitrary decisions are

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nicipalities to fulfill their duty of producing reasons in support of urban planning, and courts are voiding irrational or absurd discretionary decisions.81 Second, the courts are using the principle of equality to avoid differing treatment among plots of land for senseless reasons.82 Third, judicial control relies increasingly on the principle of proportionality, highlighting the necessity of balancing public interests involved in urban planning, as well as the necessity of sensible results without excessive damage to private property.83 C. New Principles for an Improved Judicial Review? Besides the three principles mentioned above, judicial review could play an interesting role in implementation of new regional legislation. Discussed below, regional laws are including new legal principles for the use of land that are connected to the idea of sustainable development (e.g., social cohesion, mixed uses, or rational urban growth, from the developed inner center toward suburbia, thereby avoiding irregular jumps).84 Taking into account that judges are public actors obliged by the Constitution to promote affordable housing,85 judicial review could be an important tool for implementing a real system of affordable housing.86 IV. The New Challenges

In a context of new economies and globalization, all countries are becoming more and more alike. From our point of view, there are currently four main challenges in Spanish land use law. A. Urban Sprawl and Urban Renewal Planning: The Challenge of Sustainable Development Currently, the general trend in Spain is growth similar to the American situation: urban sprawl, increasing use of cars instead of public transunderstood as public decisions without the proper and complete reasoning supporting them.). 81. E.g., Supreme Court decision of December 15, 1986. 82. E.g., Supreme Court decision of July 17, 1989. 83. E.g., Supreme Court decision of March 18, 1993 (using a tool similar to the French bilan cost-benefit used by the Conseil d’E´tat). See also PONCE, supra note 79, at 206. 84. See, e.g., Catalonia Land Use Act of 2002, art. 2. 85. C.E. tit. I, ch. 3, § 2, art. 45 & ch. 4, art. 53, ¶ 3. Obviously, within their constitutional functions without interfering with other legitimate constitutional powers and respecting always the system of checks and balances designed by the Spanish Constitution. 86. Moreover, citizens have the ability to bring class actions against public activities or inactivities that make social housing difficult or impossible.


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portation, and new districts of detached single-family houses instead of higher density apartment blocks typical of early Spanish cities. Cities like Barcelona and Madrid are losing population, and metropolitan areas surrounding them are becoming bigger.87 At the same time there is a process of degradation in old inner cities, like Ciutat Vella in the City of Barcelona. Local governments try to fight against degradation using urban planning, other regulations, and even direct intervention in the market using mixed enterprise.88 In the middle of this degradation we have to face the new challenge of immigration.89 Many people come to find work in our industries and on farms, which need new workers. They look for inexpensive apartments in the old districts where the housing conditions are bad but the rent is low. Therefore, there is a concentration of foreigners in the inner cities. From a general European perspective, as we saw above, all of those problems have been considered by several documents and actions that take into account the idea of sustainable development. Following the path of European institutions, a new generation of Spanish regional laws is creating legal tools to achieve sustainable development in urban areas. The laws include environmental as well as social aspects in order to avoid urban sprawl and urban degradation. In that sense, the Catalan Land Use Act of 2002 establishes, as a legal principle, the public obligation of pursuing sustainable development that includes “social cohesion.”90 This goal implements urban renewal as a preferential policy, instead of one consisting of uncontrolled new development. It also justifies the possibility of local municipalities declaring land “nonurbanizable” by means of an urban plan, thereby removing an owner’s right to build whenever he chooses. Municipalities shall certify that the local plan has taken every possible measure to allow sustainable development, including social cohesion.91 In cases in which conflicts arise, judicial review of local decisions will address the practical problems associated with actual implementation of the legal principles. The eventual judicial review of the procedural aspects and scrutiny of the explanation given in support of discretionary decisions will be crucial.92 87. See PONCE, supra note 13, at 33 (addressing the population change). 88. M. Pareja & T. Tapada, Urban Renewal Planning in Barcelona: What Can We Learn from the Experience?, 8 EUR. SPATIAL RESEARCH AND POLICY 39 (2001). 89. The Spanish birth rate is very low, one of the lowest in the world. Thus, the nation needs new workers who are provided by immigration, which is increasing quickly. 90. Catalan Land Use Act of March 14, 2002, art. 3. 91. Id. at art. 59. 92. PONCE, supra note 13, at 184.

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B. Inclusionary Zoning The increasing concentration of poor people in some urban areas creates segregation at the same time. People belonging to the middle and upper classes tend to move out of the city looking for a higher quality of life in the less crowded areas where there are fewer problems and foreigners.93 Therefore, the sociological trend is a tendency toward spatial segregation. This is a tendency that public administrations will have to curb to avoid more serious problems. Moreover, they will need to follow several constitutional prescriptions that oblige public powers to look for territorial equity and solidarity among the different parts of the land.94 New regional laws have confronted this serious problem by creating legal tools to promote affordable housing built by the private and public sectors.95 If we take the case of the Catalan Land Use Act of 2002, we realize that the regulation requires that every local plan shall provide a fixed compulsory percentage (20 percent) of affordable housing among the total housing built in urban developments or urban renewals.96 Moreover, the Act explicitly connects land use and housing by means of the so-called Urban Activity Programs, which assess and meet the needs of affordable housing by taking all the necessary measures to guarantee proper land use in furtherance of such goals.97 Other modern regional laws enhance social mixture by providing for binding ratios of affordable housing.98 Moreover, regional legislation promotes social mixture by demanding more complex zoning in the same urban areas (e.g., by mixing different land uses such as residential, commercial, etc.).99 C. Effective Growth Management The third challenge is an effort to make some procedural aspects less complex and more speedy to provide easier land management and 93. PONCE, supra note 13, at 37. 94. E.g., C.E.. tit. 1, ch. 3, art. 40, ¶ 1 (establishes that “authorities shall promote favourable conditions for social and economic progress and for a more equitable sharing of personal and regional income.”); C.E. tit. VII, ch. 1, art. 138, ¶ 1 (establishes that the state guarantees the effective implementation of the principle of solidarity “by endeavouring to establish a fair and adequate economic balance between the different areas of Spanish territory.”). 95. PONCE, supra note 13, at 164. 96. Twenty percent of Viviendas de Proteccioń Oficial (Officially Protected Housing, a legal type of housing) of other forms of subsidized housing. 97. Catalan Land Use Act of March 14, 2002, art. 60. 98. For several examples, see PONCE, supra note 13, at 164. 99. Such is the case with the Castilla y Leoń Land Use Act of April 8, 1999 (establishes an “index of mixture” and obliges local authorities to set out a land reservation for nondominant uses).


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cheaper housing. A new generation of regional laws, headed by the Valencia Act of 1994, has tried to develop new systems of management with a preeminent role for private entrepreneurs.100 With the new laws, there is a distinction between the public function of designing and creating a city, the economic activity of the land,101 and the ownership of the land.102 The new regional laws create a “Developer Agent,” an individual, not necessarily the landowner, who can be in charge of “making city” through public decisions. Local authorities, if they decide directly to not carry out this public function, will contract out the developmental tasks. There will be a “tenderer” chosen, who can be either the owner, with a preferential right to be chosen, or a private third party, who will develop the plot of land. Although the system seems to work well, housing prices are still high.103 Thus, it will be necessary to wait and see if the new legal frameworks will be able to help provide affordable housing. On the other hand, some voices have indicated that the new system may be unconstitutional.104 D. The Need for Regional Planning and Metropolitan Public Bodies Finally, it is necessary to underline that from our point of view sustainable development, planning, and public intervention should take into account geographical scale. Currently, several important urban problems demand metropolitan solutions, for example, utilizing affordable housing as an effective tool for creating social cohesion. France, for example, has engaged in a new model of territorial organization based on the idea of agglomeration when trying to face urban problems.105 This idea has formed the backbone of three French acts, which give powers on housing matters to supra-local bodies.106 100. See MARTA LORA-TAMAYO VALLVE´ & RAMOŃ PARADA, URBANISMO DE OBRA PU´BLICA Y DERECHO A URBANIZAR: ANA´LISIS COMPARADO DESDE LAS APOR´ (2002). TACIONES DE G.E. HAUSSMANN Y LA DOCTRINA DE ILDEFONSO CERDA 101. The material transformation of “raw” law. 102. For example, the owner may or may not be the entrepreneur who finally develops the land. 103. For the case of Valencia, see Jose´ M. Banõ Leoń, La actividad urbanı´stica en la financiacioń de las haciendas locales, REVISTA VALENCIANA DE ECONOM´ıA Y HACIENDA NO. 2, at 33, 37 (2001). 104. About that discussion, see the review INSTITUTO NACIONAL DE ADMINISTRA´ N PU ´ BLICA, SPAIN, NO. 261–62, DOCUMENTACIO ´ N ADMINISTRATIVA (Sept. 2001– CIO Apr. 2002), for different contributions on this issue. 105. Toma´s Font, Les Te`cniques de Cooperacio´ Intermunicipal i la Seva Reforma, ELEMENTS DE DEBAT TERRITORIAL, NOS. 16, 31 (2002). 106. See Loi d’Orientation pour L’ameńagement et le De´veloppement Durable du Territoire, Law No. 99–533 of June 25, 1999, J.O., June 29, 1999, p. 9515; Loi relative au Reinforcement et a` la Simplification de la Coope´ration Intercommunale,

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In the Spanish case, new metropolitan and supra-local administrative structures have not been promoted consistently by regions. Moreover, regional planning has not developed in a consistent way in some areas, for example, Catalonia.107 Both factors sometimes make it difficult to fight against urban sprawl, exclusionary zoning, and consequently, social segregation. V. Preliminary Conclusions Taking into Account the Spanish Experience

According to all the aspects studied before, it is possible to draw the following main ideas: 1. The Spanish central government changed the classical land use law model in 1998. The National Land Use Act of 1998 tried to impose liberalization by declaring all of the Spanish land urbanisable, with some exceptions based on environmental protection and other general interests. But because of the current distribution of powers in Spain, a highly decentralized country, some regional governments reacted against that public policy. They have used their regulatory power in favor of re-creating regulation in the field. Moreover, regional governments have taken legal action against the National Land Use Act of 1998. At the moment, the Constitutional Court has yet to decide the final case. Therefore, decentralization has played a role in balancing different public policies and powers. The distribution of powers among the three levels of government has actually stopped the aggressive national policy, which was designed, in theory, to reduce housing prices. 2. Traditional Spanish law has separated land use and housing issues. This divorce has made coordination between both aspects in the development of public policies difficult. New regional legislation is recovering the lost link. 3. In Spain there have been regressive public policies in the area of affordable housing, which have helped the haves more than the have-nots. Fiscal instruments and subsidies have not traditionally helped the poor. Modern laws try to fill the gap by taking into Law No. 99–586 of July 12, 1999; Loi relative a` la Solidarite´ et au Renouvellement Urbains, Law No. 2000–1280 of Dec. 13, 2000, J.O., Dec. 14, 2000, p. 289. 107. Juli Ponce, Cooperacioń Intermunicipal y Coordinacioń Interadministrativa en el Ejercicio de las Competencias de Urbanismo y Vivienda: En Especial, el Caso Catalań, in TOMA´S FONT, ANUARIO DEL GOBIERNO LOCAL 2003 (2004) (unpublished book in the editing process) (on file with author).


4.

5.

6.

7.

8.

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account personal situations and utilizing more personal subsidies instead of brick and mortar aid. The complicated legal framework explained before should be managed by intensifying cooperative mechanisms throughout the three political levels, all of which have some powers regarding land use and housing. Even the national level has a role to play here, thanks to its taxation and spending powers, as well as the possibilities of regulating the rental sector and property rights across Spain. New regional legislation includes modern principles to guide local discretionary decisions. This is the case for sustainable development, which incorporates the idea of social cohesion. To achieve this objective, laws are promoting social mixture using compulsory ratios of social housing in new developments and urban renewals and more complex urban designs, including the combination of different uses to avoid homogeneity and social segregation in urban areas. Judicial review will probably play an essential role in controlling real sustainable development through the review of procedural aspects and the real fulfillment of the duty of giving rational and balanced reasons for local public choices. However, all the legal measures will not be enough to address the Spanish problems of affordable housing, urban segregation, and ghettos if public investment remains below the European average standard. Moreover, if the constitutional responsibility of providing affordable housing is not assumed directly by public authorities, instead of by delegation to the private sector, the provision of an authentic public service with proper standards of quantity and quality will not be realized. Land management has been complex and slow in Spain. Currently some regional laws are trying to make it easier and faster by means of new regulations promoting professional developers. The consequences of legal changes and their impact on affordable housing are still unknown. There is a lack of a consistent metropolitan approach to urban problems, as well as a lack of historical tradition of regional planning. It makes it difficult to face global problems affecting several municipalities. We have to take into account that there are around 8,000 municipalities in Spain. It seems there is an unavoidable need to restructure the local level to achieve more rationality and effectiveness.

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9. Although the Spanish case has several specific characteristics (e.g., the lack of a strong public rental sector), the problems and solutions are similar to other European countries. Therefore, social exclusion, urban segregation, and the role of affordable housing are relevant issues in our globalized world. The exchange of experiences and the reflections about the role of law will be of great importance in furtherance of more equitable societies.