Admission of the statement of claim and partial annulment of Local Council Decision (HCL) no. 493/2014 adopted by the Cluj-Napoca Local Council, with respect to the establishment of a public utility easement burdening the claimants’ lands, and compelling the Mayor to reexamine the technical documentation underlying the building permit request, which was initially denied by the local authority, without considering the public utility easement burdening the property designated as a road belonging to one of the claimants.
Summary of Factual Background
In fact, the claimants are owners of certain lands located within the urban area of the City of Cluj-Napoca. From the relevant zoning certificates it emerged that those properties were encumbered by public utility easements, under Article 25 of the Local Urbanism Regulation (RLU), as amended by Local Council Decision no. 737/2017. For this reason, one of the claimants had his request for issuance of a building permit on the subject land refused.
By Local Council Decision no. 493/2014, the documentation “Update of the General Urban Plan (PUG) of the City of Cluj-Napoca” and the Local Urbanism Regulation (RLU) with a validity of 10 years were approved, stipulating that certain land areas are designated as public utility easements — including portions of the lands belonging to the claimants.
In order to protect their legitimate interests, the owners of those lands, assisted and represented by lawyers specialized in real estate law and urbanism, turned to the courts in dispute with the Local Council and the Mayor of Cluj-Napoca, and requested the partial annulment of the administrative acts that limited their rights.
Court’s Solution
Hearing the case at first instance, the Cluj Tribunal held that although Article 46, paragraph 2, letter d of Law no. 350/2001 authorizes the defendants to draft the General Urban Plan (PUG) including delimitation of zones affected by public easements, those easements can only be those provided under general law, namely the Civil Code.
That statute does not regulate any gratuitous easement in favor of the local authority, not even in the context of expanding public transport networks or widening existing streets.
Thus, the tribunal found that in the absence of a legal provision regulating a limitation of private property rights for the development of the transportation network, the contested provisions of the PUG and corresponding RLU effectively amounted to a de facto expropriation of privately owned lands, without respecting the provisions of Law no. 255/2010.
The first instance decision favored the claimants, finding that by the way the urban regime was regulated, a limitation of private property rights was instituted without a legal basis. Therefore, the tribunal partially annulled Local Council Decision no. 493/2014 regarding the public utility easement burdening the property destined for road use. Moreover, considering that Article 25 of the RLU as amended by HCL 737/2017 had already been annulled by other final court decisions, the court held that the initial impediment invoked by the local authority for rejecting the claimant’s permit request no longer existed, and ordered the Mayor of Cluj-Napoca to issue the building permit.
Against that ruling, the defendant, the Local Council of Cluj-Napoca, filed an appeal. In adjudicating the appeal, the Cluj Court of Appeal partially modified the trial court’s judgment and ordered only that the local authority reanalyze the technical documentation underlying the building permit request, because the refusal decision had been based on a reason which led the City Hall to not reconsider the legality on the merits of the application.
In any case, as a result of the judicial elimination of that ground for refusal, in implementing the court’s decision, the Mayor of Cluj-Napoca issued the building permit.