Afacere suspectă, afacere prosperă. Despre oportunitatea urbanismului derogator
Suspicious business, prosperous business. About the opportunity of derogatory urbanism

Summary/Abstract: Being an extremely discussed and contested topic of administrative law in general, the “opportunity” to issue/adopt an administrative act has not yet been the subject of an analysis in the field of urban planning law as, insofar, there can be noticed only some disparate reasoning in jurisprudence regarding this subject. Attempting to identify whether there is “discretion” in the matter of urban planning – i.e. a certain freedom of local public administration bodies to draw, within the limits of the law, various directions of urban development through a zonal urban plan (PUZ), derogating from the initial urban vision established by the general urban plan (PUG) and the local urban planning regulation (RLU) –, first we noticed that, in principle, at least three distinct perspectives can be drawn on the opportunity: the “urban” opportunity in the technical sense (related to the establishment or modification of building rules in the regulated area); the “social” opportunity (related to weighing the options expressed by the holders of real estate property rights in the same area); the “financial” opportunity (related to the need to initiate and finance new urban planning documents, which involves spending public money). Then, we tried to identify the legal limits of these powers of appreciation in the matter of derogatory urban planning, starting from the provisions of Law no. 350/2001, regarding the regulatory field of the PUZ and its relations with the PUG: there are, therefore, urban planning rules that by law cannot be established by the PUZ; other times, the PUG prohibits derogatory rules; finally, even if some exemptions are allowed, the law sometimes establishes their maximum limit. At the same time, it was necessary to analyze the existing relationships between the right of the authority to condition and limit by its own will the urban regulation through PUZ and the right to private property, whose attributes are to be “shaped”, following the adoption of a legal PUZ: augmented, limited or, in certain extreme situations, even suppressed by the refusal of the administrative authority to approve this documentation. Starting from the jurisprudence of the Constitutional Court in the matter of the regime of private property rights, we came to the conclusion that property cannot be regulated by a normative administrative act having legal force inferior to the law, unless this manifestation of administrative will directly implements the law. The conclusion is also supported by the recent jurisprudence in the matter of derogatory urban planning, from which a second conclusion emerges: a certain limit of the property right first must be abstractly provided by a legal text, and only after it can be established concretely through an administrative act. The project of the future Urban Planning Code was, in turn, an important step in our analysis, as this future codified rules also address urban planning limits and prohibitions; the general conclusion is that the possible limitations of the right to private property drawn by normative administrative acts must be permitted by law and, most importantly, must be instituted in respect of the principle of minimum interference in the exercise of this fundamental right. In order to determine the administrative bodies that can appreciate the opportunity to adopt derogatory urban planning documents (PUZ), it was necessary to identify the rules of administrative competence in the matter of urban planning. Starting from the premise that the only administrative bodies that hold (part of) this competence are the chief architect, the mayor and the local council, we went on to analyze the sharing of this competence between them. A first conclusion is that the evaluation of the “technical” (urban planning) opportunity belongs exclusively to the chief architect (the mayor who approves the chief architect’s opinion only has the competence of verifying the legality of the procedure, respectively, of compliance with the legal limits of the exercise of discretionary power); then, the discretion of the local deliberative body, the local council, which does not exist in all situations, is limited to certain aspects of “social” opportunity. Thus, the unity of the owners will in the regulated area deprives the administrative authority of its margin of appreciation, a will against this social will being equivalent to a violation of the right to private property. But even in the hypothesis in which there is no unity of social will, the opinions expressed by owners being divergent, the power of appreciation of the elements of “social” opportunity does not exist in all situations, but only when the divergences have other causes than the violation of the substance (the “physical dimensions”) of the right to private property belonging to some local citizens by means of the future urban planning documentation. In this case (encountered in the hypothesis of urbanization areas that lead to the reconfiguration of plots in the regulated area), the very substance of the right to private property is at stake; so, as there is a question of legality, there can be no power of appreciation in violation of this right. Or, in such a situation, the only solution for the public administration is the expropriation of plots whose owners oppose the urbanization. At the end, the study analyzes the prerogatives of an important character in the landscape of derogatory urban planning – the administrative litigation judge – who is often notified of a possible violation, through the administrative decision to approve or reject an urban planning documentation, of a limit of the right to private property. In such a case, the judge could discover the existence of an excess of power, more exactly, in the hypothesis that such a limitation, established by a normative administrative act, touches the general regime of private property, and, at the same time, violates the principle of proportionality and the principle of minimum interference in the exercise of this fundamental subjective right.

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