CASE RELEVANCE
An unjustified refusal to address a request is expressly regulated by the provisions of Law No. 554/2004 on administrative litigation as the explicit expression, with abuse of power, of the will not to resolve a person’s request. The same law provides that the failure of a public administrative authority to execute an administrative act issued following a favorable decision or, as applicable, a prior complaint is also assimilated to an unjustified refusal.
The public authority’s refusal does not exclusively take the form of an explicit statement not to resolve a request, but may also manifest in apparently legal conduct, such as abstaining from voting.
In such cases, it is necessary to analyze whether the public authority’s action constitutes an abuse of power when entrusted by an individual to resolve the request, and to solicit the intervention of the judicial court to remove the obstacle represented by the implicit refusal of the authority.
SUMMARY OF FACTUAL SITUATION AND THE PLAINTIFF’S ARGUMENT BEFORE THE TRIAL COURT
By the lawsuit filed against the Local Council and the Municipality, the plaintiff requested that the Local Council be obliged to approve the draft decision for approving a Zonal Urbanistic Plan (PUZ) to build three collective residential blocks (Ground + 2 Floors), fence, and exterior arrangements.
In the alternative (subsidiary claim), the plaintiff requested that the defendant be obliged to cast a motivated vote regarding the draft decision.
In the statement of claim, the plaintiff indicated that he and his wife are owners of the subject land and desire to initiate an investment project. The plaintiff requested and obtained an urbanism certificate in order to prepare the PUZ documentation. In that certificate it was stated that the land can be used for the requested purpose, including all necessary approvals, consents, and studies required for approval of the Zonal Urbanistic Plan.
Given the certificate’s provisions, the plaintiff prepared the documentation and obtained all the required approvals, consents, and studies imposed by the certificate.
At a meeting of the Local Council, several citizens expressed disagreement with the project, arguing that the proposed PUZ would create conditions for blocks to be built inside a neighborhood of houses, that the density in the area would increase (including traffic impacts), and that the existing sewage network would not be able to handle such an investment.
In these circumstances, of the 18 local councilors present (out of 19 total), all 18 abstained from voting, and the project was rejected on that basis.
Considering that the way in which the councilors expressed their vote (abstaining unjustifiably) is illegal, the plaintiff filed a complaint asking for a finding of unjustified refusal, and consequently that the project be placed back on the agenda at the next session of the Local Council.
Thus, the project was again submitted to vote; this time, dissatisfied citizens were present again. Similarly, the project was rejected: of 17 present councilors, 7 voted in favor, the remaining 10 abstained.
Given the unjustified abstention of the councilors, the plaintiff filed another complaint requesting again that the unjustified nature of the abstentions be ascertained at that session and that the project be placed on the agenda of the next ordinary session of the Local Council.
At the plaintiff’s request, the draft was again placed on the agenda of a Local Council session. This time, considering the proposal to use secret ballot procedure, the project was rejected with 9 votes in favor, 3 against, and 7 abstentions, all 19 councilors being present.
The plaintiff requested from the Technical Commission for Territorial Planning and Urbanism of the Municipality a written position with respect to the refusal by the Local Council to adopt the decision approving the documentation that was rejected. In the address received, the plaintiff was not given a clarifying answer, but only the minutes of the Council session were annexed, suggesting that he should derive any clarity from those.
The plaintiff argued that the councilors’ refusal to exercise their voting right is abusive. This is all the more so given that the plaintiff repeatedly showed that objections by dissatisfied citizens are unfounded.
By their answer (defense), the Local Council asked for dismissal of the action as groundless, without developing specific criticisms to underpin the rejection of the initial request. They merely stated that the plaintiff’s claims are unfounded.
TRIAL COURT DECISION
By the judgment rendered in the matter, the trial court partially granted the suit, ordering the Local Council to examine the urban documentation for issuing the PUZ prepared by the plaintiff, and to issue a motivated decision in this respect.
To reach this solution, the trial court found that even though the plaintiff’s project had been submitted several times to the Local Council, no decision was issued—yet the project was considered rejected because local councilors chose to abstain, despite that under the provisions of Law No. 350/2001, the Local Council has the obligation to issue a decision approving or rejecting the territorial planning or urbanism documentation.
Even if abstaining is a manner of expressing a vote, the court found that in the way local councilors abstained, they did not fulfill their obligation imposed by Law No. 350/2001, namely they did not respect the principles governing public administration and omitted to assume a decision regarding the plaintiff’s request.
The court held that while the deliberative body will consider legality and opportunity issues when deciding whether to adopt a PUZ documentation, all these considerations must be laid out in a motivated decision, whether in favor or against the request.
In order for the legality and solidity of the decision to be verifiable, it is essential that the Local Council issue a motivated resolution, otherwise neither the plaintiff nor the court knows the reasons that led to rejection of the project, in order to analyze whether the rejection is justified, whether the documentation was incomplete, or whether opportunistic reasons have justified the solution.
Finally, the court found that there had been generalized abstention by local councilors—not only during a single meeting, but repeatedly. Up to the date of the trial court’s ruling, four sessions had taken place: 30.01.2020 – all 18 councilors present abstained; 27.02.2020 – 10 out of 17 present abstained; 28.05.2020 – out of 19 present, 9 in favor, 3 against, 7 abstained; this totals 10 votes against, so solution was likewise rejection—but no decision was formally issued in this respect, therefore the trial court ordered the Local Council to examine the urban documentation and issue a motivated decision.
SUPPORT OF THE CASE IN APPEAL
The plaintiff appealed the civil judgment, requesting primarily that part of the judgment be overturned so as to grant the main petitum of the action, namely obliging the Local Council to approve the draft decision approving the PUZ for the construction of three collective residential blocks D+P+2E fence and external arrangements; and alternatively, that the reasoning in the judgment be removed insofar as it considered opportunity as a basis for abstention and maintaining the rest of the solution, with legal costs.
The appellant plaintiff argued that in this case abstention from voting was used as a means of rejecting his request on the merits, not as a means of not deciding it.
For this reason, the trial court misapplied legal norms when it rejected the main request of obliging the Local Council to approve the PUZ, because in this situation, the plaintiff argues, the project was analyzed, debated, and recognized as compliant with applicable law. Therefore the request was analyzed and decided by way of rejection, masked as refusal to decide the request.
Specifically, generalized abstention by local councilors led to rejection on the merits of his request.
Further, the appellant plaintiff stated that whenever proposed urban documentation does not meet legal requirements they must be rejected; whenever such documentation meets legal provisions they must be approved. In the appellant’s view administrative discretion regarding opportunity of a project which meets all legal requirements must be considered illegal.
With respect to opposition expressed by some nearby residents, it must be observed that according to the law, the procedure for drafting and approving urban documentation requires public consultation, but does not condition approval on consent of neighbors, and even less on agreement by other residents whose disapproval is not based on legal grounds.
Local councilors are therefore not bound by public opposition, especially when the opposition expressed does not target potential legal defects in the proposed documentation.
The appellant plaintiff claims that abstaining from voting is not at the discretion of a member of the deliberative body. Even if provisions of the Administrative Code or applicable legislation do not limit the situations in which local councilors could abstain from voting, it may be observed that correlative provisions of the Administrative Code show that exercising the vote in the Local Council is an obligation of councilors (a duty), not just a right.
That is why abstention from voting without a justified reason such as a conflict of interest must be held excessive.
APPELLATE COURT DECISION
The Court of Appeal rejected all appeals filed against the civil judgment and fully upheld the decision of the trial court.
In order to reach this solution, the appellate court held that it is imperative to resolve the plaintiff’s claim by a Local Council resolution, a resolution which definitively establishes the solution for the request and fully clarifies the regime applicable to the submitted documentation.
Thus, in case of adopting a resolution approving it, the PUZ will apply to the territory it examines, while a resolution rejecting it establishes definitively that the requested exception cannot be granted. The court held that, if that resolution is not challenged in court, it remains final, and the request cannot be reiterated or further examined, there being a definitive solution.
Furthermore, the Appellate Court stated that in case a claim is brought in administrative litigation, that resolution must permit legal review of its legality by the court, through the real possibility to analyze the aspects considered in adopting the resolution of rejection. The same reasons indicated in the judgment allow the interested person to justify a lawsuit.
Additionally, in the view of the appellate court, the necessity of adopting a Local Council resolution ensures also the establishing of responsibility for adopting or rejecting a project, the responsibility specific to the capacity of local councilor and assumed by those who hold that office.
Local Council did not adopt a resolution rejecting the documentation submitted by the plaintiff as required by the relevant legal provisions. Failure to comply with these legal provisions allows repeated discussion of the same request, to which no definitive decision is given, as required by the legislature.
At the same time, the court held that the lack of such a resolution represents failure to fulfil the obligation to ensure strict control in the domain of applying urbanism regulations as established by the lawmaker, and also a failure to assume the decision adopted. According to these considerations, admitting the plaintiff’s request to oblige the Local Council to approve the draft decision approving the PUZ was not possible.
The court holds that in no case examination of the plaintiff’s request may be qualified as a Local Council resolution rejecting the submitted PUZ documentation. Such qualification would imply existence of at least five rejection resolutions, none of which were challenged by the plaintiff.
Thus, in the documents prepared after these meetings it was determined that with respect to the documentation submitted by the plaintiff no resolution approving it was adopted, without specifying that a resolution rejecting it was adopted, this conclusion being only inferred.
However, the appellate court mentions that, considering the deadlock in which the plaintiff’s request is found due to abstentions from vote, a deadlock of a nature to violate his right of access to justice, his economic interests and ultimately property rights on the basis of all legal texts analyzed, legally the trial court ordered the Local Council to issue a motivated resolution by which to resolve the plaintiff’s request.
Finally, the appellate court states that the obligation placed on the Local Council is not impossible to fulfil, but is an obligation explicitly provided by the legislature to adopt a resolution approving or rejecting the PUZ. Practically, the respondents must adapt their usual procedures to fulfil this legal obligation. The court did not oblige the Local Council to issue a resolution of approval, but to issue the resolution required by the provisions of Law No. 350/2001.