Once upon a time, the right to build… and the notion of “just” compensation!

Abstract

ZONING PLAN – REVISION – COMPENSATION FOR SACRIFICE

– Article 143(3) of the Legal Framework for Territorial Management Instruments (RJIGT) is consistent with the Basic Law (Law No. 49/98 of 11 August) and does not suffer from the alleged illegality or organic unconstitutionality.
– This provision, by requiring a “valid prior licence”, does not infringe the “democratic principle” or the constitutional principle of equality.
– Mere building possibilities set out in a plan do not grant their respective owners a jus aedificandi, at least in actu, but rather a mere legal expectation.

– Consequently, the subsequent elimination of such possibilities, resulting from the revision of the plan, does not constitute an expropriation by sacrifice that would give rise to compensation under Article 62(2) of the Portuguese Constitution (CRP).
– Article 9 of Decree-Law No. 48,051 did not represent a subsidiary legal mechanism capable of granting compensation already denied by the directly applicable law.
– Moreover, the risk faced by an area due to sea encroachment would in any case exclude the possibility that the imposition of building restrictions on that location could constitute, for the respective owners, a special and abnormal burden.