Case study – urbanism lawyer Cluj, abuse of power by the local authority
The partial annulment by civil courts in Cluj-Napoca of Local Council Decision no. 493/2014 approving the municipal PUG documentation of Cluj-Napoca, regarding the assignment of certain properties into particular UTRs (Territorial Reference Units), as well as the ordering of the defendant, the Local Council of Cluj-Napoca, to reassign those properties from UTR Le and UM3 into UTR ULi/c or UTR Lic, because the initial assignment into UTR was made through an abuse of power by the public authority.
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Presentation of the case
In fact, the claimants are owners of properties on which individual dwellings had been built, in a zone regulated by the PUZ “Bună Ziua Nord,” approved through Local Council Decision no. 642/2000, and by the PUD approved through Local Council Decision no. 103/2004.
According to the PUD, the technical regime of the area was designated for individual and small collective housing; the maximum land occupation (POT) = 35%, floor area ratio (CUT) + 0.9, with a maximum building height of P + 2E (10 m at the cornice).
In 2007, although the respective area was already shaped in the sense that only individual housing existed, in the immediate vicinity two apartment blocks began to be built under building permits issued based on Local Council Decision no. 606/2005 approving a PUD for collective housing, with height regime D + P + 2E + M.
Subsequently, this Council Decision was annulled by the courts in Cluj as illegal.
In this respect, it was held that although the height regime and maximum POT established for UTR L3c (in which the PUD is located) were not exceeded, the approval of the 2005 PUD introduced a different use for the buildings — namely apartment blocks with 16 units per level, with height regime higher than the immediately adjacent buildings by more than two levels.
Additionally, the volumetry changed compared to existing properties in the area; the street network was further burdened, the access for the new owners had to be ensured, and the apartments had to be connected to utilities — thereby violating Articles 31 and 32 of the General Urbanism Regulation approved by Government Decision no. 525/1996.
Nevertheless, through Local Council Decision no. 493/2014 modifying the PUG, the local authorities in Cluj-Napoca revised the criteria necessary for construction in the area: namely, the new maximum allowed cornice height was 18 m and a height regime of (1-3S)+P+4+1R for common buildings, and for corner buildings a maximum cornice height not to exceed 24 m, i.e. a height regime of (1-3S)+P+4.
Therefore, through the 2014 PUG modification, the local authority allowed construction of much taller buildings than those existing in the area — in a neighborhood largely composed of single-family houses — thereby altering volumetry relative to adjacent buildings, and violating Article 32 of the RGU.
Approach to the urbanism issue
As a result of this Local Council Decision by which the blocks being built actually complied with the new urban requirements introduced by the 2014 PUG amendment, although at that time there already existed a final court ruling which found them built illegally, the claimants, assisted by real estate and urbanism lawyers, initiated a new legal action requesting the partial annulment of Local Council Decision no. 493/2014.
In its defense, the public authority defendant contended that the claimants had not invoked any harm justifying the filing of a lawsuit, and that the claimants’ property rights had not been prejudiced.
These arguments were dismissed through the defenses submitted by urbanism lawyers (and adopted by the court), which found that harm did exist and was invoked by the claimants, consisting in the limitation of access to their own homes due to increased traffic and road congestion during peak hours caused by the new constructions, as well as reduction in parking space in the area.
Court Ruling
The court ruled in favor of the claimants, partially annulling Local Council Decision no. 493/2014 and modifying the assignment of the disputed properties into a Territorial Reference Unit consistent with the character of the area.
Against this decision of the Cluj Tribunal, the local authority filed an appeal, arguing that the tribunal’s decision was unlawful because it censored the discretionary judgment (opportunity) of issuing an administrative act in urbanism matters, a prerogative which belongs exclusively to the public authority.
Following the arguments made by urbanism lawyers, the Cluj Court of Appeal rejected the appeal and held that the local authority adopted the 2014 PUG decision in breach of the res judicata effect (authority of prior final court rulings).
Accordingly, in this instance, it is not a matter of contesting the opportunity of issuing the administrative act, but a question of its illegality.
Thus, the court found that Local Council Decision no. 493/2014 was adopted by the Local Council of Cluj-Napoca by abuse of power, thereby infringing citizens’ rights and freedoms via this administrative act adopted in disregard of a definitive court ruling.
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