Blatant incompetence. Clearing out the Anas parking lot, Grasso gets the municipality of Casamicciola into trouble
From the Campania Regional Administrative Court comes a resounding rejection for Eng. Gaetano Grasso, powerful “manager” of the Municipality of Casamicciola Terme, for having assumed powers that belonged only to the mayor. The case brought to the attention of the administrative judges is that of the Anas parking lot, a portion of which had been used as a storage area for the company carrying out the intervention on the La Rita riverbed, which was still in progress.
In June of last year, Grasso, then head of the Technical Area, had ordered the company "to immediately remove the large prefabricated elements and to free up the occupied area inside the ANAS car park located in Casamicciola Terme on Via Tommaso Morgera (formerly SS270)." In August, having noted the non-compliance, he had ordered the forced eviction to the detriment of the prefabricated buildings. Establishing that everything removed would be deposited in the Pio Monte della Misericordia. Grasso justified the measures with the circumstance that "the area of the ANAS car park according to the Intermunicipal Civil Protection Plan has been identified as a strategic area, i.e. "A place of convergence where the intervention forces (men, materials and means) can be amassed, to be used and possibly distributed later" in the event of natural disasters.
And it was precisely this “reminder” that screwed the engineer. The executing company, “IGC” of Catania, challenged the management order no. 39 of 06/26/24 and all the other presupposed, annexed and consequent acts. The Municipality, despite having constituted itself defended by the lawyer Alessandro Barbieri, collected the “punitive” sentence.
As the panel of the Fifth Section immediately highlighted, with the appeal filed last September the company requested the annulment not only of the order, but of the subsequent acts, in particular "the report of non-compliance drawn up on 14 August 2024; the notice of eviction notified on 20 August 2024, with provision for forced execution and charging of removal costs for an amount of 6,100 euros plus 126 euros per day for storage; the silence maintained by the Municipality with regard to the formal notice sent by the appellant on 23 July 2024".
INTERRUPTION OF WORKS In its appeal, the “IGC clearly specified that it was the holder of a contract for the hydraulic maintenance and arrangement of the “La Rita” riverbed, awarded by the Metropolitan City of Naples, for the execution of which it had received the use of the area in question as a temporary storage area for bulky materials”.
Here a first error attributable to the Authority is highlighted: «The Municipality, with a note dated June 27, 2023, ordered its evacuation to be used as a public parking lot. Subsequently, with a note dated January 31, 2023, the same Municipality recognized the availability of the area to the Metropolitan City». The dates are not exactly exact, but the concept is clear. Above all, the contradiction in which Grasso fell. The Catania-based company in fact complained that «Despite this recognition, the Municipality of Casamicciola adopted the ordinance being challenged, availing itself – according to the appellant – of civil protection powers in the absence of the legal requirements, determining the forced evacuation of the area in August 2024, with consequent interruption of the works under contract». An aspect, this last one, which makes the entire affair even more serious and the stubbornness in wanting to impose the liberation of the area at all costs.
THE ERRORS AND CONTRADICTIONS OF THE MUNICIPALITY Among the various grounds for appeal, the first proved to be decisive and “absorbent”, namely the incompetence of the manager. In fact, that ordinance had been adopted “invoking civil protection powers reserved by law to the Mayor as a government official. The adoption by a manager, lacking competence in matters of contingent and urgent ordinances, constitutes a radical flaw due to absolute incompetence”.
In any case, the appeal also highlighted the lack of prerequisites for the adoption of extraordinary measures: "The use of the motivation linked to civil protection would be specious, in the absence of real current and imminent danger to public safety. The municipal intervention would respond to tourism purposes (destination of the area to parking) instead of those of protection of the territory or emergency".
The fact remains, however, that, as stated, "the area subject to eviction would not fall within the legal availability of the Municipality, but of that of the Metropolitan City, as per the note of the Municipality itself of January 2023. The contested act therefore conflicts with official acts of the same resisting body". Also contested is the absence of prior communication of the start of the procedure and of the motivation suitable to justify the urgency.
Finally, the illegitimacy of the silence maintained on the request of 23 July 2024 was invoked: «The appellant contests the inertia of the administration with regard to the formal notice sent, which should have determined an activation in self-regulation to re-examine the act. The administration has omitted any response, in violation of the obligations set forth in law no. 241/1990».
THE COST OF ACTIVITIES AND COMPENSATION In light of these "allegations", the Municipality of Casamicciola Terme preliminarily objected to the inadmissibility of the appeal due to a supervening lack of interest, "the appellant having complied with the order and recalling the state-owned nature of the area, which would require a formal sub-concession that was never requested". On the merits, it then supported the full legitimacy of the contested provision, "which would be an expression of the power to impose sanctions in building matters, pursuant to art. 35 of Presidential Decree 380/2001, and not of a power justified by contingency and urgency. It also denied the existence of an obligation to provide in relation to the formal notice of 23 July 2024". The Authority even hypothesized building abuses, but ended up contradicting itself, as later noted in the ruling. The TAR, with a collegiate order, had rejected the request for suspension, which was instead granted by the Council of State.
The fact is that when examining the merits, the panel chaired by Maria Abruzzese "swept away" any justification. First, it rejected the objection of inadmissibility of the appeal due to absolute lack of interest since, as highlighted by the appellant, "the latter's interest in the annulment of the contested executive order no. 39 of 06/26/24 persists both because of the possibility of reusing the area necessary to complete the works under the contract, and to avoid being forced to pay the sum ordered for the removal and custody of the artifacts previously installed there, as requested by the Municipality, and, lastly, and as a residual measure, to ascertain its illegitimacy also for the purposes of compensation for damages". A further blow for the Authority.
THE MUNICIPALITY'S DEFENSE ARGUMENTS REJECTED The appeal was considered well-founded, as stated, "taking on decisive and absorbing significance the first of the complex complaints with which the appellant contested the competence to adopt the contested ordinance by the person in charge of the Technical Area of the Municipality of Casamicciola Terme, the provision in question being an expression of the extra ordinem powers attributed exclusively to the Mayor pursuant to articles 12, paragraph 5, of Legislative Decree 1/2018 and 54, paragraph 4, of Legislative Decree 267/2000".
The TAR has cornered Eng. Grasso. The ruling first of all highlights that the ordinance "was adopted by the Head of the Technical Area of the Municipality of Casamicciola Terme and is based, according to what emerges from the provision itself and from the municipal defense documents, on the need to remove alleged illegal artifacts and to allocate the area to strategic use in the context of the Civil Protection Plan, such need having also emerged due to the natural disasters that had affected the territory of the resisting Municipality". A thesis that the Authority tried to "take back" during the defense, but it went badly. The panel in fact counters: «Now, differently from what was proposed by the Panel in the precautionary stage, although the defendant administration in the defense stage proposed the reconduction of the provision within the scope of the ordinary powers of repression of building abuses (art. 35 of Presidential Decree 380/2001), from the literal content and structure of the ordinance, it emerges that the rationale that inspired the intervention is rather attributable to the protection of public safety in the context of an emergency and, therefore, to the extraordinary powers provided for by articles 12, paragraph 5, of Legislative Decree no. 1/2018 and 54 of Legislative Decree no. 267/2000 (TUEL)».
Here the jurisprudence is cited according to which the qualification of administrative acts subject to judgment is up to the administrative judge, "the exact qualification of a provision must be carried out only in light of its actual content and its real cause", with the consequence "that the appearance deriving from a possibly imprecise or improper terminology, used in the textual formulation of the act itself, is not binding nor can it prevail over the substance".
And the TAR observes «how the act in question expressly recalls the purposes of the Civil Protection Plan, leveraging the urgency and the need for immediate interventions for the liberation of the area, to be used in the event of natural disasters or emergencies». In fact «the preceptive content of the ordinance, the use of the formula “ad horas”, as well as the simultaneous forced execution unequivocally testify to its extra ordinem nature, that is, of a contingent and urgent ordinance».
THE TASKS OF MANAGERS Having established the nature of the ordinance, it follows that Eng. Grasso was not entitled to adopt it. The ruling in fact clarifies: «It is a consolidated principle in administrative jurisprudence that the power to adopt contingent and urgent ordinances is exclusively attributed to the Mayor, in his capacity as a Government official pursuant to art. 54, paragraph 4, TUEL. Such measures, by their nature derogating from ordinary legality, cannot be delegated to managers or administrative officials». And a further confirmation came from the Constitutional Court, since these are acts «admissible only in the event of a situation of unforeseeability, exceptionality and actuality of the danger and adoptable exclusively by the political authority at the top».
In the case of Casamicciola, "the municipal manager has assumed a function that is not attributed to him by the legal system, affecting subjective rights with an act that, for its purpose and content, can only be qualified as a contingent and urgent ordinance, a typical expression of trade union power".
The consequence is «the illegitimacy of the contingent and urgent ordinance adopted by the manager or official responsible for the administrative sector concerned and not by the Mayor, where the latter acts in matters of public order and safety as a government official and, therefore, within the scope of powers that cannot be delegated to separate bodies or components of the municipal administration, the manager being assigned tasks of ordinary management of the municipal assets that do not provide for the adoption of extra ordinem measures to protect collective safety and security». It couldn't be clearer! Grasso was wrong.
ILLEGAL BUILDING HAS NOTHING TO DO WITH IT The other justifications of the Municipality were also rejected, such as the reference to the rule that gives managers administrative, financial and technical management, «but does not attribute to them powers of ordinance in matters of public safety and security, which remain firmly anchored to the figure of the Mayor». Ditto for the attempt to include the ordinance in the cases provided for by art. 35 of Presidential Decree 380/2001: «this rule concerns illegal building and presupposes a separate verification and sanctioning process, not compatible with the rationale and urgency underlying the contested act».
The ruling is lapidary: «Therefore, the objection of absolute incompetence is well-founded, which entails the radical illegitimacy of the act due to violation of the order of competences». Adding that «even in the absence of an express normative reference to art. 54 TUEL, the order contains motivations connected to public safety and civil protection needs, such as the alleged destination of the area for emergency purposes, and provides for immediately enforceable measures, confirming the extraordinary and urgent nature of the intervention». The result is «the clear incompetence of the issuing body, with an irremediable defect of the act and absorbing the other objections».
The incompetence of Eng. Grasso, which entails the annulment of the ordinance and subsequent acts, now exposes the Municipality of Casamicciola to a series of problems: the company will ask to regain possession of the area, will not pay the cost of removing and storing the prefabricated buildings and could also ask for compensation for damages. For the engineer, a bad “slip”.
Il Dispari
