The General Council of Bucharest passed five decisions to suspend the coordination of the zoning plans (District PUZs) of five of the six districts of Bucharest for one year (i.e. until 26 February 2022).
The following article describes the main features of these Suspension Decisions (No. 65-69/26 February 2021).
Intended purpose of the Suspension Decisions
The initiator, Bucharest Mayor Nicusor Dan, suspended the existing district PUZs (Districts 2 to 6) to buy time to collect the alleged illegalities contained by the District PUZs. This process should be completed by May 2021 since the collection of such alleged illegalities must be made within 90 days after the passage of the decisions. When collected, a public debate will be held over examples of non-compliance on the list in order “to identify optimal solutions for urban regulation” (as quoted from article 1 para (4) of each of the Suspension Decisions).
The fate of on-going investments
According to the Suspension Decisions, all existing investments for which the permitting procedure was initiated (i.e. an urban certificate was issued) must be authorised according to the District PUZs in force before the Suspension Decisions. It not entirely clear what will happen to the investments for which application of an urban certificate had been registered with the relevant district before the Suspension Decisions. The Suspension Decisions provide that these applications will be addressed “based on the specific legal provisions in force”.
One interpretation is that these applications should be addressed to the District PUZs so that the projects falling into this category would also remain governed by the now suspended District PUZs. However, until there is further clarification from the issuer of the Suspension Decisions, the issuance of the relevant urban certificates may be blocked.
The Suspension Decisions also provide that during the suspension of the District PUZs, “previous urban documentation” will be applicable. One possible meaning of this provision is that the issuer envisaged that the urban documentations (i.e. PUZ or PUD) in force at the time of the passing of the District PUZs would now be revived and be applicable. However, this interpretation is not solid enough in our view for previous PUZs or PUDs that ceased to be in force once the District PUZs came into force. Therefore, it appears that new projects could benefit from either the existing PUG of Bucharest (itself an urban regulation renewed several times in uncertain legal conditions) or the new PUZs.
Are the Suspension Decisions legal?
Both the existing PUZs and the Suspension Decisions are administrative acts. Furthermore, in the majority interpretation, PUZs are normative acts (not individual acts), which means that they can be revoked by the issuing authority only if they did not yet produce legal effects. However, the administrative law does not provide for the suspension of such acts outside court, such as through the decisions of the issuing authority. On the contrary, administrative normative acts can be challenged in court and the court can decide on their suspension until there is a final ruling on the merits of the case. So it remains unclear to us how such a suspension can be sustained legally.
Similarly, the issuer of the Suspension Decisions have not addressed other practical situations, such as what happens with an individual PUZ that was approved based on the district PUZ. Is it still in force or is it in turn suspended? We could find legal arguments to defend such a PUZ, but it is a question whether investors would be willing to take such an interpretation as the basis for continuation of the permitting process.
Finally, can the General Council extend the suspension indefinitely?
All the above appear to be the major legal vulnerabilities of the Suspension Decisions.