Tatiana Fiodorov, Real Estate Lawyer, Fiodorov & Partners
On August 7, 2024, the General Mayor of Bucharest proposed amendments to Decision No. 1113/2023 concerning the organization, operation, and nominal composition of the Bucharest Municipality’s Technical Traffic Commission (“DTP No. 1113/2023”), as amended and supplemented.
DTP No. 1113/2023 regulates the functioning of the Bucharest Municipality’s Technical Traffic Commission (the “Traffic Commission”). Generally, the Commission’s responsibilities involve regulating traffic on public and private roads open to the public, creating road infrastructure, placing installations and temporary structures near public roads, enforcing traffic restrictions and detours, determining public transport routes and station locations, urban planning, street network development, categorizing streets or public parking areas, and setting traffic restrictions for public gatherings.
It is important to note that DTP No. 1113/2023 distinguishes between a “preliminary agreement,” issued during the development of zoning (“PUZ”) and detailed urban plans (“PUD”), and an “endorsement,” issued for technical construction permit documentation (“DTAC”).
The proposed amendments aim to ensure that preliminary and traffic permits issued by the Traffic Commission fully consider the legal and urban planning context, aligning with “the legal position of the mayor and the municipality.” Specifically, the amendments include clarifying that the Traffic Commission is a technical body with an “advisory role,” which was not previously stipulated. Regarding the signing of permits, the amendment suggests that these will be signed by each attending member involved in the decision-making, unlike the previous rule, which required only the signature of the chairperson or vice-chairperson.
The most significant change concerns the issuance and signing process for preliminary agreements and permits. Preparation of these documents will remain under the Traffic Management Service.
However, signing will now fall under the executive director of the Transportation Department, with an exception for preliminary agreements and endorsements for PUZ, PUD, and DTAC, which will be signed by the General Mayor of Bucharest.
In this context, one may ask to what extent the Mayor’s failure to sign these preliminary agreements and endorsements could block the urban planning documentation and construction permitting processes. Is this amendment a true threat, without available remedies, for good-faith real estate developers in Bucharest?
Initially, it must be noted that the Traffic Commission’s permit is not always required. According to Article 5 of Law No. 50/1991, the Traffic Commission’s permit is unnecessary for single-family dwellings located on category II and III streets that are not in the vicinity of a roundabout intersection.
Specifically, it is essential to analyze the impact of this change on the centralization of signing preliminary agreements/permits for PUZ, PUD, and DTAC under the direct authority of the General Mayor. The signature represents a prerequisite for the existence of an administrative act; without it, the document is merely a draft (even if adopted by the necessary majority). Therefore, the lack of the Mayor’s signature renders the preliminary agreements/permits for PUZ, PUD, and DTAC nonexistent.
Moreover, under Article 5, paragraph 3 of Law No. 50/1991 on construction permitting, which stipulates that permits and agreements established by the urban certificate, along with the environmental authorities’ opinion, must be attached to and become part of the construction permit, it may be argued that the absence of the Traffic Commission’s permit could lead to the annulment of the construction permit. Similarly, according to Article 64, paragraph 2 of Law No. 350/2001 on territorial and urban planning, “Territorial and urban planning documentation approved without the permits provided by applicable regulations is void.”
However, considering the advisory role of the Traffic Commission, it may be argued that as long as this body has been consulted, the preliminary agreement/endorsement should not constitute a procedural defect severe enough to annul the documents, provided that there is evidence of its involvement in issuing the administrative act in question.
Finally, there has been discussion in practice about the potential application of tacit approval if the Traffic Commission fails to issue the required permit within a reasonable timeframe. Until November 2019, according to Article 7, paragraph 2, letter b) of Law No. 50/1991, the tacit approval sanction applied to endorsement not issued within 15 days of registration, without further procedures. This provision was amended in 2019 (by Law No. 193/2019), with the current sanction being a fine imposed by the ISC. Consequently, tacit approval no longer applies to endorsements.
Affected parties may refer to the provisions of Administrative Litigation Law No. 554/2004, as amended, regarding unjustified refusals to resolve a request. This law applies when there is explicit evidence of an authority’s intent to refuse a request based on an abuse of power. According to the law, abuse of power implies exercising discretionary authority in violation of the legally established limits or infringing on citizens’ rights and freedoms. In this context, General Council Decision No. 66/06.04.2006 of the Bucharest General Council (“GCD No. 66/2006”) may also be invoked, which regulates the minimum parking space requirements for new constructions in Bucharest. According to this, failing to meet the minimum parking requirement by up to 20% obligates the applicant to pay a fee of EUR 10,000 per parking space not provided on their lot (the “Exemption Fee”). Thus, GCD No. 66/2006 itself provides a remedy that may be specified in the Traffic Commission’s permit.
The next steps will include the mayor’s approval of the proposed amendments to DTP No. 1113/2023. This may significantly impact the approval process for new projects, from urban planning documentation to technical construction permit documentation. We strongly recommend that stakeholders in the real estate and construction sectors closely monitor these developments and, if necessary, propose
additional amendments to protect their interests.