The nature of the multifunctional structures to be used as RSAs and retirement homes
According to a well-known jurisprudential orientation, both private nursing homesboth the multipurpose structures to be used as healthcare residences for the elderly (RSA) and to retirement homes can be qualified as “buildings or plants intended for direct industrial activities (…) at the provision of services” and, therefore, an amount is due for them reduced contribution pursuant to art. 19, Presidential Decree 380/2001.
In this sense, with reference to the previous art. 10 of Law no. 10/1977, it was stated that this rule “presents (…) a clear dictation and its applicability to private nursing homes does not require particular exegesis or analogical interpretations, it being sufficient to focus on the literal dictation, in the consideration that no law precludes the healthcare entrepreneur from pursuing profit, nor can the presence of incisive public controls on the activity carried out have any influence in this regard. It is correct, therefore, to state that healthcare activity, if carried out by a person not institutionally required, presents the objective characteristics of industrialism and, therefore, must be subjected to the most favorable treatment. In this regard, it is also useful to recall the orientation (…) according to which the building permit relating to a property intended for a private nursing home is entitled to partial exemption from urban planning contribution, provided for by article 10 of law 28 January 1977 n. 10, for concessions relating to buildings or systems intended for industrial or artisanal activities aimed at the transformation of goods and the provision of services. So much so since ‘entrepreneurial activity aimed at providing healthcare services is fully an industrial activity, according to the definition of industrial activity that can be found in the art. 2195 cod. civil.”(3).
With specific regard to RSAs and retirement homes, it was observed, in similar terms, that “the aforementioned destinations to “Multifunctional building to be used as a healthcare residence for the elderly and people with reduced mobility” it’s at “Retirement home and protected residence” appear to correctly refer to “destined buildings or systems (…) to the provision of services”; so as to allow, as deemed by the TAR, the applicability of the reduced contribution provided for by the art. 10, first paragraph, of law no. 10/1977 and then by art. 19, paragraph 1, of Presidential Decree 380/2001”(4).
A recent concrete case
Reiterating these principles, the TAR Calabria, Catanzaro, section. II, in the sentence. 5 June 2024, n. 885, reiterated that a multifunctional structure to be used as a “Retirement Home”, “Protected Home”, “Rehabilitation Center” and Assisted Health Residence”, for the provision of social-welfare residential activities (retirement home, rehabilitation center for disabled people), social and healthcare activities (RSA – sheltered home for the elderly) e health activities (rehabilitation centre), must be brought back to the application scope of the first paragraph of the art. 19 of the Consolidated Construction Lawhaving as its object a building which will be used both for the provision of healthcare services, and in a retirement home for the elderly.
The sentence also deserves to be noted for a further peculiarity. The company requesting the building permit, in fact, contested the inadequacy of the share relating to the buildings primary urbanization costsas, according to him, already satisfied and paid on occasion, about 20 years earlierof the issuing of a building permit for the construction of an original socio-healthcare structure and of which the new structure represented, in fact, a continuation, albeit on a larger scale.
The judges also recalled that the portion of the construction contribution commensurate with the urbanization costs fulfills – as constantly affirmed by jurisprudence – the primary function of compensating the community “for the new additional urban planning burden which spills over the area, with the clarification that the increase in urban planning load must mean both the need to equip the area with new urbanization works and the need to use the already existing ones more intensively”(5).
The purpose of the construction contribution, in fact, with particular regard to the part related to primary and secondary urbanization costs, is to publicistic natureas it aims to “socialize” the expenses that the community is called upon to bear for the construction of works serving the area where they are located.
In this case, they must therefore be considered primary urbanization costs are dueas the construction of the new multifunctional structure increases the urban planning load, entailing, not only the necessary construction of new urbanization works (at least those between the new structure and those already built), but also a greater use of those existing there. The claim not to pay the Municipality an amount for primary urbanization costs was therefore not considered founded.
Note
(1) Presidential Decree no. 380/2001.
(2) Historically, the favorable regulation for productive activities finds its antecedent in Law 28 January 1977, n. 10, which – in introducing the principle according to which every activity involving urban-building transformation of the territory, subject to the issuing of a building permit, participates in the costs deriving from it, through the obligation to pay a contribution consisting of the two quotas of urbanization charges and construction costs – excluded the “concession relating to buildings or systems intended for industrial or artisanal activities aimed at the transformation of goods and the provision of services”.
(3) Council of State, sec. V, sent. 26 August 2013, n. 4267; see, in an adhesive sense, TAR Piedmont, section. II, sentence. 15 March 2017, n. 371; TAR Campania, Salerno, section. II, sentence. 17 January 2022, n. 119.
(4) Council of State, sec. II, sentence. 8 March 2021, n. 1900.
(5) Council of State, sec. II, sentence. 27 June 2022, n. 5297.
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