31. Documentaţia de urbanism. Cerere în anularea hotărârii Consiliului Local de respingere a Planului Urbanistic de Detaliu şi în obligarea la aprobarea documentaţiei şi emiterea Planului Urbanistic de Detaliu
31. Town planning documentation. Application for annulment of the decision of the Local Council rejecting the Detailed Urban Development Plan and for an order to approve the documentation and issue the Detailed Urban Development Plan

Summary/Abstract: 1. In accordance with the provisions of art. 155 para. (5) lit. f) C. adm., the mayor ensures the development of the urban plans provided for by law, submits them to the approval of the local council and acts to comply with their provisions. Even if, in the process of drawing up, approving and issuing the urban planning documentation, the Mayor is also involved, as an authority of the local public administration, he does not become the owner of the legal report deduced from the judgment under a passive aspect. The situation is different from the one in the process in which the plaintiff obtained the obligation of the Mayor to complete, with reasons, the administrative stage regarding the request for approval and submission to the approval of the City Council of the urban planning documentation consisting of the Detailed Urban Plan related to the land in question. According to art. 139 para. (3) lit. e) C. adm., the local council is the authority responsible for issuing decisions regarding the organization and urban development of localities, and by participating in the process, as the sole defendant, ensures the full defense of the interests of the administrative territorial unit, including in terms of administrative operations prerequisites found in the attributions of the executive authority. 2. The decision to reject the draft PUD represents an administrative act that materializes the explicit refusal of the competent public authority, in which case the way is opened for the interested person to refer the administrative litigation court, which has full jurisdiction in resolving the request, based on the evidence provided in conditions of adversariality and immediacy, as well as based on the defenses formulated by the parties. 3. The isolated location of the proposed building was determined by certain physical/technical conditions, addressed in this way even by the interested person, but the legal prohibition to regulate by PUD an area smaller than 200 square meters became applicable. The regulation through the PUD would have been possible only if the construction regime had been fulfilled, i.e. it would have fallen into the category of terraced buildings, for which the minimum plot area is 150 sqm, and it would have derogated only from the rest of the conditions, permitted by PUD. In the urban planning certificate, all the necessary legal conditions were indicated to the beneficiary depending on the indicated investment, however, through the concretely proposed project, it did not fit into the part reserved for the PUD, since it proposed a construction located in isolation, but on a land with an area of less than 200 square meters. This express condition follows from the law (lato sensu), being an objective, imperative element, and not subject to the appreciation of public authorities, so the existence of favorable opinions/agreements cannot justify ignoring it. Only in the situation where the refusal to adopt the PUD would have looked at elements of opportunity, regarding which the expert opinions would have been proven to be convergent, the question would have arisen of the increased requirement regarding the motivation of the competent authority's decision to derogating from them, respectively the limits of the jurisdiction of the administrative litigation court in reassessing such elements. 4. According to the jurisprudence of the European Court of Human Rights, in the case of exercising the use of goods in accordance with the general interest, we are not in the presence of a transfer of ownership from one owner to another, but only in the presence of a limitation of one of the attributes of the right of ownership, the use, in close connection with the existence of a general interest that must be satisfied and with the observance of the measure of proportionality. It was assessed that through the attitude of the plaintiffs, who, before the establishment of the absolute prohibition to build on archaeological grounds, did not express their intention to build and did not start the administrative procedures for obtaining a building permit, they contributed to the loss of the chance to build on part of the land and that the encroachment respects the fair balance between public and private interest. In principle, the conditioning of obtaining an urban planning documentation by which the right to build is recognized, under certain conditions, does not violate the right to private property enshrined in art. 44 of the Romanian Constitution and art. 1 of Additional Protocol no. 1 to the European Convention on Human Rights.

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