Conformative and expropriation constraints
Art. 39 of Presidential Decree 8 June 2001, n. 327, provides that “pending an organic rearrangement of the matter, in the case of reiteration of a pre -ordered bond to expropriation or a substantially expropriation bond An indemnity is due to the ownercommensurate with the extent of the damage actually produced“(Paragraph 1).
The question that arises in the operational reality of the municipal technical offices is distinguish the merely conformative requirements from substantially expropriation prescriptions; This distinction is essentially based on nature of the goods involved:
- In the presence of anconformation of entire categories of goodsthe bond is merely conformive without obligation to pay any allowances to the owners, being a constraint compatible with the social function of the property referred to in art. 42 of the Constitution;
- In the presence of a conformation activities that affects a single asset, depriving the owner of the possibility of using the samethe bond can be considered substantially expropriation, with an obligation to pay an allowance to the owner commensurate with the damage suffered.
The jurisprudential contrast on the qualification of areas intended for neighborhood green
On the question relating to the qualification of areas intended for public green there is a contrast of jurisprudence.
A first orientation believes that it is a conformative constraint(1). In particular, it is argued that the destination with public green (but also the “neighborhood green”, “urban park”, “public park”, “urban green”, “equipped green”, “recreational equipment” or “sports equipment”) impressed by the general regulatory plan (or by an equivalent planning tool) are carried out by virtue of General and abstract criteriaand not already in function of the location of specific public works on goods identified for them (2).
A second orientation believesInstead, that it is an expropriation bondnoting that the destination of an area “public green” implies – unlike what could happen in the hypothesis of “private green” destination – that it must be expropriated to build the public structures that make it punctually compliant with the expected zoning (i.e., to the impressive publicity function). So, of the two each:
- o to the aforementioned zoning impressing destination to “public green” follows, consistently, theStart of the correlative expropriation procedure;
- or, in the absence of this, the reiteration of the “destination constraint” in constancy of further inertia in relation to the consequential documents, is configured as pathological crystallization of a constraint of absolute ineximitation (only virtually and therefore surreptitiously preordained to expropriation), which tends to connote itself as illegitimate factual expropriation(3).
This last orientation seems, indeed, to limit the affirmation of the expropriation nature of the bond only to the type of destination constraints whose prescriptions can only be implemented by the PA and not even how much the implementation is remitted to the private initiative.
A recent concrete case
In the recent sent. March 25, 2025, n. 2478, the Council of State, section IV, The judges were called to decide on the nature of a constraint on some areas included in the Area F, public and public use serviceswhich, according to the provisions of the NTA of the PRG, were intended for Equipment for public or private serviceswith specific sub-pre-investigation a Public green neighborhood, natural or equipped.
For the concrete use of these interventions it was foreseen both direct implementation and private initiativethe latter according to methods and criteria established by the standard (design, approval by the City Councilcalled to verify the adequacy with respect to the territorial scope of afference as well as the specific intended use – public park, areas for the game, sports equipment, etc …).
The public relevance of the interest it did not implyTherefore, that the areas should necessarily be expropriatedbut but imposed a functional constraint to the private individual (confirmed by the standard as regards methods, criteria and purposes) use/exploitation of the areas in order not to prejudice the interest of the community. The private individual could prepare direct initiative projects; The Municipality could examine compatibility from the point of view of their conformation with respect to the area destination, or the public interest. Consequently, it was in front of a conformative constraint(4).
Notes
(1) Council of State, section IV, sent. March 27, 2023, n. 3118.
(2) Council of State, section II, sent. February 28, 2022 n. 1367; sent. January 21, 2020, n. 476; Section VI, sent. January 30, 2020, n. 783; Section IV, sent. 1 July 2015, n. 3256; sent. 6 October 2014, n. 4976; sent. November 29, 2012, n. 6094; sent. January 19, 2012, n. 244.
(3) Administrative Justice Council for the Sicilian Region, sent. March 28, 2022, n. 383.
(4) See also Council of State, section IV, sent. August 9, 2024, n. 7077: “The administrative jurisprudence is constant in believing that the destination with equipped public green (Cons. State Section II, 21 January 2020, n. 476) or Urban Park (TAR Lombardy, section II 4 January 2012 n. 15) does not coincide in itself with the imposition of an expropriation constraint. The destination constraints imposed by the General Regulatory Plan for Equipment and Services, among which the equipped public green includes, also achievable to private or promiscuous initiative in the market economy regime, have a particular character, but escape the ablatory scheme and the related constitutional guarantees in terms of alternativity between compensation and predefined duration, not constituting expropriation constraints, but only compliance, functional. to the general public interest (Council of State, Section II, 28 February 2022 n. 1367; Section II, 21 January 2020, n. 476; Section VI, January 30, 2020, n. 783).“; Council of State, Section V, sent. March 14, 2025, n. 2099:”It should be excluded that an NTA article may have affixed an expropriation constraint if:
He limits, but does not exclude, the private initiative to which both the realization and management of the equipment for public services (art. 13.2) are allowed, with specific regard to the subzona F1 (public and territorial parks) where the work for which it is the cause, the interventions for the recovery of existing buildings with the intended use of the receptive and tourist tourist tourist and tourist tourist and the expansion for the functional hygiene of the existing buildings falls with historical, architectural and environmental value;
He admits the private property of the plants built, albeit sub species of superficial ownership, guaranteeing, at the same time, the permanent destination of the same at the service of the community by means of the purchase by accession, in favor of the Administration, to the information of the surface right and once the private initiative has ceased.”
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