Case Study Real Estate & Urbanism Attorney Cluj: Objectives Achieved
The establishment of a public utility easement directly through the General Urban Plan (PUG), without carrying out the expropriation procedure with just and prior compensation, and the related prohibition to build violate Article 44 of the Constitution which enshrines respect for the right to private property.
Under these conditions, the court annulled the illegal provisions and obliged the Mayor to issue the building permit.
Presentation of the Case
Claimants X and Y, owners of a plot of land in Cluj-Napoca, Antonio Gaudi Street, requested in 2015 from the Mayor of Cluj-Napoca the issuance of a building permit based on the urbanism certificate and the specific documentation previously obtained.
The Urbanism Department communicated to the claimants that the property is burdened by a public utility easement according to the new PUG, and under Article 25 of the Local Urbanism Regulation (RLU) associated with the new PUG they have the obligation to transfer into public ownership the land area burdened by the easement before the issuance of the building permit. Similarly, the Technical Department – Urban Traffic Safety Service informed that to authorize constructions it is required to “withdraw” the property boundary so as to ensure the street Antonio Gaudi a width of 16 m as provided in the new PUG.
After going unsuccessfully through the prior administrative procedure, the claimants, assisted by an attorney specialized in urbanism and constructions, addressed the Cluj Tribunal to obtain obliging the Mayor to issue the building permit.
Case Study on Obtaining the Building Permit: Conclusions in First Instance
The court considered that instituting a public utility easement on the claimants’ land, without their agreement, without an expropriation decision and without just and prior compensation represents an abuse by the defendants.
The court held that instituting the public utility easement via PUG and Article 25 of the RLU seriously violates the private property right, a fundamental right guaranteed by Article 44 of the Romanian Constitution and Article 1 of Protocol 1 of the European Convention on Human Rights.
Drawing on the maps of the PUG of the route of a future public road and the related prohibition to build on the claimants’ land violate private property, and the procedure for instituting public utility was conducted without compliance with the provisions of Law no. 33/1934 regarding expropriation for public utility.
For these reasons, the court of first instance admitted the claim of the claimants assisted by an urbanism attorney, and ordered partial annulment of Local Council Decision (HCL) no. 493/22.12.2014 by which the Update General Urban Plan (PUG) of Cluj-Napoca municipality was approved, in the sense of:
- modifying the documentation related to the PUG of Cluj-Napoca with respect to the land area owned by the claimants, by removing from the PUG documentation the mention of existence of a public utility easement;
- removing from the Local Urbanism Regulation associated to the updated PUG of Cluj-Napoca, Article 25 paragraphs 1, 3 and 4 and Article 27 paragraph 4;
- partially annulling HCL no. 118/1.04.2015 through which the Local Urbanism Regulation was modified;
- obliging the Mayor of Cluj-Napoca to issue the building permit for two single-family houses and fencing.
Appeal and Final Conclusions
The Local Council of Cluj-Napoca and the Mayor, represented by Mayor Emil Boc, appealed the first-instance ruling.
The Cluj Court of Appeal rejected the appeal and upheld entirely the decision of Cluj Tribunal.
The appellate judges added arguments to establish the illegal character of the provisions annulled and to show the abuse of local authorities. The Court of Appeal noted that neither the Civil Code nor any other normative act requires a limitation of the private property right in a situation where the public authority intends to widen an existing street by extending it.
In this case, besides the urban planning regulation itself and as its premise, a legal regime for the claimants’ land was established that is contrary to civil law and by which the right of property is affected by restricting the material and implicitly the legal ability to dispose of one’s property, through instituting a right of passage for the area designated for street widening in favor of the public.
The court reiterates that in this case no expropriation procedure was initiated and no public utility was declared. Thus, it is not possible after a considerable period of time to carry out expropriation procedure.
Both Law 33/1994 and Law 255/2010 regulate these two aspects simultaneously; updating or modifying urbanism documents is carried out as a stage within the general procedure of expropriation.
In the given case, the public authorities exceeded the attribute of opportunity in issuing the administrative act because the authority of discretion was exercised in violation of the rights and freedoms of citizens. Partial annulment of PUG does not mean that the court modified or intervened in public authority’s urban vision; they retain the freedom to express it, provided they respect the right to private property.