LA PEREQUAZIONE URBANISTICA: INQUADRAMENTO E PROBLEMATICHE GIURIDICHE

This work is due to the need to focus, from a legal point of view, the institution of “urbanistic equalization”. Equalizing modalities take place, within some Municipalities, in order to overcome the intrinsic discrimination, typical of planning processes. To enforce this kind of technique, as a matter of fact, means to overtake, respect to the owners, an undifferentiated condition with regard to the characterizing effects deriving from discretional choices of territorial functional zoning. The thesis, then, examines the matter of urbanistic equalization, starting from a complete investigation of the sources and origins, with the intent to specify institutions and remarkable legal problems, with regard to a new relationship between public administration and private ownership. The Law n. 1150/1942 (Art.7), provides that town planning is based on a master-plan. This implies a land-zoning in which each “zone” is characterized by a specific function. The result is the creation of inequalities between the owners of properties benefited by building rights and those owners whose properties are subjected to expropriation. This happens because all the involved owners are equally subjected to support the duties connected to the construction of public works and services but it’s unavoidable that these works grant privileges to subjective situations. Several attempts to change the town-planning laws were undertaken, in the past, but they all failed. For instance the so-called “Progetto Sullo”, the Law n. 765 (year 1997) or the Law n. 10 (year 1977). Step by step, a different outlook grew up; thanks to the Constitution principles and to an ever more pointed out demand (even from the E.U.), the need to remark the ethical value of equity has been noticed. This requirement, within the urbanistic laws, is pursued to protect the citizens’ private property from the power granted to the public authorities. In comparison with the Legislative gap, the first effords to overtake a change developed straight on the territory, in those Municipalities where concrete attempts of equalization techniques’ application are pursued. Regional provisions occurred, later, but they have to do with rules which don’t work out a specific regulation; they mostly are just principles statements. As a consequence, into practice, different patterns have been carried out, connected to the needs of the land where they have been applied. Some general indications came out in the variegated outline. It’s necessary to make some principles clear. The “equalization” may be: -“of values”, if obtained through strictly financial operations, like fiscal reductions to indemnify the owner for the lost building suitability on his property; -“of volumes”, if building suitability, which may be accomplished only on a different land respect the one where it was originally settled, is assigned (within predetermined areas); -“a priori”, if building rights are not negotiable, since they are recognized to the land as an implicit potential, apart from the planner’s choices, but concerning the condition “in fact and in law” in which the area is standing. - “a posteriori”, if all the foreseen building rights are distributed between the lands involved by the plans - independently of the future lands’ function - so that their negotiation with the public authority is allowed; -“generalized or partial”, according to its being extended either to all the conversion areas or to some circumscribed areas. In both cases, the mechanism provides for the public authority to allot to each area the same building suitability, after having classified the lands according to the “in fact and in law” conditions; later, the public authority establishes the “landing areas” (where building activity will really be possible) and the “take-off areas” (where public services and works will rise). In case some subjects wanted to build, they’ll have to buy the “volume” from the take-off areas’ owners. -“by compartment”, based on the determination of specific zones in which the same building suitability is recognized to the owners, apart from the future function of the single areas; the subjects will be able to deal the building rights but just between areas localized in the same compartment. -“by expanded compartment”, if the building rights can be dealed even between owners of lands localized out of the compartment; -“compensative”, if private owners transfer certain areas to the public authority, directly realizing works of public interest. Troubles came out whereas some Municipalities tried to use the term “equalization” to mask expropriation processes without compensation. Nevertheless, the Administrative Jurisprudence intervened. The main difficulty remains connected to the purpose that the foreseen mechanisms are realized. The risk is to leave the so-called “public town” un-realized, with the following costs for the whole community. Just recently (Law 244/2007 - art. 1 comma 258/259, Law 133/2008 and, even more significant, the s.c. “Development Decree” n. 70 of 2011) the urbanistic equalization is expressly mentioned. Nevertheless, also in these cases, the legislator lost the opportunity to make this matter clear. The reasons which justify the application of equalization mechanisms are: - equality between the subjects interested in the planning; - a different idea of public administration, devoted to a greater involvement of private owners, even in the land matters; - the shortage of financial resources for the municipalities; - the need to justify and indemnify the expropriation bounds. Authoritative acts are always possibile but they have to be considered as extreme drastic measures. Having made these preliminary statements clear, we faced the main theme concerning the legal institutes which the different equalization mechanisms can be referred to. To carry this out, we need to consider that “equalization” implies a split between theoretical building rights and jus aedificandi. This way, it’s believed that a specific deal is generated, where the authority is called to establish the rules and watch over the correct course, through holding proper auctions. The Decree n. 70 of 2011 provides that are subjected to registration (according to civil code art.2642) even the contracts which transfer, settle or modify the building rights however denominated. The importance of this rule is represented by the protection of the “assurance” requirement within the rights circulation but not clearing up their nature. The formulation, then, should identify the equalization mechanism as an agreement between the public administration and the private owners, provided by the Law n. 241 of 1990, art. 11. If the subjects, whatever pattern of equalization is chosen, perceive the adherence as “economically convenient”, even the doubts connected to the possible violation of the s.c. “minimum content of the stated right of ownership” (Constitution, Art. 42) would be overcome. The equalization presents criticality which, still, can be limited by the pre-eminent role that the public administration must have, within the management of the building rights. Everything, anyway, starts from the concept of “urbanistic equalization” as a public-private agreement. With the present work, we tried to point out the problems connected to the urbanistic equalization choices as well as the attempts that have been made to resolve them.