Administrative, Urban Planning, Public Service, Destination of an area to standards, Uti cives, State Council, Section Fourth, 17/06/2019, Judgment n. 4068
The destination of a standard area is finalized by means of a servitude of public use to the use of the same by the entire indistinct community of citizens (uti cives) and not limited use (uti singuli) by the users of the units only real estate in relation to which the obligation to provide standards has arisen (1).
(1) The municipality of ….. authorized a development in 1982 (industrial sheds) obtaining in exchange standard areas: green, public car parks, municipal warehouse.
In fact, however, over the years the companies that own the sheds use those public spaces (parking lots and areas outside the municipal warehouse) as a maneuvering space for heavy trucks that access the sheds to deliver or collect goods.
In 2014 the municipality – verified that the standards are overabundant – alienated part of the parking lots and the warehouse to a company, through a public auction, which bounds its new property through fencing.
At this point the Companies, deprived of the external maneuvering spaces, arise before the Brescia TAR which accepts the appeal.
The decisive point according to the TAR is that, despite parking standards have been transferred to the Municipality and perform the function of parking spaces for the community, in practice, their use over time would have transformed them into “maneuvering yards” with the tolerance of Municipality and that, in any case, the development agreement for 1982 should be interpreted as meaning that the provision for the construction and transfer of public parking lots in the production sector implies the faculty of using the same spaces as maneuvering areas for the leasing companies.
On appeal by the municipality and the …. the judgment in question radically disregards this provision.
The College does not doubt that these areas have been used for a substantial period of time also and above all for these purely private purposes of the companies in the sector, nor does it doubt that the fencing of the area could constitute a potential hindrance to the maneuvers of the drivers of the truck for access to companies, but reiterates that the standard areas have been acquired by the Municipality for public purposes, and not as spaces for maneuvering articulated vehicles, and the fact that they have also been used, or above all, for these purposes to serve the companies it does not detract from the legally imprinted destination and the consequent faculty for the Municipality to dispose of the buildings in compliance with the law.
Source Administrative Justice
