JUDGMENT NO. 161

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in proceedings concerning the constitutionality of Article 8-bis of Apulia Region Law No. 33 of November 15, 2007 (Recovery of attics, porticoes, basements, existing buildings, and unauthorized public areas), as amended by Article 27, paragraph 1 (correctly: read in conjunction with Article 27, paragraph 1), of Apulia Region Law No. 51 of December 30, 2021 (Provisions for the formation of the 2022 forecast budget and the 2022-2024 multiannual budget of the Apulia Region - Regional Stability Law 2022), brought by the Regional Administrative Court for Apulia, Section Three, in the proceedings pending between Kamelya Real Estate srl and the Municipality of Bari, pursuant to the order of January 22, 2026, registered under No. 37 of the 2026 order register, and published in the Official Journal of the Republic, No. 10, First Special Series, for the year 2026.

Having regard to the appearance in the proceedings of Kamelya Real Estate srl, as well as the intervention of the Apulia Region;

Having heard Judge Rapporteur Maria Alessandra Sandulli at the public hearing of July 7, 2026;

Having heard counsel Saverio Profeta for Kamelya Real Estate srl and Anna Bucci for the Apulia Region;

Having deliberated in the council chamber on July 7, 2026.

Rits in Fact

1.– By order dated January 22, 2026, registered under No. 37 of the 2026 order register, the Regional Administrative Court for Apulia, Section Three, raised questions regarding the constitutional legitimacy, with reference to Articles 3, 9, 97, and 118 of the Constitution, of Article 8-bis of Apulia Region Law No. 33 of November 15, 2007 (Recovery of attics, porticoes, basements, existing buildings, and unauthorized public areas), "as amended by Article 27, paragraph 1” (correctly: read in conjunction with Article 27, paragraph 1), of Apulia Region Law No. 51 of December 30, 2021 (Provisions for the formation of the 2022 forecast budget and the 2022-2024 multiannual budget of the Apulia Region - Regional Stability Law 2022).

2.– According to the referring court, the main proceedings originate from an appeal against the measure whereby the Municipality of Bari rejected an application for a building permit for the recovery and change of intended use (from office to residential) of an existing building, located "[...] in a mixed zone where residential use and tertiary use are normally permitted at 50% each (Art. 39 of the Implementing Technical Rules of the General Urban Development Plan [P.R.G.] of the Municipality of Bari, entitled: ‘Zone for tertiary activities’)”.

The application had been submitted pursuant to Article 8-bis of Apulia Regional Law No. 33 of 2007, "a provision aimed at promoting the reuse of the existing building stock through changes of use in derogation of the urban planning instrument in specific areas identified by individual Municipalities” (specifically, the Municipality of Bari had activated the derogation for the mixed zone pursuant to Article 39 of the General Urban Development Plan - PRG where the property in question is located). However, it was rejected on the grounds of incompatibility with Municipal Council Resolution No. 2 of January 13, 2025, which, by excluding the entire zone from the applicability of the regional derogation on changes of use, precluded the change of destination for both new constructions and existing buildings, "modifying the previous approach (Resolution No. 11 of 2022) which instead permitted, in the specific area, the change of destination for old buildings, but not for those yet to be built.”

The applicant challenged before the TAR (Regional Administrative Court) for Apulia the denial and the prerequisite resolution, alleging their illegality on multiple grounds.

The referring court further states that the appeal argued, in particular, that this latter resolution betrayed the ratio of the regional legislation aimed at promoting the reuse of the building stock and the containment of land consumption, "creating the unreasonable effect whereby the change of use would be permitted in expansion zones, but prohibited in mixed zones, which are the subject of the specific derogation.” It also reports that, upon entering an appearance in the proceedings, the Municipality of Bari noted that the choice to prohibit the change of use throughout the entire zone represented "a ‘due act’ following the final judgment issued in parallel proceedings.”

3.– More in detail, the referral order specifies that, pursuant to Article 8-bis, paragraph 1, of Apulia Regional Law No. 33 of 2007, introduced by Article 2, paragraph 1, of Apulia Region Law No. 16 of April 7, 2014, bearing "Amendments and additions to Regional Law No. 33 of November 15, 2007 (Recovery of attics, porticoes, basements, existing buildings, and unauthorized public areas)”, municipalities, "in order to promote the reuse and recovery of the existing building stock […] may permit changes of intended use […] of lawfully constructed properties […] in homogeneous territorial zones designated by the general urban planning instrument for mixed use […]” (paragraph 1) and that, in implementation of this provision, the Municipality of Bari, by Resolution No. 31 of June 18, 2015, had permitted the change of destination for existing buildings in the aforementioned zone.

It adds, furthermore, that the regional legislature, by means of the aforementioned Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021, expanded the scope of the aforementioned derogation on changes of use, providing that "[t]he rules referred to in Article 8-bis [of Apulia Regional Law No. 33 of 2007] shall likewise apply to interventions not yet carried out or in the process of being carried out [...]”.

The referring court further reports that the Municipality had subsequently adopted a second resolution – No. 11 of February 28, 2022 – by which, in order not to aggravate the urban planning burden, it had specified that the aforesaid changes of use were permitted only for existing properties and not also for interventions not yet carried out or in the process of being carried out. However, this "selective” choice had been censured by the judgment of the Council of State, Section Four, No. 7179 of August 20, 2024, which, in confirming the first-instance ruling rendered by the same TAR for Apulia, Section Three, No. 3 of January 2, 2024, had "strictly” interpreted the aforementioned 2021 amendment, ruling that the municipality "has no power to make distinctions within the same homogeneous zone, given the clarity of the statutory text which mandates uniform treatment.”

Lastly, the referring Tribunal specifies that, in compliance with that ruling, the Municipality of Bari adopted a third resolution, No. 2 of January 13, 2025, which indiscriminately prohibits the change of destination in the zone in question for both existing buildings and interventions not yet carried out or in the process of being carried out, on the basis of which it then issued the rejecting measure challenged in the main proceedings.

4.– It is therefore within this described context that the judge *a quo* deemed it necessary to refer the matter to this Court to raise, with reference to the aforementioned parameters (Articles 3, 9, 97, and 118 of the Constitution), multiple questions of constitutional legitimacy regarding the aforementioned "Article 8-bis of Apulia Regional Law No. 33 of 2007, as amended by Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021,” to the extent that, "by extending the applicability of the regulations also to interventions not yet carried out or in the process of being carried out, it does not provide for the power of Municipalities to regulate the recovery of the existing building stock in a differentiated manner compared to new constructions within the same zone.”

5.– Regarding relevance, the referring court emphasizes "[...] the direct nexus of preliminary prejudice between the challenged norm, the general planning act, and the final denial,” since, under current legislation, the Municipality would be "compelled to deny the change of use for the existing building because the zone is already saturated, even if only due to new constructions.” By effect of the challenged provisions, the ascertained shortage of facilities attributable to the new properties would in fact have automatically conditioned even the change of intended use of existing buildings. The order therefore notes that if this Court were to remove the aforementioned "bond of inseparability, the scenario would change radically,” since "the declaration of unconstitutionality would sweep away, due to derivative invalidity, also Council Resolution No. 2 of 2025 (a merely implementing act) and, consequently, the challenged denial [...]” and "the annulling effect would determine the re-expansion of the planning will already expressed by the Entity in the preceding Resolution No. 11 of 2022 [...]”. Furthermore, "[...] the denial [...] would in any case become illegitimate for excess of power,” since "once the obligation of uniform treatment has lapsed, the ascertained lack of standards (referred to the new) could no longer logically justify the denial for the existing, rendering the measure flawed due to contradiction and a lack of preliminary investigation.” Therefore, the removal of the norm would be "the sole necessary and sufficient step for the satisfaction of the applicant party's judicial claim, which saw its permit denied [...] for an abstract legal constraint that unreasonably bound the fate of its building to that of properties yet to be constructed.”

At the same time, the referral order rules out the possibility of carrying out a constitutionally oriented interpretation of the challenged provisions, arguing that "the unambiguity of the textual data and the clear systematic purpose of the 2021 reform (which stripped municipalities of the choice regarding the type of intervention) preclude an adapting interpretation, making the constitutional incident the only available remedy.” In this regard, the TAR observes that, on a literal level, the challenged Article 27, paragraph 1, states that the derogations "shall likewise apply” to new constructions, whereas "the use of the present indicative mood (‘shall apply’), devoid of auxiliary or modal verbs granting discretion (such as ‘may apply’ or ‘the Municipality may apply’), constitutes the first index of the text’s rigidity.” The use of the adverb "likewise” would render the literal data insurmountable, establishing "an automatic and necessary legal assimilation bond between the regime of the existing heritage and that of new constructions.”

The teleological level would confirm the unambiguity of the interpretation, inasmuch as the regional law intended to attribute to municipalities the power to identify the "place” where to apply the derogation (the demarcation of the mixed zone), while stripping them of the power to decide "what” to authorize (the type of intervention), "the legislature having therefore made an upstream choice that inextricably links the fate of building recovery to that of new expansions.” Such a "rigorous reading” of the norm would constitute *ius receptum*, given that the Council of State (in the aforementioned judgment No. 7179 of 2024) censured the alternative "selective” interpretation under which municipalities could sever the fate of existing buildings from that of new buildings, authorizing the change of use for the former and not for the latter. The aforementioned ruling of the Council of State would indeed have caused an "administrative consolidation effect,” inducing the Municipality to introduce "the aforementioned generalized prohibition,” with the consequence that, if that Tribunal were to "attempt a ‘selective’ reading, it would compel the Administration to violate a jurisdictional precept of the Council of State, creating an inadmissible practical conflict of judgments.”

6.– Regarding non-manifest unfoundedness, the order assumes that "the norm” would violate the principle of equality referred to in Article 3 of the Constitution, inasmuch as "objectively different and indeed opposite factual situations—the recovery of the existing heritage and new construction—are treated in an identical manner.” The normative assimilation of two irreconcilable phenomena would render "the provision intrinsically unreasonable and dystonic with respect to its own *ratio legis*, aimed at promoting ‘urban regeneration’.”

Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021 would also conflict with the canons of reasonableness and proportionality, clashing with the "fact of reality [...]” according to which "the reuse of an existing volume has a zero impact in terms of land consumption, whereas new construction entails an irreversible alteration of the environmental matrix.” According to the referring court, in equating the recovery of the existing with new construction, the "challenged norm betrays the very logic of Apulia Regional Law No. 33 of 2007, entitled ‘Measures for recovery and reuse’, as it ends up paralyzing precisely the activity that the law intended to favor, preventing the achievement of the preset purpose” and causing a "short-circuit between the legislative end (incentivizing reuse) and the chosen instrument [...]”. The "restrictive measure (the total prohibition)” would furthermore not be indispensable to protect standards, since if "the prohibition is the only way not to consume land and services; for the existing, on the other hand, the urban planning burden (which is functional, not physical) can be managed through equalization instruments.” Ultimately, the sacrifice imposed on the private individual and the public interest would be "excessive and counterproductive,” unjustly sacrificing private economic initiative, environmental protection, and territorial regeneration. In other words, the "bond of inseparability” would be "a disproportionate measure because it prevents any balancing of the values at stake.”

6.1.– The "challenged provision” would, furthermore, conflict with the constitutional protection of landscape and environment (Article 9 of the Constitution). Indeed, the automatism of the norm would, on the one hand, produce "an evident effect of heterogenesis of ends,” because, by "blocking the transformation of the existing,” it would shift housing demand toward vacant or peri-urban areas, "indirectly incentivizing that building pressure on virgin land which Article 9 of the Constitution instead mandates to limit”; and, on the other hand, it would condemn existing properties to "an irreversible functional obsolescence,” causing "‘urban voids’ [...] that wound the cityscape [...]”. Essentially, by imposing a "petrification” of use functions in mixed zones, the "challenged norm” would prevent "that active maintenance of the territory which is the very precondition of landscape protection, transforming the mandatory planning activity into a blind constraint that, far from protecting the environment, accelerates its decay.”

6.2.– In another respect, "the norm” would unjustifiably compress the "planning powers vested in the Municipality.” If the "principle of vertical subsidiarity pursuant to Article 118 of the Constitution mandates that management choices be close to the territory,” in the specific case the challenged "automatism” would render the local entity "insensitive to the micro-urbanistic reality.” Therefore, the provisions in question would prevent the same entity from "appreciating the specificity of the single local situation (the single building, the single street), which only the administration of proximity is able to evaluate.”

6.3.– Furthermore, the principle of good administration of public administration (Article 97 of the Constitution) would be violated, in relation to the objectives of reusing the existing building stock. In an attempt to stem the new settlement burden, "the norm” would indeed end up "precluding *a priori* even those positive opportunities—such as the functional recovery of a degraded and vacant office building—which, if evaluated concretely by the administration of proximity, would realize the public interest in regeneration, without any environmental cost.”

7.– In conclusion, the order specifies that it does not intend to "solicit a ruling that somehow substitutes itself for regional urban planning policy evaluations, for example by expunging from the legal system the possibility [...] to authorize the change of use also for new interventions,” but rather intends solely to challenge, as detrimental to the interests of the community and contrary to the Constitution, the "automatism introduced by the cited norm.” The requested ruling would therefore be pre-ordained to allow a "selective application of the urban planning derogation,” so as to restore to the local entity the power and duty to plan, without unreasonable automatisms.

8.– Having intervened in the proceedings, the Apulia Region preliminarily objected to the inadmissibility of the deduced "question” (correctly: of the deduced questions).

In its view, the referring court fell first into an "aberratio ictus,” since Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021 does not amend "in any way Article 8-bis of Regional Law No. 33/2007, limiting itself to extending its effects to another factual scenario.” The object of the questions would therefore be identified "in an imprecise and misleading manner,” since the censure "is directed at a provision (the repeatedly cited Article 8-bis of Regional Law No. 33/2007) that does not produce the harmful effects complained of by the [...] referring court.” The effect deemed constitutionally illegitimate would in fact be attributable "to the choice made by the legislature with Article 27, paragraph 1, of Regional Law No. 51/2021, which extended the scope of application of the derogation also to new constructions.”

In any event, the "challenged regional provisions” would not contemplate "that automatism or that bond of inseparability that the TAR of Bari read into them and from which it derived the challenges of unconstitutionality,” the regional legislature having only intended "to expand the instruments of territorial governance and use available to municipalities,” and never to restrict or limit the "discretionary power belonging to them in the exercise of the territorial planning function.” Indeed, Article 27 of Apulia Regional Law No. 51 of 2021 should be read "in adherence to the *ratio legis* underlying the cited Article 8-bis,” which "certainly does not compel Municipalities to make use of the possibilities provided therein, as emerges from the very letter of the law: ‘... municipalities may permit changes of intended use [...]’.” Far from binding the municipality's discretion, the aforesaid provisions establish that such entity "may or may not make use of the possibility provided therein, and, in the event that it proceeds to identify the areas in which to permit changes of intended use, it may well modulate decisions in the manner and to the extent it deems appropriate, convenient, and best suited to the ‘criteria’ imposed by the norm itself.” The referring court's interpretive assumption is refuted by the use of the term "likewise,” which would merely have the meaning of extending the applicability of Article 8-bis to the factual scenarios of the cited Article 27 (new buildings), "keeping their content and characteristics unaltered, which are and remain characterized by full respect for the discretion of municipalities, which ‘may’ (and not must) permit changes of intended use.” It would thus be evident that the judge *a quo* "erroneously exercised its power/duty to seek the constitutionally oriented interpretation of the challenged provision [...]”. Furthermore, "the question” would appear directed "not to resolve a doubt of constitutional legitimacy, but to receive from this Sovereign Court an improper endorsement of a specific interpretation of the challenged provision, which is up to the court on the merits [...]”

Therefore, the "question raised” would be "inadmissible for lack of reasoning on non-manifest unfoundedness, for failure to attempt an interpretation conforming to the Constitution, as well as for the improper use of the tool of constitutional review to endorse a certain interpretation of the challenged provision.”

Lastly, the Region objects that the judge *a quo* nevertheless "started from a deficient weighing of the overall regulatory framework” such as to compromise the logical-argumentative path underlying the referral.

8.1.– Moving on to the individual questions, the Region first denies the violation of Article 3 of the Constitution, since, given that the alleged constraint does not exist, the norm does not contradict the purpose of the regional law, which is to "make available to municipalities flexible and additional instruments for the use and management of the territory, in order to favor the reuse and recovery of the existing building stock and energy saving” and "not to restrict or limit discretion itself, except in compliance with the guiding criteria indicated by paragraph 2 of Article 8-bis of Regional Law No. 33/2007 [...]”. Moreover, it does not clearly emerge whether the referring court intended to challenge the alleged link of "‘necessary, bound, and automatic’ uniformity of treatment between the two factual scenarios of ‘recovery of the existing heritage’ and ‘new construction’” or whether, instead, it wanted to "hypothesize the unconstitutionality even of the sole provision of Article 27 of Regional Law No. 51/2021, considered in itself [...]”. This would confirm the inadmissibility of the question due to the absence of the "necessary requirements of specificity, clarity, and determinacy” and for lack of adequate reasoning. Furthermore, without prejudice to the aforementioned objections of inadmissibility, the regional defense highlights that, in light of a correct and complete reconstruction of the regulatory framework, Article 27 of Apulia Regional Law No. 51 of 2021 is not dystonic with the purposes pursued by Apulia Regional Law No. 33 of 2007, since, while referring to interventions not yet carried out, it requires that they already be provided for by subdivision plans approved and subject to agreements as of the date of entry into force of the law. Consequently, it adds, in stating that the reuse of an existing volume has a zero impact in terms of land consumption, whereas new construction entails an irreversible alteration of the environmental matrix, the referring court "misrepresents the scope of the norms in question, given that the new constructions in question (id est those provided for by subdivision plans approved and subject to agreements as of the date of the law) are not permitted or authorized by virtue of the challenged norms, but by virtue of the implementing planning instruments already approved and subject to agreements, and are therefore inherently feasible regardless of Article 27 of Regional Law No. 51/2021.” The deduced defects of necessity and adequacy would also be based on an erroneous belief of the judge *a quo*, since any lack of standards would in any case be an obstacle to any decision requiring minimum quantities of public spaces and services, whereas, where the prerequisites exist, "municipalities can well modulate decisions in a differentiated manner and to a different extent in implementation of the regional norms examined, because they are not obliged to regulate different factual scenarios in a uniform and egalitarian manner.” It follows that, even if decisions on the applicability of the challenged provisions require considering the availability of standards, this would not bind local entities in the sense believed by the referring court and would not translate into an excessive sacrifice either for private economic initiative or for the public interest.

8.2.– Regarding the deduced violation of Article 9 of the Constitution, the Region, while reiterating the non-existence of the alleged automatism, notes that the same provisions do not in any case affect the landscape and the environment, given that Article 8-bis, paragraph 2, of Apulia Regional Law No. 33 of 2007 "expressly refers to the criteria of environmental compatibility, energy saving, healthiness, hygiene, accessibility, which must imbue and inform [...] the [...] widely discretionary decisions of the Municipality” and Article 1, paragraph 1-bis, of the same regional law establishes that the "provisions [...] are implemented in compliance with the provisions of Legislative Decree No. 42 of January 22, 2004 [...] and of the Regional Territorial Landscape Plan (PPTR) [...]”; nor, moreover, "is environmental and landscape restrictive legislation, *ex se* effective and binding, [...] in any way derogated or evaded.” Thus, the challenged norm "can well be interpreted in the sense that the interventions and variations deriving from its application must conform to said restrictive legislation.”

8.3.– Lastly, the Region deems the deduced violation of Articles 97 and 118 of the Constitution (with reference to the principles of good administration and subsidiarity) to be non-existent. Far from compressing the planning powers of the municipality, the challenged provisions would instead recognize "the power (positive, active, expansive, and discretionary) of the Municipal Council to adopt resolutions indicating parts of the territory in which to permit the change of intended use, albeit in compliance with the indicated prerequisites, and not abstract or generalized or total prohibitions, nor restrictive measures.”

9.– In entering an appearance in the proceedings with a specific brief, the applicant in the main proceedings observes that the challenged norm could and should be interpreted in a constitutionally oriented manner, "in the sense of not imposing a necessary and indiscriminate assimilation between the existing building stock and interventions to be made, nor of precluding the Municipality, in the exercise of its planning function, from operating a differentiated regulation within the same urban planning zone, where this is required by the prerequisites set forth by the law.” The challenged Article 27 of Apulia Regional Law No. 51 of 2021 did not amend the text of Article 8-bis, nor did it affect the structure of the original provision or the respective application prerequisites, but merely extended the scope of application of the aforementioned provision, "which to this day attributes to the Municipality a power—and not a duty—to permit the change in question [...]”. The adverb "likewise” used in Article 27 itself has solely the effect of "including—in addition to that originally provided—a further category of interventions within the respective scope of application,” but, with respect to these further interventions, "the Municipality nevertheless remains the holder of a discretionary power (cf. ‘may’).” This "expresses neither a precept of total homogenization between the aforesaid categories nor does it strip the Municipality of its power of assessment set forth by paragraph 2 of Article 8-bis.” Therefore, more coherently, the challenged Article 27 could be read "in the sense of attracting also interventions not yet carried out or in the process of being carried out within the scope of the regulations of Article 8-bis, while nevertheless leaving unchanged the persistent necessity of the council resolution provided for by paragraph 2 and, with it, the scrutiny based on the criteria expressly indicated by the regional law.” From this perspective, the cited Article 27 would impact "on the *an* of the abstract applicability of the regulations to a broader category of interventions,” but would not eliminate "the municipal power of assessment regarding the *quomodo* of its concrete territorial application.”

The brief further rules out that the isolated ruling of the Council of State cited by the referring court constitutes "living law,” observing that, consequently, this Court can proceed directly to the adapting interpretation, "also for the purpose of establishing the relevance of the invoked constitutional parameters.”

9.1.– Lastly, the applicant in the main proceedings notes that, should the interpretation put forward by the referring court instead be embraced, the deduced questions would be well-founded.

From this perspective, the provisions under examination would conflict, first of all, with the principles of equality, reasonableness, and proportionality referred to in Article 3 of the Constitution, since "ontologically different situations—namely the recovery and reuse of the existing building stock and new construction—are indiscriminately subjected to the same regulation, in manifest dystonia with the ratio pursued by the regional legislature.” Indeed, "in the first case, there is no increase in the urban planning burden, unlike the second, which can be the harbinger of different impacts on territorial equilibria.” Such illegitimate equalization, by compelling the municipality to "evaluate as an un-separable *unum* the building-urban planning compatibility of the respective factual scenarios,” would place an insurmountable obstacle in the pursuit of the objectives declared by the regional provisions. The means chosen by the regional legislature—"id est, the inseparable nexus between existing buildings and new construction”—would sacrifice "in a disproportionate manner the recovery of the territory, in the absence of any vulnus to the urban planning equilibrium.”

The regional regulations would also conflict with Article 9 of the Constitution "to the extent that they entail undue and illegitimate obstacles to the objectives of land containment and regeneration of the existing built fabric, which are a postulate of the latter.”

The nexus of inseparability denounced by the judge *a quo* would, finally, be "the cause of unreasonable administrative outcomes, conflicting with the constitutional requirement of coherence and non-contradiction of administrative action.” In the specific case, the administration would be "compelled to deny the change of intended use for the existing for reasons pertaining exclusively to the urban planning compatibility of new constructions.” This would result in a compression of the powers of the municipality, the representative entity closest to the citizen, in violation also of the principle of subsidiarity inferable from Article 118 of the Constitution. The challenged legislation would indeed neutralize a fundamental segment of the planning function, namely "that consisting in the evaluation and consequent modulation of the treatment to be reserved for the different factual scenarios of recovery of the existing building fabric and new construction.”

Therefore, in the alternative, for the eventuality that the hermeneutical option of the referring court were to be embraced, the applicant in the main proceedings asked this Court to uphold the questions raised and, consequently, to declare the challenged provisions constitutionally illegitimate.

10.– In view of the public hearing, the same applicant filed a further brief, insisting on the conclusions already formulated.

Considered in Law

11.– The TAR for Apulia, Section Three, by the order indicated in the heading, doubts the constitutional legitimacy of Article 8-bis of Apulia Regional Law No. 33 of 2007, "as amended by Article 27, paragraph 1” (correctly: read in conjunction with Article 27, paragraph 1), of Apulia Regional Law No. 51 of 2021, to the extent that, "by extending the applicability of the regulations also to interventions not yet carried out or in the process of being carried out, it does not provide for the power of Municipalities to regulate the recovery of the existing building stock in a differentiated manner compared to new constructions within the same zone.”

11.1.– The first provision (Article 8-bis of Apulia Regional Law No. 33 of 2007) establishes that "[i]n order to promote the reuse and recovery of the existing building stock, municipalities may permit changes of intended use [...] of lawfully constructed properties [...] in homogeneous territorial zones designated by the general urban planning instrument for mixed use [...]” (paragraph 1), subject to the "approval of a Municipal Council resolution” (paragraph 2) which, according to criteria of environmental compatibility and urban planning functionality, indicates the parts of the territory where changes of use are to be permitted, provided that "the minimum quantities of public spaces reserved for collective activities, public greenery, and parking provided for the new destination [...]” are ensured, as well as "compliance with current regulations on safety, hygiene, healthiness, energy saving, and accessibility” (paragraph 2, letters a and b).

The second provision (Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021) instead states that "[t]he rules referred to in Article 8-bis of Regional Law No. 33 of November 15, 2007 [...] shall likewise apply to interventions not yet carried out or in the process of being carried out, provided for by subdivision plans approved and subject to agreements, as of the date of entry into force of this law,” thereby extending the application of Article 8-bis—which is in itself circumscribed to lawfully constructed buildings—to these latter interventions.

11.2.‒ According to the referring court, based on the letter and logic of the amendment, as well as the aforementioned Council of State judgment No. 7179 of 2024 (confirming TAR Apulia, Section Three, judgment No. 3 of 2024 annulling the—different—Resolution of the Municipality of Bari No. 11 of 2022), municipalities could not make a selective choice admitting changes of use only on lawfully constructed properties and not also for those indicated by Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021.

11.3.‒ In light of this hermeneutical option, the provisions under examination would first violate Article 3 of the Constitution (principles of reasonableness and proportionality), since objectively different factual situations, such as the recovery of the existing heritage and new construction, would be treated identically, preventing any balancing of the values at stake and betraying the very objective of recovering the existing pursued by the regional law.

11.4.– Secondly, they would conflict with Article 9 of the Constitution, precluding functional recovery in saturated zones and thereby favoring expansion toward vacant or peri-urban areas, with the consequent erosion of the environmental matrix and the hindrance of the active maintenance of the territory, which is a precondition for landscape protection.

11.5.– Lastly, they would violate Articles 97 and 118 of the Constitution (with reference to the principles of good administration of public administration and subsidiarity), as they would not allow municipal entities to appreciate the specificity of the single local situation, compromising *a priori* their respective planning functions.

11.6.– The Apulia Region, intervening in the proceedings, contested the reading of the regulatory framework put forward by the referral order and pointed out the inadmissibility on multiple grounds and the unfoundedness of the deduced challenges.

The applicant in the main proceedings in turn contested the hermeneutical option assumed by the judge *a quo*, putting forward a different, constitutionally oriented interpretation of the challenged provisions. Only on the hypothesis that the referring court's interpretive premise were to be embraced, did it then request, in the alternative, that the proposed questions be upheld.

12.– As a preliminary matter, the objections of inadmissibility raised by the intervener must be examined.

12.1.– First, the regional defense argues the inadmissibility of the questions due to *aberratio ictus*, observing that Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021 does not amend Article 8-bis of Apulia Regional Law No. 33 of 2007, but limits itself to extending its effects, through a "distinct and autonomous norm,” to another factual scenario. The object of the questions would therefore be identified in an "imprecise and misleading” manner, since the effect deemed constitutionally illegitimate would not be attributable to the cited Article 8-bis of Apulia Regional Law No. 33 of 2007, but rather "to the choice made by the legislature with Article 27, paragraph 1, of Regional Law No. 51/2021, which extended the scope of application of the derogation also to new constructions.”

This objection misses the mark.

While it is true that, contrary to what the referring court claims, the cited Article 27, paragraph 1, does not introduce any amendment to Article 8-bis, it is equally clear that the deduced challenges specifically target the combined provisions of the aforementioned regional norms, i.e., the norm that the judge *a quo* derived from them through interpretation.

12.2.– Secondly, the intervener objects to the inadmissibility of the questions raised for failure to attempt an interpretation conforming to the Constitution.

This objection must also be rejected.

The jurisprudence of this Court is indeed firm in affirming that "[f]or the admissibility of the incidental question, it is sufficient that the referring court has reasoned [...] on the reasons why an adapting interpretation is impracticable, whereas whether such reasons are correct or not is a matter pertaining to the merits (judgment No. 23 of 2025, point 2.1 of the Law Considered, and further citations therein; in the same sense, even more recently, judgment No. 144 of 2025, point 2.1 of the Law Considered)” (judgment No. 10 of 2026, point 13.1.2.).

And the referral order takes ample care to verify the existence of room for a constitutionally oriented interpretation, concluding that "the unambiguity of the textual data and the clear systematic purpose of the 2021 reform [...] preclude an adapting interpretation, making the constitutional incident the only available remedy.”

12.3.– For yet another profile, the regional defense objects to the inadmissibility of the questions because they were raised to obtain an "improper endorsement of a specific interpretation of the challenged provision, left to the court on the merits” and not to resolve a doubt of constitutional legitimacy.

This objection must also be dismissed, since the referral order itself specifies that it does not intend to ask this Court to solve "a hypothetical jurisprudential conflict,” considering the interpretive option followed by the Council of State to be "the only one effectively viable,” but rather to submit to the review of constitutional legitimacy the "‘living law’ that has been extracted from the text, the rigorous application of which—imposed by the clear letter of the law—is contrary to the Constitution [...]”. The judge *a quo* therefore expresses no doubts about the unambiguity of this reading, which it traces directly back to the textual data that the Council of State allegedly corroborated.

12.4.– For the considerations set forth above, the objections of inadmissibility of the questions raised for "deficient weighing of the overall regulatory framework,” such as to compromise the logical path underlying the referral, and for lack of reasoning on non-manifest unfoundedness, are likewise unshareable, since the order, even with the noted inaccuracy (point 12.1.), fully places the questions within the reference regulatory framework. And, as stated, any interpretive errors pertain to the merits.

12.5.– Lastly, the regional defense objects to the inadmissibility, due to the absence of the "necessary requirements of specificity, clarity, and determinacy,” of the question relating to Article 3 of the Constitution, noting that it does not clearly emerge whether the referring court intended to challenge the alleged link of "‘necessary, bound, and automatic’ uniformity of treatment between the two factual scenarios of ‘recovery of the existing heritage’ and ‘new construction’” or whether instead it wanted to "hypothesize the unconstitutionality even of the sole provision of Article 27 of Regional Law No. 51/2021, considered in itself [...]”.

This objection is also unfounded since, as already specified in point 12.1., the questions raised concern the combined provisions of the regional norms, under the interpretation adopted by the referral order. In any event, the challenge regarding Article 3 of the Constitution appears formulated in a clear and comprehensible manner, for the purpose of contesting both the identical treatment reserved to "[...] objectively different factual situations [...]”, such as the recovery of the existing heritage and new construction, and the betrayal of the specific purpose pursued by Apulia Regional Law No. 33 of 2007.

13.– For the sake of completeness, it must be specified that, as noted by the applicant in the main proceedings, the aforementioned Council of State judgment No. 7179 of 2024—rendered in litigation brought by a party different from the applicant in the main proceedings for a different property and relating to municipal resolution No. 11 of 2022—does not rise to the level of "living law.” Indeed, as this Court has also recently affirmed, "the isolated jurisdictional precedent of the Council of State and the reference to a single precedent on the merits by the ordinary court do not give rise to that consolidated jurisprudential interpretation, because it is reiterated and uniform, capable of constituting a living law [...]” (judgment No. 101 of 2023, point 4 of the Law Considered; on this point, see also judgments No. 162 of 2025, points 3.2 and 3.3 of the Law Considered; No. 73 and No. 38 of 2024, respectively at points 3.1 and 8.4 of the Law Considered).

14.– Moving on to the merits of the questions, we must start from the interpretation of the challenged provisions that underlies the referral order.

14.1.– In the reconstruction of the judge *a quo*, by effect of Article 8-bis of Apulia Regional Law No. 33 of 2007 and Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021, municipalities, where they decide to permit changes of intended use abstractly admissible pursuant to Article 8-bis itself in the "mixed zones” of planning instruments, would be "automatically” bound to do so also in the cases indicated by Article 27, paragraph 1, so that they could not "selectively” sever the fate of lawfully constructed properties from that of interventions not yet carried out or in the process of being carried out.

This would be inferable, first of all, from the letter of Article 27, paragraph 1, due to the use of the present indicative mood ("shall apply”) and the adverb "likewise” (establishing, according to the referring court, "an automatic and necessary legal assimilation bond between the regime of the existing heritage and that of new constructions”), but would be confirmed also on a teleological level, due to the regional choice to tie the fate of building recovery to that of new expansions.

Following this interpretation, in effect, if a municipality intended to permit changes of use only for existing buildings, but not for those not yet carried out or in the process of being carried out, provided for by approved subdivision plans subject to agreements (to avoid, for example, as in the present case, shortages of urban planning standards), it would, by virtue of the aforementioned automatism, be compelled to adopt a resolution prohibiting the change for both the former and the latter categories of properties. Thus, the critical issues found for the changes of use of properties not yet carried out or in the process of being carried out, provided for by approved subdivision plans subject to agreements, would automatically spill over onto the admissibility of changes of use of lawfully existing buildings, even if the mere realization of the latter presented no critical issues.

15.– The interpretation of the challenged provisions adopted by the referring court is, however, unshareable.

15.1.– Indeed, as correctly observed by the Apulia Region and by the applicant in the main proceedings, Article 27, paragraph 1, of Apulia Regional Law No. 51 of 2021, in providing that "[t]he rules referred to in Article 8-bis of Regional Law No. 33 of November 15, 2007 [...] shall likewise apply to interventions not yet carried out or in the process of being carried out, provided for by subdivision plans approved and subject to agreements, as of the date of entry into force of this law,” merely extends the applicability of the aforementioned Article 8-bis—which is in itself circumscribed to lawfully constructed properties—to the various factual scenarios mentioned above. From the perspective of literal exegesis, this implies that, contrary to what the referring court believes, the same "power,” recognized to municipalities, to permit or deny changes of intended use for lawfully constructed properties, must "likewise” refer to properties in the process of being carried out or yet to be realized, already contemplated by the aforesaid executive plans, with the consequence that, even with reference to these different types of properties, municipalities may discretionarily decide whether or not to permit the aforesaid changes of use, regardless of the decision made for properties already lawfully existing.

In other words, as noted in particular by the defense of the applicant in the main proceedings, Article 27 impacts only "on the *an* of the abstract applicability of the regulations to a broader category of interventions,” but does not eliminate "the municipal power of assessment regarding the *quomodo* of its concrete territorial application.” In this sense, municipalities are not precluded, in the exercise of their planning function, from differentiating the treatment of the two factual scenarios according to the specificity of the contexts, in compliance with the criteria of environmental compatibility and urban planning functionality provided by the aforesaid Article 8-bis.

15.2.– The literal interpretation just set forth is corroborated by the teleological one.

The types of properties object of the two provisions are heterogeneous and there is no reason to compel municipalities to perform a single evaluation that inextricably encompasses them. Changes of use of lawfully constructed properties allow, in fact, the realization of the *ratio* of reuse and recovery of the building stock expressly indicated in Article 8-bis of Apulia Regional Law No. 33 of 2007, unlike changes of use of properties yet to be realized or in the process of being realized, which, even where already contemplated by approved subdivision plans subject to agreements, are, by definition, incapable of ensuring the aforementioned purposes. Furthermore, the extension of the derogation for changes of use to these latter properties necessarily impacts the urban planning burden and standards. Consequently, the obligation of a unitary decision on the applicability of the derogation could induce municipalities not to admit changes of use of the existing merely because of the shortage of standards that would be determined by extending the derogation to properties yet to be realized or in the process of being realized. From a systematic point of view as well, it therefore appears coherent that such entities exercise their assessments without being bound to an automatic uniformity of regime between the different types, but taking into account the different nature of the situations considered. Moreover, in justifying its interpretation on a teleological level, the referring court limits itself to stating that the regional legislature "made an upstream choice that inextricably links the fate of building recovery to that of new expansions.” However, far from revealing real systematic reasons, such a statement appears uniquely the consequence of the erroneous meaning that the judge *a quo* attributes to the adverb "likewise,” deeming it capable of establishing "an automatic and necessary legal assimilation bond between the regime of the existing heritage and that of new constructions,” when instead it merely indicates the extension of the derogation to interventions not yet carried out or in the process of being carried out.

16.– In conclusion, the challenged provisions, as more correctly interpreted in the terms set forth above, i.e., in the sense that municipalities may exercise their planning choices regarding changes of use (distinguishing between lawfully constructed properties and interventions not yet carried out or in the process of being carried out provided for by subdivision plans approved and subject to agreements as of the date of entry into force of Apulia Regional Law No. 33 of 2007), without being bound by automatisms imposing the same treatment for all the aforesaid types, elude the doubts of constitutional legitimacy raised by the referring court.

First, they do not determine any violation of Article 3 of the Constitution, as they allow different situations to be treated differently, without bonds of inseparability or automatisms of any kind. Furthermore, the *ratio* of reuse and recovery underlying Article 8-bis of Apulia Regional Law No. 33 of 2007 is respected, without incurring any breach of the principles of reasonableness and proportionality, which, according to the constant jurisprudence of this Court, must be deemed prejudiced "when the existence of an intrinsic contradiction between the overall purpose pursued by the legislature and the norm expressed by the challenged provision is ascertained [...]” (judgment No. 186 of 2025, point 3.1 of the Law Considered; in these terms, judgment No. 13 of 2024, point 9 of the Law Considered). From the indicated perspective, municipalities may indeed discretionarily permit changes of use of existing properties even if they have decided to exclude them for those yet to be realized or in the process of being realized, provided for by subdivision plans approved and subject to agreements as of the date of entry into force of Apulia Regional Law No. 33 of 2007.

Secondly, the possibility of a broader reuse and functional recovery of properties already lawfully built, not conditioned by any evaluations on changes of use of those yet to be realized or in the process of being realized, avoids the feared conflict with Article 9 of the Constitution, preventing the erosion of the environmental matrix as a consequence of hypothetical building-urban planning expansion toward other areas, and guaranteeing, at the same time, the active maintenance of the territory which constitutes a specific precondition for landscape protection.

Lastly, the challenged provisions do not violate Articles 97 and 118 of the Constitution either (*sub specie* of the principles of good administration and subsidiarity), since the municipal planning function is adequately preserved, allowing municipalities to appreciate the specificity of the various local situations, in compliance with the constant orientation of this Court whereby "the municipal planning function falls within that core of administrative functions intimately connected to the recognition of the principle of municipal autonomy and cannot be compressed beyond measure by the regional legislature, to the point of denying it” (judgment No. 51 of 2025, point 5.1 of the Law Considered; in these terms, judgment No. 17 of 2023).

17.– For the reasons set forth above, all the questions raised are unfounded.

ON THOSE GROUNDS

THE CONSTITUTIONAL COURT

Declares unfounded the questions regarding the constitutional legitimacy of Article 8-bis of Apulia Region Law No. 33 of November 15, 2007 (Recovery of attics, porticoes, basements, existing buildings, and unauthorized public areas), read in conjunction with Article 27, paragraph 1, of Apulia Region Law No. 51 of December 30, 2021 (Provisions for the formation of the 2022 forecast budget and the 2022-2024 multiannual budget of the Apulia Region - Regional Stability Law 2022), raised, with reference to Articles 3, 9, 97, and 118 of the Constitution, by the Regional Administrative Court for Apulia, Section Three, by the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 7, 2026.

Signed:

Giovanni AMOROSO, President

Maria Alessandra SANDULLI, Author

Roberto MILANA, Director of the Chancellery

Filed in the Chancellery on October 6, 2026