Motivarea documentaţiilor de urbanism (PUZ, PUD), piatră de temelie sau piatră de moară?
Justifying town planning documentation (Zoning Urban Plan, Detailed Urban Plan), a cornerstone or a millstone?

Summary/Abstract: There are currently far too few legal texts that expressly stipulate the mandatory duty to give reason (or to motivate) town planning documentations. The most important ones have been adopted during 2016, but not even they do not expressly indicate nullity as a sanction in case of violation. Thus, in light of Article 28 from the Law no. 554/2004, we are led to the conclusion that, if the motivation flaw would be covered right until the hypothetic moment when the nullity is rendered, the sanction itself would not even be applicable. On the other hand, the motivation as a formal condition, in reality, is instated only so that one can easily distinguish the document’s reason, the substantial condition (pursuant to the legislative modifications which occurred in 2016, the adoption of a ZUP is conditional upon the existence of dysfunctions in the pre-existing documentations). In such hypothesis, either the substantial condition does not exist, in which case the document is susceptible of nullity regardless of its containing or not a formal reasoning, or the said conditions is met (and may be highlighted by means of a specialised expertise), and then the formal lack of a motivation cannot be relevant, thus being an unessential formality. The article examines successively the sources of the duty to give reasons, in order to observe to what degree it truly exists for town planning documentations: European regulations, including recommendations/resolutions of the Council of Europe’s Committee of Ministers, but also national legislation. At the same time, it analyses four other problems concerning the town planning reason giving: the identification of a possible sanction for an inexistent or insufficient motivation, the place where one must find the said motivation, the hypothesis in which reason giving would be necessary and, lastly, the very content of the alleged duty to provide it – what the reason giving of the town planning documentation must contain, while referring to both the issuing authority’s discretionary power and the principle of legal certainty which, within some limits, also rules the activity of territorial and town planning.

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