Relevance of the Case
Law 554/2004 on administrative litigation gives any person who considers themselves harmed by an administrative act issued by a public authority the possibility to go to the competent court for annulment of the act and remediation of the harm caused.
The same normative act defines “abuse of power” as the exercise of discretionary power by public authorities by violating the limits of the competence provided by law or by violating the rights and freedoms of citizens.
In view of the above, in some situations the normative acts of state authorities establishing urban planning regimes for certain zones affect citizens’ property rights. Thus, there are cases where parcels are wrongly classified in reference territorial units that contain construction rules incompatible with the historical and factual situation of those parcels.
Such classification errors materialize abuse of power by the public authority, based usually either on omission, at the time of drafting urban planning documents, to take into account the factual reality of the land, or exercising the urban planning discretion of the authority in violation of subjective rights or legitimate private interests.
Factual Situation
In fact, the claimant was owner of a property – land located in the municipality of Cluj-Napoca, on Calea Turzii Street. Under Cluj-Napoca’s 1999 General Urban Plan (PUG), the claimant’s land was classified partially as UTR CM3 and partially as UTR V5, a mixed-use zone in which construction of dwellings was permitted.
Under those conditions, a building permit was issued in accordance with PUG 1999 for construction works of a single-family home, fencing, and exterior arrangements.
Through the new Regulation / Plan related to PUG adopted in 2014 and which came into force in 2016 by Local Council Decision No. 493/22.12.2014, the functional classification UTR CM was changed (under the new regulation it no longer exists) and the parcel was included in UTR Ec = Urbanization Zone – Economic Activity Zone of commercial type — in detail for big-box units, mall, showroom, etc. Given the character of this zone, under the new classification new housing of any type is no longer permitted.
Thus, the claimant filed a request for a building-zone certificate for construction works, indicating that she wishes to build a structure in the back of the property, considering that the new PUG will not prevent construction of that structure, given the existing factual situation. However, a building-zone certificate was not issued for the requested purpose; only an informative certificate was issued.
Considering herself harmed by this decision of the public authority, the claimant filed a prior administrative complaint under the procedure provided by Law 554/2004, which was rejected by the local authority.
ARGUMENTS BEFORE THE COURT OF FIRST INSTANCE. CLUJ TRIBUNAL JUDGMENT
Through the lawsuit filed, the claimant requested partial annulment of Local Council Decision No. 493/2014 by which the urban plan update of Cluj-Napoca and its related Urbanism Regulation were approved, as regards the functional classification of the parcel, and obliging the Local Council of Cluj-Napoca to take the necessary steps so that the parcel is classified in a territorial reference unit that permits the construction of single-family homes without the urbanization procedure.
In this sense, the Brisc Legal attorneys specializing in urbanism litigation showed that at the moment of the changes made, no account was taken of the factual reality on the ground, meaning that the authors of the Cluj-Napoca PUG failed to consider that the family house authorized under PUG 1999 was already built. Moreover, the defendant authority could not substantiate the reason for the change made with respect to the parcel’s building regime.
Secondly, it was emphasized that the classification of this area in UTR-UEC does not comply with the definition of a territorial reference unit under Law 350/2001. This is an urban subdivision characterized by functional and morphological homogeneity from an urban and architectural point of view.
In support of this idea, we referred to the fact that the land and constructions in such a subdivision must have uses of the same nature and a similar legal regime, which is not the case given the changes mentioned earlier. Thus, in that sub-zone, which overall is one of houses, the claimant was now being prevented from building anything except large commercial structures like a mall or showroom — constructions far larger than those already present on her parcel.
Clearly these new functions were not compatible with the constructions already existing on the parcel.
As conclusion, we argued before the court of first instance that inclusion of the parcel in UTR-UEC was done arbitrarily, without regard for the specifics of the respective zone, and results in a blatant violation of the claimant’s property right.
The Cluj Tribunal’s judgment was favorable: it admitted the claim, partially annulled Council Decision No. 493/2014, and ordered the defendant Local Council of Cluj-Napoca to classify the parcel in a UTR which permits the construction of a single-family dwelling.
The first-instance court aligned with the arguments made by the Brisc Legal team specialized in special urbanism litigation, considering that the change in building rules injures the claimant’s property right and consequently justifies restoring her to the previous situation.
In its reasoning, it is stated that it was imperative to provide justification for the decision changing the parcel’s urban classification, in order to justify the opportunity of such a change; otherwise the authority’s discretion regarding urban development of the city is exercised with abuse of power.
APPEAL FILED BY THE DEFENDANT. DECISION OF THE COURT OF CONTROL JUDICIAL
The appeal filed by the Local Council of the municipality of Cluj-Napoca was based in law on Article 488 paragraph (1) point 8 of the Civil Procedure Code, invoking that the first-instance judgment was issued with misapplication of the material law norms applicable in the case.
Primarily, the authority invoked criticisms that it considers that the right to build is not an inherent right of property ownership, so the aspects concerning classification of the land do not concern legality but are a matter of administrative convenience for the public authority, which could only be reviewed by a court within the limits expressly provided by the administrative litigation law.
In refutation of these claims, the Brisc Legal attorneys emphasized the abuse of power with which the public authority acted, in view of the extensive arguments developed in the first instance. Also, several considerations previously expressed by the Supreme Court on this issue were invoked.
In summary, we made clear that the discretionary power existing in the field of urbanism by public authorities cannot be exercised in an abusive manner, and that the power to review such deviations belongs to the courts, which have the purpose of maintaining a balance between public interest and private legitimate interests.
The appeal filed was dismissed; the Court of Appeal Cluj found, in view of the parcel’s specifics, that the authority exceeded the limits of discretion. Since the area was a mixed zone and recent constructions had been made, the limitation of residential character in the area, introduced by the new PUG, had to be properly and thoroughly motivated, with presentation of how the new urban vision would be concretely applied.
Otherwise, there is an overreach of the reasonable limits of discretionary authority, entering the realm of abuse of power, citable by court. Also, the arguments presented by the respondent authority that the justification regarding pollution produced in the area as a basis for regulation change is irrelevant, so long as people already live there.
The goal of protecting the public by forbidding residential construction no longer can be achieved once people already live on the parcel in question.