Changing the functional classification (UTR) of a parcel located in Cluj-Napoca, in the Pepiniera Beca\u0219 area. 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 \u201cParcul Est\u201d on the plaintiffs\u2019 land.<\/p>\n\n\n\n The plaintiffs are owners of a parcel of land in the Pepiniera Beca\u0219 area, which under the old general urban plan of Cluj-Napoca was functionally classified as UTR \u2013 CB5<\/strong> \u201cInternational Conferences & Exhibitions Center.\u201d According to the urbanism rules applicable to UTR Uva, changes of the land\u2019s destination are forbidden; this zone classification is of a definitive character and cannot be changed through PUZ. In first instance, the Cluj Tribunal dismissed the plaintiffs\u2019 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. The plaintiffs, assisted by attorneys specialized in real estate and urbanism litigation, appealed to the Cluj Court of Appeal. Case Study Land & Urbanism Attorney Cluj: Objectives Achieved Changing the functional classification (UTR) of a parcel located in Cluj-Napoca, in the Pepiniera Beca\u0219 area.Restoring the former classification that existed prior to the adoption of the new PUG, namely the change from UTR \u2013 Uva (green zone \u2013 squares, gardens, parks with unlimited public access) … <\/p>\n
Restoring the former classification that existed prior to the adoption of the new PUG, namely the change from UTR \u2013 Uva<\/strong> (green zone \u2013 squares, gardens, parks with unlimited public access) to UTR \u2013 CB5<\/strong> (International Conferences & Exhibitions Center).<\/p>\n\n\n\nRelevance of the Case<\/h3>\n\n\n\n
Case Presentation: Change of Functional Classification \u2013 UTR of the Land<\/h2>\n\n\n\n
By Local Council Decision No. 493\/2014 approving the new PUG, the plaintiffs\u2019 parcels were reclassified as UTR \u2013 Uva<\/strong> (green zones \u2013 public squares, gardens, parks).<\/p>\n\n\n\n
In the present case, the public authority had shown interest in developing on the disputed parcels the \u201cParcul Est\u201d \u2014 a substantial green area project.<\/p>\n\n\n\nFirst Instance Decision<\/h2>\n\n\n\n
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\u2019s 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 \u201carable\u201d land, the Tribunal found provisions of Art. 57 of Law 350\/2001 (which restrict declaring private land \u201cgreen zones\u201d unless expropriation is done) cannot apply.<\/p>\n\n\n\nEnforceable Provisions After Appeal<\/h2>\n\n\n\n
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 \u2013 Uva back to UTR \u2013 CB5<\/strong>.
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\u2019 rights.
It stated that the strategy of developing sustainably by adding green spaces (Parcul Est) is consistent with public authority\u2019s 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 \u2013 CB5<\/strong>.<\/p>\n","protected":false},"excerpt":{"rendered":"