Case Study Land & Urbanism Attorney Cluj: Objectives Achieved
Changing the functional classification (UTR) of a parcel located in Cluj-Napoca, in the Pepiniera Becaș area.
Restoring the former classification that existed prior to the adoption of the new PUG, namely the change from UTR – Uva (green zone – squares, gardens, parks with unlimited public access) to UTR – CB5 (International Conferences & Exhibitions Center).
Relevance of the Case
This matter opens the possibility for owners disadvantaged by new urbanistic provisions to challenge in court the functional classification under the new PUG. However, the situation is particular in that the court holds the new classification has the effect of a de facto expropriation due to the absence of a concrete plan and a defined timeframe in which compensation would occur for the projected “Parcul Est” on the plaintiffs’ land.
Case Presentation: Change of Functional Classification – UTR of the Land
The plaintiffs are owners of a parcel of land in the Pepiniera Becaș area, which under the old general urban plan of Cluj-Napoca was functionally classified as UTR – CB5 “International Conferences & Exhibitions Center.”
By Local Council Decision No. 493/2014 approving the new PUG, the plaintiffs’ parcels were reclassified as UTR – Uva (green zones – public squares, gardens, parks).
According to the urbanism rules applicable to UTR Uva, changes of the land’s destination are forbidden; this zone classification is of a definitive character and cannot be changed through PUZ.
In the present case, the public authority had shown interest in developing on the disputed parcels the “Parcul Est” — a substantial green area project.
First Instance Decision
In first instance, the Cluj Tribunal dismissed the plaintiffs’ claim, reasoning that there were no legal grounds to challenge Local Council Decision 493/2014 which adopted the new PUG and thereby modified the functional regime of the parcels.
As no illegal administrative act was found, the Tribunal also dismissed the compensation claim seeking reparation for loss of land value.
The Tribunal held that the local authority acted within its powers under Law 350/2001; the power to define building regulations is a sovereign right of the authority, responsible for managing the city’s development in line with public interest and sustainable development principles.
The court considered that plaintiffs cannot be compelled to open public access on their property, and because the authority had shown intention to buy or expropriate, the decision to designate the land as green zone fell within the discretion of local authority and is not subject to judicial review.
Additionally, because the property had been categorized as “arable” land, the Tribunal found provisions of Art. 57 of Law 350/2001 (which restrict declaring private land “green zones” unless expropriation is done) cannot apply.
Enforceable Provisions After Appeal
The plaintiffs, assisted by attorneys specialized in real estate and urbanism litigation, appealed to the Cluj Court of Appeal.
The Court of Appeal considered the appeal well founded, and on a new hearing ordered the return to the prior functional classification (existing before the new PUG), i.e. change from UTR – Uva back to UTR – CB5.
The appellate court noted that the prerogative of the local council under Law 350/2001 cannot be exercised in a manner that leads to abuse of right or violation of citizens’ rights.
It stated that the strategy of developing sustainably by adding green spaces (Parcul Est) is consistent with public authority’s prerogative to develop the plan, but because at acquisition the parcels were not under such restrictive regime, applying the new classification imposes a serious limitation on private property rights.
Thus, in absence of guarantees from the authority that the park investment would be completed within a reasonable time and that the affected owners would be properly compensated, the change of classification amounted to a de facto expropriation without prior and fair compensation, violating constitutional provisions and Article 1 of Protocol 1 of the ECHR.
The appellate court annulled part of Local Council Decision 493/2014 and held that restoring balance between private interest and public interest in this case requires returning the plaintiffs to the prior classification UTR – CB5.