Institutional portal - Municipality of Milan

Milan, February 11 2021 – “The damage to municipal planning power appears evident and above all the sacrifice of municipal prerogatives is not proportionate, with violation of the principle of reasonableness referred to in art. 3 of the Constitution".

It is just one of the passages of the three ordinances of the TAR of the Lombardy Region in the context of three appeals presented by as many property owners against the Municipality regarding the rule on the recovery of abandoned buildings of the Territorial Government Plan. The rulings in fact support the Municipality which, in defending the municipal law, raised the issue of the unconstitutionality of article 40 of Regional Law 18/2019 which allows the owners of abandoned properties to obtain a building bonus of up to 25% and to build in derogation of the morphological regulations and the provisions of the PGT.

We read in the ordinances: “The regional law incentivizes situations of abandonment and degradation in an absolutely discriminatory and unreasonable manner, which gives rise to the possibility of obtaining volumetric premiums and more favorable urban planning and building regulations compared to ordinary ones. The application of the art. 40-bis also to the dilapidated properties identified before its introduction - as well as to those reported directly by private individuals - overturns the territorial planning of the Municipality, which had developed and introduced a special regime for the recovery of the aforementioned properties, precisely taking into consideration the impact of redevelopment interventions on the existing urban fabric. In fact, it is one thing to redevelop a property, maintaining its same consistency (or demolish it, allowing the recovery of only the existing gross surface area: art. 11 of the Authorization Notes), another thing is to recognize as a benefit an additional building index, oscillating between 20% and 25%, which is accompanied by exemption from any obligation to find standards".

“The regional legislator – the TAR further writes – has imposed an unjustifiably rigid and uniform regulation, operating regardless of municipal decisions and capable of producing a very incisive impact on local planning and potentially capable of distorting the layout of the territory, or of important parts of the same, in a completely dissonant manner compared to what is established in the general urban planning instrument".

“The application of the regional provision excessively compresses – with violation of the art. 5, 97, 114, second paragraph, 117, second paragraph, lett. p), third and sixth paragraphs, and 118 of the Constitution - the municipal planning power, in particular of municipalities that have more than 20.000 inhabitants (such as the Municipality of Milan), not allowing such bodies any corrective or derogatory intervention capable of enhancing , in addition to their own planning autonomy, also the peculiarities of the individual territories of which the Municipalities are the most immediate and direct expression".

“Although the identification of abandoned and degraded properties is left to the municipal council, the owner of a property is nevertheless allowed to certify with a sworn appraisal, in addition to the cessation of the activity, also the existence of the conditions to benefit from the favorable regime of referred to in the art. 40 bis. The Municipality therefore does not have the right to select, at its discretion, the properties to be recovered, as the application of the regional law can also take place at the request of the owner of the building. The absolute uncertainty regarding the impact on the territory of such a forecast, both from a quantitative and qualitative point of view, prevents the Municipality from coherent urban planning, making it in some parts, even important ones, completely ineffective".

The violation of the Constitution is also found in relation to contradictions in the regional legislation itself.
“The rule also appears unreasonable – with violation of the art. 3 of the Constitution - in the part in which it does not relate to the principles contained in other provisions of the same regional law n. 12 of 2005 (especially those referring to the reduction of land consumption) and regional law no. 31 of 2014 ("Provisions for the reduction of land consumption and the redevelopment of degraded land"), since the reduction of land consumption represents a priority and qualifying objective of regional territorial planning, oriented towards a model of sustainable territorial development".

Finally, according to the TAR, “art. 40 bis also appears to be in conflict with the principles of equality and impartiality of the Administration deriving from the articles. 3 and 97 of the Constitution, given that it recognizes rewards for the redevelopment of abandoned and degraded properties in favor of subjects who have not taken steps to keep them in good condition and who have favored the onset of situations of degradation and danger, unlike the owners diligent people who have met the burdens and duties resulting from their right to ownership, but who for this very reason cannot benefit from any advantage in the event of interventions on their property. The regional law, therefore, encourages situations of abandonment and degradation in an absolutely discriminatory and unreasonable manner."

In conclusion, the TAR suspends the proceedings so that the documents are transmitted to the Constitutional Court.