Case Study — Urbanism Attorney Cluj: Obtaining the Building Permit by Judicial Means Based on the Principle of Automatic Extension of the Validity of Urbanism Documents from the Time the Urbanism Certificate Was Issued Until Completion of the Investment
Achieved Objectives:
BRISC LEGAL assisted two clients in obtaining their building permits through judicial action, relying on the principle that the validity of urban planning documents is automatically extended from the moment the urbanism certificate is issued until completion of the investment.
In both cases, the Cluj Tribunal nullified in first instance Article 3 of Local Council Decision No. 493/2014 approving the new PUG, and Article 1 of Local Council Decision No. 118/2015 regarding modification of Articles 31 paragraphs 4 and 5 of the RLU associated with the PUG. The court found an unjustified refusal by the Mayor to issue the permit and obliged the Mayor of Cluj to issue it.
CASE I — Obtaining the Building Permit by Court for a Four-Unit Residential Building on Remenyik Şandor Street, Cluj-Napoca
Under Article 3 of HCL No. 493/2014 approving the new PUG, it was stipulated that the validity period of previously approved urbanism studies would be 18 months from the date the new PUG was approved, during which period the complete permit documentation must be submitted according to the rules for issuing building permits.
The claimant was granted an urbanism certificate valid for 12 months for a plot on Remenyik Şandor, dated 23 May 2016, based on a PUZ approved in 2004 and modified in 2008, about one month before that PUZ would expire under Article 3 of HCL 493/2014.
The request for issuance of the building permit was submitted on 11 April 2017, but the Mayor refused to issue it, arguing that the PUZ underlying the urbanism certificate expired on 22 June 2016 (per Article 3 of HCL 493/2014), even though the urbanism certificate itself was still valid.
Assisted by BRISC LEGAL (Cluj attorneys specialized in land, real estate, urbanism), the claimant sought annulment of Article 3 of HCL 493/2014, arguing it derogates from the provisions of Article 56 of Law 350/2001 and violates the principle of the hierarchy of norms, and requested that the Mayor be obliged to issue the building permit, as there was no other lawful basis for refusal.
Supporting the Lawsuit
In support, it was argued that Article 3 of the HCL introduces local regulations exceeding the rules in Article 56 paragraph 5 of Law 350/2001, under which:
“The validity of territorial planning and urbanism documents is automatically extended for investments begun during that validity period until their completion.”
Because paragraph 5 explicitly provides for the extension by law (de droit) of validity for investments initiated during the valid period, the local council cannot legitimately set a terminating deadline for those documents without exceeding its powers and impinging on citizens’ rights.
Once the urbanism certificate is issued, the authorization and investment process begins. Therefore, the planning documents in force at the moment of issuing the certificate remain valid by right until completion of the construction.
Article 3 of HCL excludes the possibility that an urbanism document may extend its validity beyond 22 June 2016, even for investments for which the urbanism certificate was issued while the document was still valid. This illegal limitation is reiterated in Article 31 of the RLU in its modified form by HCL 118/2015. Provisions in paragraphs 42 and 53 of Article 31 in the amended RLU are also illegal.
Conditions Under Which the Validity of the Urbanism Documents Is Extended
In attempting to extend applicability of the new PUG by limiting applicability of prior planning documents in time, the drafters of HCL 493/2014 deviated from the mandatory provisions of Law 350/2001 requiring that planning documentation validity be extended by law for investments begun. The rationale is to protect citizens against arbitrary changes in local planning rules.
The authority did not claim any irregularity in the planning document supporting the claimant’s request. Although the claimant undertook all necessary diligences and submitted all acts requested in the certificate, the refusal to issue the building permit was based on Article 3 of HCL 493/2014 and Article 1 of HCL 118/2015 modifying Article 31 paragraphs 4 and 5 of the RLU.
Because those invoked provisions are illegal and it was found that the claimant’s request for annulment is well-founded, there is no legal ground justifying refusal to issue the permit.
The Cluj Tribunal accepted all the arguments advanced by BRISC LEGAL (Cluj attorneys in constructions and land matters) and upheld the claimant’s request as filed, recognizing the illegality of Article 3 of HCL 493/2014 and the Mayor’s unjustified refusal to issue the permit.
CASE II — Obtaining the Building Permit by Court for a Two-Unit Building on Poieniței Street, Cluj-Napoca
In a similar situation, where the claimant’s request for building permit was refused under the same Article 3 of HCL 493/2014, the Cluj Tribunal issued an identical decision, holding those provisions illegal, the refusal unjustified, and obliged the Mayor to issue the permit.
The claimant was again assisted by BRISC LEGAL (Cluj real estate, urbanism, and construction lawyers).
Besides the arguments applied above, the court held that although Article 56 paragraph 4 of Law 350/2001 gives local public authorities the competence to set the validity period of planning documents, the chronology and systematic and teleological interpretation establishes paragraph 5 (extension by law) as a special text relative to paragraph 4.
In this case, although the certificate was valid for 12 months, it would have only been valid from 05 May 2016 until 22 June 2016 (about 45 calendar days) under the interpretation invoked by authority—this would reduce a 12-month validity unacceptably. Such a result would conflict with Article 31 paragraph 8 of the RLU.