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Judgement

N. 01229/2008 REG.SEN.

N. 01090/2007 REG.RIC.

ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE

The Regional Administrative Court for Liguria

(Section One)

gives the following Judgement

The action of general register number 1090 of 2007, supplemented by additional grounds, proposed by the Lords ......... omisis

against the City of Genoa, in the person of the mayor in office, represented and defended by lawyers Graziella De Nitto, and Aurelio Masuelli Domenico, with an address at the latter in Genoa, Via Garibaldi 9;
Genoa Province, in the person of the President, represented and defended by lawyers Robert Giovannetti, Valentina Manzone, Carlo Scaglia, with an address at the first in Genoa, Piazzale Mazzini .2;
Services Conference in person the president, not before the court

ASL 3 Genovese, CEO dl in person in charge, not in court

Ministry of the Interior, in the person of the minister in charge, not made in court against

Ministry of National Heritage and Culture, in the person of the minister in charge, not in court

Mediterranea delle Acque SpA in Genoa in the person of the current legal representative, not in court

ASTER SpA, Genoa current legal representative in charge, not in court

Telecom Italy SpA, in Milan in the current legal representative in charge, not in court

Enel Distribuzione SpA, in Rome in the current legal representative in charge, not in court

Iride SpA, Turin current legal representative, not in court

Elci, civil and industrial construction Ligure srl, Genoa current in its legal representative in charge, not in court

Italpali srl Genoa current legal representative in charge, not in court

Raschellà Stefano owner of a sole proprietorship, unincorporated Feedback

Villa Rosa Parks Ltd, in Genoa in the current legal representative in office, represented and defended by Luigi Cocchi, with an address with him to Genoa on Via Macaggi 21/5-8

for the cancellation of the minutes of the 9/20/2007 conference services with which it was approved the project for the construction of underground parking in the complex of Villa Rosa Genova Pegli

title issued for such construction

of the minutes of the service representative and all opinions expressed by the Administration

the deliberations of the municipal council of Genoa 27.5.2003, n. 47

deliberations 26.2.2004, n. 141 / 7.4.2005 No 284 of the Municipal Board of Genoa

determining 18.7.2005 parking section of the manager of the town of Genoa

the agreement signed on 1.12.2005 between the town of Genoa and Villa Rosa Parks Ltd

to compensation for costs damage

determining 17/10/2007 Town and the manager of the center of the town of Genoa

determining 17.10.2007, No 118.18/00073 direction of economic development and land environment of the town of Genoa

Minute Services Conference 09/20/2007

taken the final determination of 17.10.2007

determining managerial 17.10.2007, No . 118.18/00073 direction of economic development and land environment of the town of Genoa

Given the appeal and additional reasons, including their annexes;

seen acts of formal proceedings of the town of Genoa and the Villa Rosa Parks Ltd Ltd

having the documents served by the applicants containing additional grounds of appeal

considering the briefs filed by the city of Genoa and the defendant constituted

Rapporteur in the public hearing of the day 05/06/2008 dr. Paul Peruggia and heard advocates for the parties as specified in the minutes;

held and considered the facts and law as follows:

fact and law

Mr. Andrea Bach and other fifty-two litisconsorti reported epigraph is believed affected by the minutes of 20/09/2007 conference services with which it had approved a project for the construction of underground parking in the complex of Villa Rosa in Genoa Pegli, titled issued for such construction, the minutes of the Conference of reference services and any opinions expressed by the organs of , the resolution of the municipal council of Genoa 27.5.2003, n. 47

the deliberations 26.2.2004, n. 141 / 7.4.2005 No 284 of reached the town of Genoa, from the determination of the executive 18.7.2005 parking section of the town of Genoa and the agreement signed on 1.12.2005 between the town of Genoa and Villa Rosa Parks Ltd, to serve the document referred 22.11.2007, deposited on 6.12.2007, which denounced:

Disability derived for ineffectiveness of the PUC in Genoa.

violation and misapplication of Articles. 21 paragraph 4 and 25 of D.lvo 42, 2004, absolute failure of the assumptions and reasoning, illogical and manifestly unreasonable, violation and misapplication of Articles. 3, 14 of the Law 07.08.1990, n. 241.

violation and misapplication of Articles. 20 and 146, D.lvo 42, 2004, with reference art. 3 of Law 07.08.1990, n. 241, absolute failure of the assumptions and investigation.

violation and misapplication of Article. FF9 AS10 and the NTA of the PUC in Genoa, with reference to PTCP and art. 35 NDA for absolute failure of the assumptions and investigation.

violation and misapplication of Article. FF9 AS10 and the NTA of the PUC in Genoa, a defect of the assumptions, illogical and manifestly unreasonable.

violation and misapplication of Article. 1, paragraph 4 of DPCM 1.3.1991 with reference to the DPCM 14.11.1997, absolute lack of investigation, violation and misapplication of Article. Liguria region 4 of the Act 28 of 2004 for lack of inquiry.

violation and misapplication of DPCM 7.6.1995 and the Charter of educational services, with reference to art. 32 of the Constitution, violation and misapplication of Article. 3 of Law 07.08.1990, n. 241, failure of conditions and the investigation.

violation and misapplication of Article. 22 cod. road, with reference to Article. 46 of the implementing regulation, manifest illogic and irrationality, lack of investigation.

violation and misapplication of Article. 4.2 of the rules of implementation of geological PUC of Genoa, with reference to art. 3 of Law 07.08.1990, n. 241. conditions and lack of investigation.

Violation and misapplication of Articles. FF9, AS10 and AS6 nta of the PUC in Genoa, with reference to art. 3 of Law 07.08.1990, n. 241, fault condition and lack of inquiry.

violation and misapplication of Articles. 14:14 ter of law 7.8.1990, n. 241, with reference to Arts. 1 and 3 of the law itself, absolute lack of investigation and manifest unreasonableness.

violation and misapplication of the resolution, 27.3.2007, n. 44 of the municipal council of Genoa, ultra vires of contradictory extrinsic.

violation and misapplication of Article. 14:14 ter of law 7.8.1990, n. 241 default assumptions and misrepresentation. Manifest illogicality and irrationality.

violation and misapplication of Article, 21 c of the law 7.8.1990, n. 241, default assumptions, illogical and manifestly unreasonable.

violation and misapplication of Articles. 7 and 8 of Law 07.08.1990, n. 241, defect investigation.

E 'proposal was an application for compensation.

The town of Genoa was established in court by an application filed on 11.12.2007, which asked

rejection of the appeal.

The defendant is in court with a document filed on 12/07/2007 with which said the rejection of the claim, a defense and deposited the 12.12.2007.

a writ served on 23.1.2008, filed on 19.2.2008, the appellants appealed against the determination of 17.10.2007 and manager of the urban center of the town of Genoa and the determination of 17.10.2007, No 118.18/00073 direction of economic development and land environment of the town of Genoa, arguing:

disability derived from the ineffectiveness of the PUC in Genoa.

violation and misapplication of Articles. 20 and 146, D.lvo 42, 2004, with reference to art. 3 of Law 07.08.1990, n. 241, absolute failure of the assumptions and investigation.

violation and misapplication of Article. FF9 AS10 and the NTA of the PUC in Genoa, with reference to PTCP and art. 35 NDA for absolute failure of the assumptions and investigation.

violation and misapplication of Article. FF9 AS10 and the NTA of the PUC in Genoa, a defect of the assumptions, illogical and manifestly unreasonable.

violation and misapplication of Article. 22 cod. road, with reference to Article. 46 of the implementing regulation, manifest illogic and irrationality, lack of investigation.

violation and misapplication of Article. 4.2 of the rules of implementation of geological PUC of Genoa, with reference to art. 3 of Law 07.08.1990, n. 241. defect assumptions and investigation.

violation and misapplication of Articles. FF9, AS10 and AS6 nta of the PUC in Genoa, with reference to art. 3 of Law 07.08.1990, n. 241, fault condition and lack of inquiry.

violation and misapplication of Articles. 14:14 ter of law 7.8.1990, n. 241, with reference to Arts. 1 and 3 of the law itself, absolute lack of investigation and manifest unreasonableness.

violation and misapplication of the resolution, 27.3.2007, n. 44 of the municipal council of Genoa, ultra vires of contradictory extrinsic.

violation and misapplication of Article. 14:14 ter of law 7.8.1990, n. 241 for lack of assumptions and misrepresentation. Manifest illogicality and irrationality.

violation and misapplication of Article, 21 c of the law 7.8.1990, n. 241, default assumptions, illogical and manifestly unreasonable.

violation and misapplication of Articles. 7 and 8 of Law 07.08.1990, n. 241, defect investigation.

With a further writ served on 06/03/2008, filed 01/04/2008, the applicants have challenged the project subject to approval of the acts already censored before, and have concluded:

violation and misapplication of Article. D.lvo 93 of 12.4.2006, n. 163, in conjunction with Articles. 25 and following of the DPR 21.12.1999, n. 554, default absolute precondition.

violation and misapplication of Article. 20 of Presidential Decree 503 of 1996 Articles. 4.1.2, 4.2.1 and 4.3 of the Ministerial Decree 236 of 1989, absolute failure of assumptions and inquiry.

violation and misapplication of Article. 4.6 dm 3 of paragraph 236 of 1989, he s Articles. 3.10.4 and 3.7.2 paragraph 4 of the Ministerial Decree 02/01/1986, assumptions and lack of investigation.

The parties lodged separate submissions on 22.5.2008.

The plaintiffs are challenging the acts with which the town of Genoa has approved the project and then nodded the construction of the underground car park of Villa Rosa, in the district of Pegli. Interested

prove the title for the proposed action with their status as residents or property owners located in the area where you should implement the project in question: there is therefore the stable connection of the applicants with the area in which it is scheduled to attend, with the application must be considered eligible.

The questions were divided into three distinct acts, the application and two applications containing additional grounds.

acts complained of must be examined first with their application.

The cancellation request concerning the minutes of the 9/20/2007 conference services, building the title away for the surgery and all opinions and consents made during the procedure which led to the final determination to go ahead with the work, after a ruling and order of this court, which had been declared illegal the silence and delay in adopting the determinations of the pa following the planning approval for a long time.

It observes that the services conference was convened for a specified time, after the tar of Liguria had given the order 30.8.2007, n. 300, which was considered not entirely unfounded complaints with which the defendant had alleged that today's delays in the issuance of the AR resulting in the grant already approved.

had happened that the authority city \u200b\u200bhad long ago issued the grant for the construction of parking within the park of Villa Rosa: political and administrative organs of Genoa had shown, however, concerns the location of the work, which should be achieved within a precisely park, which is located more than one school. The subjects that have become dealers had then formed the defendant company for the realization of the project, and as such appealed to the court to challenge the uncertainties of the administration, which had not resolved to retrace their acts planners, but had not even absent acts necessary to carry out the work required by the planning still effective. In this sense, the order of the Administrative Court had led to a turning point in the proceedings, so that the PA was resolved to convene the conference services, to define the details of the work.

The measure further charged with building the application and the title actually released 10/17/2007 (identified only with the first fully application contains additional grounds of appeal), whose annulment is sought together all consents or opinions expressed in office

the conference.

The above indicates that individuals are not immediately contested the numerous acts of planning, over time, the town of Genoa adopted at different levels of government for such a determination are also collected detailed measures submitted to this college, since all the measures which it is sought 'annulment of the summary report in the introduction of the acts from which they derive legitimacy.

This can be explained examined the pleas with their application.

The first complaint is the illegality of the entire PUC to Genoa following the delivery of 985 of the 2002 ruling of the Administrative Court, upheld the 7782 decision of the State Council in 2003: the argument is in the sense that the declaration of illegality of the PUC overwhelms the instrument as a whole, since its pronunciation is censured the proceedings of training, so at present, the PUC would not have municipal effectiveness.

The College observes that the Court has long found it agrees that the cancellation of a procedure for the formation of a master plan exerts effects only for the portion covered by the complaints of the interested party. In this vein, the absence of a different judicial decision can not be concluded that the cases cited in Genoa to take effect on the entire instrument, and this is especially true, given that in this part of the sentence court where they were given the contested measures including clear that the applicant's request in that case involved only the planning for the affected area (an area in town Multedo, once destined for the foundry industry which had been sought possibility of commercial use), so also in this respect can not believe that the court has ruled beyond the bounds set by the questions, eliminating the entire instrument.

The plea is therefore unfounded and must be rejected.

its second complaint, the appellants claim the illegality of the notice issued by the Superintendence of Liguria to the architectural and landscape; who said that it had found that the conditions for expressing a reasoned dissent. Interested parties argue that the rules require the state to issue an alert pa able to remove one or more constraints imposed on a portion of the territory, in relation to a project, so the formula specified could not be treated as a positive opinion, that would result from the illegality of the contested measures, the extent to which they have welcomed the intention of the administration at the conference.

The College can not accept the argument of, just because the law puts the state administration the expression of a positive opinion or negative in this case was issued a warning though tortuous non-negative, which was properly treated as a positive, but by considerations of mere logical argument, deriving from this rejection of the complaint. With the next

reasons the applicants allege: •

the unlawful design work, which disrupts the environment, spoils the park, damaging the existing trees and make noise and air pollution (ground 3);

the

• violation of the plan, which are contradicted by the project in question (reason 4)

• the violation of the rules of the plan that require conservation trees (pattern 5);

• the violation of the DPCM 7.6.1995, of the Charter of education services and art. 32 cost. (Reason 7)

• the violation of the rules of the road, which would not allow the coordination of movement and withdrawal of access from the parking lot with that in place in the area (ground 8);

• the violation of the rules of the plan, to the extent they have not been complied with on the stability of the slopes in the area who have always shown a tendency to slide (pattern 9);

• the violation of the rules of the plan made by the current review of the park, which will all 'outcome intervention (reason 10);

• the violation of the resolution, 27.3.2007, n. 44 City Council, on the setting of parking and their compatibility with the existing urbanization (reason 12).

• the violation of procedural plan on Intervention of parties with different interests than the project (reason 15).

All of these complaints can not be considered eligible, provided that the decisions made by the contested measures are justified under the preceding stage of the planning process, during which they were examined with thoroughness all profiles (referred to as critical) that could discourage the settlement provided. It was already noted in this connection that the contested measures trace diligently prior acts, in which they were discussed and in fact exceeded the profiles that the parties seek to put into question here for the first time such behavior is not consistent with the principles of the case the current process, which includes the need to impose a measure adversely affecting the terms of forfeiture (article 21 of Law 12/06/1971, n. 1034) from its full knowledge.

All documents that have been suggested are summarized as planning have been published in a manner consistent with law, which they consider themselves known to all, so that the deduction of complaints in this respect, each side declared inadmissible and unacceptable to the other party. How has direct relevance to the act of long standing is in fact late and on the other hand, this action makes it connoted An application for annulment of the subsequent acts, which derive legitimacy from those refute.

The reasons listed above to be partly inadmissible and partly inadmissible.

The sixth plea with the application initiating the applicants allege the violation of the DPCM 1.3.1991 with reference to the DPCM 14.11.1997, as the site which will open in the area is near a school, and students will make noise , so that should have be made a social impact assessment of the yard.

The College observes that the administrative bodies and the council have dealt with the issue, but also notes that the issue should be examined further when you started the work as specified in its art. 1, paragraph 4 of DPCM 01.03.1991.

Therefore, this complaint is inadmissible.

With the eleventh reason appellants claim the lack of investigation, to the extent that complain about not stating the existing pre-fabricated in the park, currently used as a nursery school.

The College notes that the defense instead of the municipality filed on 12/11/2007 clarifies that the property in question was visible in the map used to examine the draft headquarters in the conference, (a plant extract called local paper scale 1:1000) resulting in the first rectangle right above the shaded area.

The complaint is unfounded in fact and must be rejected. By the thirteenth

reason denouncing the misinterpretation that was given to previous decisions of the Administrative Court, with particular regard to the order August 30, 2007, No 300. The complaint is in dispute with the assessment of duty, that would be given to the issuing of licenses as a result of a preliminary protective order.

In this regard, the College calls as set forth in the recitals of this premise, and adds only that the parties can boast only of interest because the acceptance of applications for proposals: the aforementioned resolution, 27.3.2007, n. 44, Genoa City Council has in fact reopened the debate on whether to go ahead with the intervention in dispute, but that determination has not had the effect of a total rethink the acts adopted by planners time.

E 'therefore the argument that supports the correct order 300/2007 of the court, in so far as it finds that the failure by the municipality of a power unequivocal withdrawal of the planning documents adopted at its could not keep time dealers in a situation of uncertainty. This does not mean that the court has expressed itself in terms of the binding nature of the administrative city, and on the other hand, the services conference has thoroughly reviewed all the profiles to be evaluated, which would have been unnecessary if the AR had taken Building on the assumption indicated. This plea is therefore unfounded and must be rejected. By the fourteenth

so interests denounce the failure to consider the effect that the resolution of the Board 04.11.2007, No. 60 had the procedure.

by that time had actually discussed the review of the plans adopted in pursuit of the parking lot, but efforts of today's proceedings on the instance of the Administrative Court does not seem to have allowed the town council to reconsider the issue with completeness.

Therefore the decision is left to the state Board of intent not implemented, so that it can not be drawn arguments in support of the alleged illegality.

In conclusion, the reasons put forward with the appeal application are in part unfounded, in part inadmissible and in part inadmissible. With the use

notified on 23.1.2008 containing additional grounds of appeal the appellants claim the illegality of the determination 17.10.2007 leadership with which it was prepared to close the proceedings consent to the grant under construction at the time stipulated, as well as determining managerial 17.10.2007, No 207/118.18/0073 containing the final measure requested by the defendant.

It is, for the truth of the acts already reported with the application, even if that claim they had not been fully identified.

In any case it is noted that the parties have relied on the grounds of appeal by way of additional, corresponding exactly with the instances proposed document instituting the proceedings: the claims are overlapping, with the exception of any detectable change in lexical especially under the headings premises the allegations.

must therefore be declared again that the allegations are unfounded in part, in part inadmissible and in part inadmissible.

must now be reviewing the complaints raised by the notified last resort, containing additional grounds.

Interested challenge acts 17/10/2007 (managerial determination terminating the proceedings) and 17.10.2007, No 207/118.18/0073 (Act establishing a management agreement with the project) who had also been burdened with the additional grounds for appeal always notified on 23.1.2008.

The reason is given for the filing of new complaints about an inspection by the parties concerned would in the interim, an expert report and entrusted to a professional person.

On this basis the panel must agree with the argument of the defendant and defendant in that dispute the lateness of deductions.

It observes that the parties would have required all attachments to the measures already burdened by the date on which they had some knowledge of the acts themselves (according to the narrative of the same, the 13.12.2007, the date on which it was, though without the express decision, the precautionary measure requested by the originating application) can not be regarded as making a survey of some interesting but worth a call the time for appeal of acts, whose defects have been reported with a more timely defensive activity.

It should be noted that the act in question is notified on 6.3.2008, and then over a period of sixty days provided for in art. 21 of Law 06/12/1971, n. 1034.

follows from this that all the allegations proposed by the third statement of additional grounds are inadmissible.

In conclusion, the appeal is partly unfounded, in part inadmissible and in part inadmissible.

Such costs may offset equally between the parties, notwithstanding the outcome of the dispute, given that the administration engage in conduct in the first months of 2007, which could have led interested parties to propose the application pending a reconsideration of the town planners on the statements made on time.

PQM

Declares the application in part unfounded, in part inadmissible and in part inadmissible.

offset expenses.

Order that the above is carried out by the administrative authority.

Decided in Genoa during the closed session of the day 05/06/2008 with the participation of Judges:

Holy Balba, President

Oreste Mario Caputo, Councillor Paul

Peruggia, Advisor, extenders



L'ESTENSORE		IL PRESIDENTE

FILED IN OFFICE

on 06/06/2008

(Art. 55, L. 27/4/1982, n. 186)

THE SECRETARY

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