Case Study — Annulment of Administrative Act in Real Estate Matters
Admission of the lawsuit and obliging Cluj-Napoca Local Council to adopt a resolution modifying partially HCL No. 493/2014 (approving the “Update General Urban Plan of Cluj-Napoca”) such that a 4,700 sqm intravilan land is included in UTR-Liu, as well as partial annulment of HCL 493/2014 with respect to the functional classification in UTR-ULiu of a 3,400 sqm intravilan land, and also obliging the defendant (the City Council) to adopt a resolution including this land in UTR-Liu.
Factual Situation
The plaintiff owns two contiguous parcels, located in the intravilan of Cluj-Napoca, with areas of 4,700 sqm and 3,400 sqm, located in the same zone. By Local Council Decision (HCL) No. 493/2014, both lands were functionally classified in UTR-ULiu. This classification substantially restricted the exercise of property rights by excessive limitation of the owner’s prerogatives.
Against that administrative act, the owner filed a prior complaint under the Administrative Litigation Law No. 554/2004. The local authority partially granted it in the sense that only the 4,700 sqm parcel’s classification was changed to UTR-Liu. The local authority justified refusal regarding the 3,400 sqm parcel by stating that construction there may be achieved only once the zone is urbanized via a PUZ.
Because the zone was not fully urbanized, with inadequate street network, highly varied plot sizes, and lack of public utilities, the local authority refused to reclassify the smaller parcel — though both plots are situated on the same street, both possessing characteristics suitable for UTR-Liu classification.
As a result of the partial acceptance of the prior complaint, the Local Council issued a decision modifying PUG documentation and partially revoking HCL 493/2014, converting the 4,700 sqm parcel from UTR-ULiu to UTR-Liu.
However, by a Cluj Tribunal decision, ultimately upheld on appeal, the court annulled that resolution of the City Council because it had been adopted unlawfully — specifically, without obtaining the mandatory approval (aviz) from the Chief Architect of Cluj County.
After annulment of HCL 34/2016, the Local Council did not issue a new decision to reflect the favorable outcome of the prior complaint; the plaintiff was therefore forced to pursue enforcement via court litigation of his rights.
The Court Action
Via action filed at the Cluj Tribunal, the plaintiff sought that the court order adoption of a new resolution modifying HCL 493/2014 to include the 4,700 sqm land parcel in UTR-Liu. The plaintiff also requested partial annulment of HCL 493/2014 with respect to the 3,400 sqm parcel’s UTR-ULiu classification, and consequently obliging the City Council to adopt a decision excluding that parcel from UTR-ULiu and including it in UTR-Liu.
In the course of the trial, based on evidence and a judicial expertise, it was shown that the 3,400 sqm parcel is located adjacent to lands already included in UTR-Liu, that the zone is not purely agricultural or unbuildable, but a zone in the course of urbanization (a process that began before 1990). Furthermore, the expert established that the surrounding zone has a residential character: single-family homes, low building heights, and similar urban utility features.
The court noted that there was no transparent or clear reasoning explaining the delineation between UTR-ULiu and UTR-Liu in that area, nor consistent criteria by which two adjacent parcels with similar infrastructure should be classified differently. That led the court to conclude the local authority violated the principle of legality and also relevant jurisprudence (including from the European Court of Human Rights in the Arsenovici vs. Romania case).
By classifying the disputed parcel as UTR-ULiu, the owner was left in a state of uncertainty and burdened with an obligation to create a PUZ in order to exercise his property rights.
Therefore, the Cluj Tribunal admitted the plaintiff’s claim, ordering the Local Council to adopt a resolution modifying HCL 493/2014 to include the 4,700 sqm parcel in UTR-Liu, annulled HCL 493/2014 partially as regards the 3,400 sqm parcel’s UTR-ULiu classification, and obliged the Council to adopt a resolution excluding that parcel from ULiu and including it in Liu. The Council appealed, but the appeal was rejected, and the first instance judgment became final.