The change of intended use: comparison between state and regional legislation
As already analyzed in detail in another contribution, in fact, the state legislator has introduced a series of provisions that profoundly innovate the art. 23-ter of the Consolidated Construction Law, providing for a series of simplifications summarized in point 2 of the ministerial guidelines of 30 January 2025 which, beyond their placement in the system of sources of law, are expressly referred to in the ruling of the Constitutional Court no. 61/2026.
Yes to secondary urbanization charges, no to primary urbanization charges
For its part, due to changes in “vertical” use, the Tuscany Region had maintained the obligation to also pay primary urbanization charges, in contrast with the state regulations which provide for reference only to secondary urbanization charges and do not require the finding of additional areas for services or parking.
In the opinion of the Council, which deemed the question of illegitimacy raised by the Presidency of the Council of Ministers to be well founded, the regulation of urbanization charges falls within the fundamental principles of the subject of “territorial governance”.
Therefore, the state legislation, in providing only reference to secondary urbanization charges, is placed in a system consistent with the nature of changes in intended use in already urbanized areas, while the regional provision, allowing primary urbanization charges to also be maintained, is in contrast with this structure. Hence its illegitimacy.
Yes to municipal limitations, no to conditions
A further question submitted to the Constitutional Court concerned the regional provision which gave Municipalities the possibility of establishing, in their urban planning instruments, not only “conditions” but also “limitations” to changes in intended use.
The subtle distinction between the two terms (considered, however, as “hendiadys” by the regional defence) it was clarified by the Consulta according to which the “limitations” are distinguished from the “conditions” by a greater degree of incisiveness on the right to property. The example of limitation, contained in the sentence, is “that which prevents the change of intended use of entire properties in relation to fractions of territory, or which recognizes broader discretion to the administration”.
In this way, however, the margin for municipal intervention would be unduly widened compared to the model outlined by state legislation, for which the regional law which gives municipalities the power to set limitations has been declared unconstitutional.
Yes to immediate applicability, no to transitional regulations
Finally, sentence no. 61/2026 declared the constitutional illegitimacy of the transitional provisions of regional law no. 51/2025 which subordinated the application of state legislation on the use of properties to the approval, within two years, of municipal urban planning variations or specific adaptation acts.
On this point, it was noted that the state regulations instead provide for a direct and immediate application of the new provisions, consistent with the aim of simplification, and are aimed at all subjects of the system, without the need for mediation by municipal planning.
Final thoughts
A general impression is drawn from the ruling of the Constitutional Court: the Save Casa does not allow a temperate transposition by the Regions which, essentially, have little margin to deviate from the provisions of Legislative Decree 69/2024.
Read and download the ruling here
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