The problem is that the "foundation" of this tall building is not reliable-according to the court's judgment of 20 19 12, it is the product of illegal administration by Xi 'an Planning Bureau (now incorporated into Xi 'an Natural Resources and Planning Bureau). ?
The court finally ruled that the "Construction Project Planning Permit" issued by Xi City Planning Bureau for Building 77 was illegal. ?
Xi Anfu Licheng Community North Zone, Building 77 is located on the south side of Building 9. In the past two years, many owners of Building No.9, thinking that this building has seriously affected their rights and interests, complained about this and filed several lawsuits. ?
In the end, they won the case, but the building was successfully completed and moved in. ?
Only after the owners defended their rights did they discover that Building 77 was indeed the product of illegal administrative actions. But the established facts have not changed. ?
Where are the hotels and green spaces?
The owners of Building 9 think they have been cheated by the community developers. ?
"When I bought a building, I promised to build a hotel and green woodland here!" When the owners of Building No.9, such as Wang Ruiyuan and Fan Xiaojun, purchased the building, they dug up the advertising pages and other materials issued by the seller. ?
In March of 20 17, they found a enclosure on the south side of Building No.9, and learned that a 3 1 storey residential project would be started here. ?
Pointing to the advertising page and sand table in their hands, Wang Ruiyuan and Fan Xiaojun and others told reporters that the developer had introduced that the south side of Building 9 was to build a hotel with only four floors in the main building, with green space between the two floors, wide vision, good ventilation and convenient access. ?
On the advertising page they made, the location of Building 77 now shows an L-shaped building marked with the word "Hotel". ?
Many owners told reporters that after listening to this statement, they bought Building No.9 with a height of only 1 1 at a relatively high price. ?
Today's 3 1 floor building will inevitably affect their rights and interests such as lighting, ventilation and transportation. ?
Owners who think they have been cheated have begun to defend their rights. They looked for developers-Xi 'an Binhu Garden Real Estate Development Co., Ltd. and Xi 'an National Civil Aerospace Industry Base Management Committee. Xi 'an National Civil Aerospace Industry Base is located in the southeast of Xi 'an. It is a space science and technology industry gathering area and urban function bearing area that the local government has made great efforts to build, and the R&F urban community is located in this area. ?
It was also in the process of safeguarding rights that they learned that Building 77 had obtained the construction project planning permit (Xigui Aerospace Jianzi No.20 17) 002 issued by Xi Planning Bureau on March 28th, 2017. In other words, just as they were defending their rights, the 77th building they wanted to oppose got the "birth certificate". ?
Many owners speculated that "the original plan should be changed" and asked to consult the original plan, but failed. 2065438+On September 30th, 2007, many owners of Building No.9, such as Wang Ruiyuan and Fan Xiaojun, filed an administrative lawsuit, requesting the court to revoke the planning permit for the construction project of Building No.77 and its affiliated three-dimensional garage and underground convenience market. ?
Between Xi Railway Transport Court and Xi Railway Transport Intermediate Court, which mainly hear administrative cases in Xi, the case has gone through a series of procedures, such as the first trial, the second trial sent back for retrial, the first trial after retrial, and the second trial again. ?
The plaintiff's appeal is simple: he thinks that the administrative act of Xi City Planning Bureau to issue the "Construction Project Planning Permit" to R&F developers is illegal and requests the court to revoke the permit. ?
From beginning to end, the Planning Bureau of Xi stated that there was nothing illegal in its actions. ?
On March 2, 20 19, the Xi Railway Transport Intermediate Court made a final judgment: the Xi Planning Bureau issued a construction project planning permit (Xigui Aerospace JianziNo. 102). (20 17)002), the main evidence is insufficient, the applicable laws and regulations are improper, the legal procedures are violated, and its administrative actions are inconsistent with laws and regulations. ?
An important piece of evidence that has not been shown?
The "focus" of this lawsuit involves a major evidence-the Regulatory Detailed Planning of the land involved. From this, we can know the types of buildings that are suitable for construction, unsuitable for construction or conditionally allowed to be built on the plot where Building No.77 is located, as well as its control indicators such as building volume, shape, height, density, plot ratio and green space rate. In other words, it is clear at a glance whether hotels and houses can be built on this land. ?
To the owner's surprise, Xi Planning Bureau did not submit this main evidence to the court during the trial of this case. ?
Regarding the importance of this evidence, the Xi Railway Transport Intermediate Court stated this: "When examining the application for planning permission of construction projects, the examination and approval authorities should not only examine whether the applicant has submitted all the materials in accordance with the relevant provisions of laws and regulations, but also comprehensively examine whether the application and materials submitted by the applicant meet the planning conditions such as regulatory detailed planning organized by the municipal planning department." ?
The court also added that it should examine whether the application form and the attached materials conform to the regulatory detailed planning of the land involved, the national environmental protection impact standards, the planning requirements and various control indicators stipulated by laws and regulations such as land use nature, building density, sunshine spacing, plot ratio, green space rate, parking spaces, infrastructure and public service facilities, and emergency shelters. ?
However, Xi Planning Bureau, which bears the burden of proof, did not submit its regulatory detailed plan. Therefore, the court held that it could not prove whether the application and materials submitted by the developer met the planning conditions such as regulatory detailed planning, and could not prove that the application and materials met all regulatory indicators and all statutory planning conditions and requirements. ?
Wang Ruiyuan and other owners believe that Xi Planning Bureau, as the competent planning department, cannot be unaware of the regulatory detailed planning of the land involved; If the materials submitted by the developer are considered to conform to the regulatory detailed planning, why not provide them to the court? If it is not based on this plan, is the construction project planning permit issued only based on the materials provided by the developer? ?
Is anyone responsible for the illegal act?
In addition, Xi 'an Planning Bureau was found to have violated legal procedures. ?
The Intermediate People's Court of Xi Railway Transport found that Xi Planning Bureau did not organize relevant experts to review the design scheme of the construction project involved, did not inform relevant stakeholders of the licensing matters of the construction project involved, and did not listen to the opinions of the applicant and interested parties. Therefore, after examination, it is considered that the sued administrative act made by Xi City Planning Bureau violated legal procedures. ?
However, after the above determination, the court had such a "but": "But considering that Building No.77 involved in the case has obtained the pre-sale permit for commercial housing, involving 248 households, all of which have been sold out, it will cause great harm to the public interest to revoke the planning permit for the construction project involved"-therefore, according to the Administrative Procedure Law, this administrative act will not be revoked. ?
After a year and a half of litigation, Wang Ruiyuan and other owners finally made a final judgment. He told reporters that due to the time-consuming and labor-intensive litigation process, only four of the 10 owners who initially filed a lawsuit persisted in the end. ?
Even if the lawsuit is won, it will not change any established facts-although the "Construction Project Planning Permit" of Building 77 is illegal, it will not affect the developer to sell it. Even after the lawsuit has ended, the attached three-dimensional garage and other facilities are still under construction. ?
Since then, the owner of Building No.9 has repeatedly approached the relevant government departments, demanding that "at least stop the construction of ancillary facilities such as the establishment of a garage and correct illegal acts". The answer is: although the court thinks that the administrative license is illegal, it has not decided to revoke it, so the administrative license is still valid. ?
The owner still has many questions: it is illegal, but the result of illegal behavior cannot be revoked. Can we continue to break the law? If so, what is the difference between illegal and non-illegal? Should anyone be responsible for the illegal behavior? ?
Wang Ruiyuan said that if the effective judgment still fails to help residents safeguard their rights and interests, they will continue to initiate civil lawsuits and demand economic compensation. "This is completely helpless." ?
For the owners of Building No.77, the judgment also brought bad news-since the planning permit for construction projects has been ruled illegal, it is still unknown whether the house they bought can successfully apply for the real estate license. ?
Zhongqing Daily Wang Zhongqing reporter Sun Haihua Source: China Youth Daily