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IurisConsulting Property Lawyers Disciplinary Powers |
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| Town-Planning Powers in theDisciplinary ProceedingsBy Juan Bertomeu VallésLawyer
The power to impose disciplinary sanctions is exercised by means of the procedure established in the general legislation. The term to decide the disciplinary proceedings is six months counted from the date of its initiation, being extendable, as maximum, another six months by means of agreement adopted by the competent board to initiate the procedure.
Precautionary measures.Once the disciplinary proceeding is initiated, the board that had agreed the initiation of the same one can adopt any precautionary measures considered necessary to assure the end of the illegal activity, to avoid more production of damages to the general interest or of the individuals affected, and to guarantee the effectiveness of the indemnifications or of the sanction that presumably will be imposed at the end of the administrative enquiry. In some cases the board can apply to the Property Registry to take note of the proceeding, to guarantee to future purchasers a valid information.
Powers of the MunicipalitiesThe exercise of the disciplinary proceedings corresponds to the Municipality as own power, except in those cases in which expressly it is established that the exercise of such a power corresponds to the Valencian Government. When the disciplinary power is exercised by the Municipality, it corresponds to the Mayor to sanction for the Minor and Grave infringements and to the Plenary Meeting of the Town Council for the Very Grave infringements. In the exercise of its own powers, the Municipalities can request the assistance and collaboration both of the County council –Diputación Provincial- and of the Minister of the Territory –Conseller de la Vivienda y Territorio-.
Powers of the Valencian GovernmentThe exercise of the disciplinary proceedings corresponds to the Valencian Government as exclusive power, when it is a question of Grave infringements committed in Non Building Land in matters in which an special regional authorization is required, and in case of very Grave infringements, anyone that is the classification of land in the one that the infringement is committed. Once initiated by the Valencian Government the exercise of its administrative powers, the Municipality must abstain from any procedure in the same matter since the moment in which receives the opportune communication, sending to the Valencian Government the complete dossier of the proceeding.
The Valencian Government exercise the power of disciplinary proceeding by means of the Conselleria of the Territory, under the following rules: a) La incoación de los expedientes sancionadores, cuando sea competencia autonómica, corresponde en todo caso al Director General de Planificación y Ordenación Territorial. b) The initiation of the disciplinary proceedings corresponds in any case to the General Director of Territorial Planning. c) The resolution of the disciplinary proceedings corresponds to the following boards: 1. To the General Director of Territorial Planning, when the amount of the sanction is lower than 30.000 euros. 2. To the Conseller of Territory and Housing – Minister- when the amount of the sanction is major of 30.000 euros and lower than 600.000 euros. 3. To the Valencian Government, when the amount of the sanction is superior to 600.000 euros.
Government replacement in the municipal powers.When the Valencian Government has knowledge that there are carried out illegal activities regard of which the power of adoption of the measurements of town-planning discipline corresponds to the Municipality, will communicate it to the Town Council requiring the adoption of the correspondent legal measures. In exceptional cases, when a Municipality shows well-known negligence in the exercise of his own powers of protection of the town-planning legality and of sanction of the town-planning infringements, the Conselleria of the territory can assume the powers by means of replacement replacement, only if the infringement is Grave or Very Grave.
Criminal infringementsWhen during the procedure of the administrative proceeding there appear evidences of crime in the facts that motivated the proceeding, the administrative enquiring board must inform to the Attorney General's office (to the effects of require the punitive responsibilities in which the offenders could have incurred), suspending the procedure of the administrative proceeding until the resolution of the Attorney General's office or Court Sentence. The penal sanction excludes the administrative sanction, but not the adoption of the measures of restoration of the legality.
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