By Local Council Decision No. 493/2014 the documentation “Update of the General Urban Plan of the Municipality of Cluj-Napoca” and the corresponding Local Urbanism Regulation (henceforth “PUG” and “RLU”) were approved.
Subsequent to HCL No. 493/2014, other decisions were adopted that modified parts of the urbanism documentation. These considerations address three hypotheses of illegality in the local normative regulations adopted in connection with the PUG of Cluj.
Illegality Found in the Regulations Concerning Public Utility Works — Violation of Private Property Right Through the RLU
Article 25 of the RLU related to the PUG, relating to public utility works, had the following content until the adoption of HCL No. 737/2017:
- Authorization for execution of other constructions on lands that have been reserved in territorial planning or in the General Urban Plan for implementation of public utility works is prohibited. Public utility works are understood as those works defined under Article 6 of Law 33/1994.
- Authorization for execution of public utility works is to be made based on urbanism or territorial planning documentation approved in accordance with law.
- Roads and access ways shown as such in the urbanism documentation will be opened to traffic and public access regardless of property regime, being burdened by a public servitude.
- Areas of land burdened by public utility servitudes under approved urbanism documentation are to be transferred into public ownership before issuance of the Building Permit.
- Only those areas which simultaneously meet the requirements of being in private ownership and are expressly provided as such in Zonal Urban Plans may be considered roads or private access ways.
- For existing buildings burdened by a public utility servitude, prior to the full application of the servitude, works not increasing volume (e.g. interior modifications, changes of use, temporary installations) may be authorized.
The Cluj Court of Appeal Decision No. 1492/2017 upheld in full the Cluj Tribunal’s Sentence No. 3504/2016, via which the court ordered removal from the RLU (in the PUZ) of Article 25 paragraphs 1, 3 and 4.
In essence, for the claimants the issuance of permits for their parcels was conditioned on their compliance with the RLU obligation under Article 25 paragraph 4 to transfer the area burdened by a servitude to the municipality. The servitude was purportedly instituted to allow in the future expansion of the adjoining street to 16 meters width. Thus, claimants asked the court to remove the servitude from the new PUG, annul several local council decisions that grounded the transfer obligation, and oblige the municipality to issue the building permit.
The court held that the procedure of instituting the public utility servitude via the PUG and RLU gravely violated private property rights—fundamental under Article 44 of the Constitution and Article 1 of Protocol 1 of the Convention. Also, drawing the route for a future public road on the claimant’s land in the PUG was effectively instituting a legal servitude without observing the requirements of Law 33/1994, and violating the constitutional guarantee. The appeal court confirmed that partial annulment of a PUG does not amount to interference in urban vision by the municipality but serves to sanction excess of power and violation of private property rights.
Thus, the servitude was removed from the PUG in respect of the claimants’ land, the provisions of RLU Article 25 paragraphs 1, 3 and 4 (and related ones) were annulled with erga omnes effect, and the mayor was ordered to issue the building permit.
Relative Nullity of Donations Based on the Now Annulled Provisions
The new PUG of Cluj created numerous public utility servitudes in its maps of future urban vision. Implicitly, before their annulment, many owners, in order to receive a building permit, subdivided and transferred their parcels burdened by servitude into municipal ownership by notarial donation, accepted via local council decision.
The local authorities’ constant practice meant permit responses would require transfer to municipal ownership per RLU Article 25 paragraph 4 — e.g. “property line shall be withdrawn so as to ensure street width per approved PUG; the required land is to pass into public domain.” In that context, interested persons were pressured into authentic donation offers of the servitude portion, to secure permit issuance.
Such transfers warrant analysis of possible annulability of all donation contracts based on falsa causa. Donors believed the only way to obtain a building permit was to respect local norms, i.e. RLU Article 25 paragraph 4. The courts have held that the underlying normative provisions were illegal and the municipal conduct abusive.
Judicial finding of the illegality of local regulations which underpinned such transfers confirms the incidence of falsa causa in such donation contracts. Conditioning permit approval on making such a donation implies lack of true cause (Article 1236(1) Civil Code). The donation was instrumentally used to evade mandatory expropriation or public utility norms.
Lack of cause also applies when the cause is false—i.e. the party was in essential and excusable error as to the cause that led to the act. Here, the error is essential because absent the municipality’s conditioning the donation would not have occurred, and excusable because the normative provisions then had presumption of legality. So a party to such donation may request relative nullity, restitute the donated parcel, and recover expenses (subject to prescription). The same reasoning may apply for transfers through renunciation of ownership under Article 889 Civil Code.
Illegality Not Addressed for the New Public Utility Works Regulations — Deprivation of Property Contrary to Article 1 Protocol 1 by the RLU Under the PUG
Following the judicial finding of illegality in the earlier Article 25 RLU, the Cluj Local Council was forced to revise local norms to respect property rights. Thus, HCL No. 737/2017 modified Article 25 as follows:
- Issuance of a building permit for works other than public utility ones is prohibited on lands affected by public utility servitudes shown in PUG documentation.
- Exception: for existing buildings burdened by such servitudes, non-volume increasing works may be authorized (interior changes, temporary installations).
- Areas burdened by servitude will be subdivided and inscribed in the land registry as land reserved for public utility servitude.
- Permit issuance for the subdivided parcels must respect Article 27 of the urbanism regulation.
- Upon owners’ request, the burdened land may be transferred gratuitously into public ownership; in that case, the reference area for POT/CUT is the total original parcel plus half of the land transferred. This applies only in UTRs expressly designated in RLU.
Under the new regulation, issuance of permit is no longer conditioned on actual transfer of ownership but on a “reservation” procedure. While recognition of a “fair” future compensation right seems declared, the moment of payment is shifted to a later undefined moment; meanwhile, use rights are partially frozen.
Importantly, the court had criticized in the earlier decision the use by original Article 25 paragraph 1 RLU of the notion “reservation of the property” as lacking legal basis and severely violating property rights. Yet the local authority proceeded to impose a reservation obligation, i.e., partial immobilization of use via construction prohibition.
One could argue the new procedure is not full expropriation (no complete and definitive takeover) nor a de facto expropriation (the substance of the right was not destroyed). Still, the interference in property rights must be analyzed under Article 1 Protocol 1.