The sentence of 9 April 2024, n. 354, of the TAR Marche, section. II
Yet another confirmation is offered to us by TAR Marche, section. II, in the recent sentence. 9 April 2024, n. 354in which it was reiterated that the public administration is required to carry out this preventive balancingas owner of planning power for territorial planningin the exercise of its discretion aimed at ensuring a rational use of landsince the exercise of retail trade on public land involves permanent use, for private purposes, of public spaces which are removed from common use.
Taking into account the plurality of public and private interests involvedthe public administration, in regulating the methods, dimensions, times and parameters of these activities and in issuing the related extension certificates, is required to evaluate any alternative methods and forms of reconciliation deemed appropriate from time to time by the road, urban and architectural point of view.
In the specific case addressed by the Ancona judges, an economic operator, already owner in the past of an occupation of public land and recipient of a PNRR loan, had presented a new application until 12.31.2025, with installation of an outdoor area for serving food and drinks to the public, for a total surface area of approx. 25.50, on an area ordinarily intended for the parking of vehicles of residents in the historic center.
The Municipality, however, despite the favorable opinion of the Municipal Policerejected the request, as the occupation would have taken away two parking stalls present on the affected street of the historic centre, to the detriment of the already precarious parking possibilities in the area: in summary, the body considered the interests of public businesses and residents to be prevalent.
The three errors committed by the Municipality: violation of the principle of proportionality, lack of investigation, insufficient motivation
The judges deemed the local authority's negative decision illegitimate in many respects.
Firstly, for violation of the principle of proportionalitygiven that “It is not clear how the protection of just two parking spaces can be considered essential in order to address the general problem of vehicular traffic congestion in the historic center” of the municipality.
Secondly, it was also considered theabsence of an adequate investigation aimed at evaluating the “road characteristics and distribution of rest areas in the area” as required by the municipal regulation on the matter. Furthermore, the defect in the investigation was also considered to exist due to the fact that, already on the occasion of the release of the previous concession of public land, the Municipal Police had highlighted, in addition to the opinion which culminated in the release of the authorisation, that the two parking spaces intended to the occupation of public land by the public business in question would have been recovered with changes to the parking regulations present thereas a parking space reserved for residents would be established in the space intended for loading and unloading goods and the other in a square outside the pedestrian area.
Last but certainly not least, according to the judges, the provision denying the occupation, in denying the concession on the assumption that the installation of the outdoor area would have entailed the renunciation of 2 parking spaces, had not explained the prevailing reasons of public interest not otherwise addressable, with respect to the subjective position asserted by the economic operator requesting employment, especially taking into account the small number of the only two parking spaces affected and removed from public use, one of which would also be reserved for residents only and therefore not intended for public use.
Ultimately, the negative provision had not given sufficient account of an effective and exhaustive comparison of the public and private interests involvedsince it was not understood why the interest of the economic operator in the exercise of his entrepreneurial activity and in respecting the commitments undertaken during the financing through PNRR had to be sacrificed, without evaluating the feasibility of other options useful for better to balance the interests at stake.
Note
(1) See, for example, TAR Lazio, Rome, sec. II ter, heard. 16 April 2020 n. 3994, where it is specified that the decision must be adopted “after comparing the complex structure of opposing interests at play”; TAR Molise, section. I, heard. March 14, 2022, n. 74, according to which the institution must evaluate “the possible deservingness of the private interest that requires being able to use the public good for its own purposes, having to evaluate whether the interest of the applicant can justify the compression of the public interest to the undifferentiated use of the good”; TAR Campania, Salerno, section. I, heard. February 24, 2022, n. 550, according to which the PA's decision must “pursue the public good in a primary or secondary way together with the protection of the private interests involved”.
(2) TAR Lombardy, Milan, sec. I, heard. 12 June 2023, n. 1457; TAR Campania, Salerno, section. I, heard. 24 February 2022, n. 550; TAR Veneto, section. III, sentence. 15 May 2019, n. 598.
(3) TAR Lazio, Rome, sec. II, sentence. 25 July 2017, n. 8934.
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