"Unacceptable remedy," no suspension of demolition for Isola Fiorita

The "extraordinary remedy" invoked for the "Isola Fiorita" was unsuccessful. The Council of State rejected the request to revoke its own order denying the suspension of the demolition order issued by the Municipality of Casamicciola, after a similar rejection by the Regional Administrative Court (TAR). The case of the complex on Via Eddomade, owned by Mario Lettieri but formerly owned by the Calise family, remains suspended until the TAR's ruling on the merits, or perhaps even beyond . The panel of the Seventh Section accepted the arguments of the defense attorneys representing the Municipality of Casamicciola, Francesco Mazzella and Stanislao Giaffreda .

The concise order highlights the absence of the invoked error: "The motion for revocation is motivated by the circumstance that the Council of State's precautionary order of April 16, 2025, erroneously interpreted the SCIA of October 7, 2022, as having included excavation for the construction of the ground floor and completion of works on the first floor. The panel notes, however, that the aforementioned order does not contain the assertion that the SCIA of October 7, 2022, would have included excavation for the construction of the ground floor and completion of works on the first floor. Therefore, there is no factual error that requires revocation. The motion for revocation must therefore be declared inadmissible." Finally, it specifies: "It remains firm that the appellant may request an expedited scheduling of the hearing on the merits in the first instance."

THE "DAZZLING OF THE SENSES" The defense brief from the Municipality's lawyers argued that the request was completely groundless, with regard to the termination phase, and reaffirmed the legitimacy of demolition order no. 85 of November 7, 2024.

First, Lettieri's argument that the Council of State erred in rejecting the suspension was contested. He argued that "this alleged ruling is flawed by 'a mistake of the senses' since 'the interventions listed in the SCIA of October 7, 2022, in fact, did not include either the excavation for the ground floor... nor the completion of works on the first floor.'" However, as confirmed by the panel, no such factual circumstance emerges from an examination of the order itself.

Lettieri, the Entity's defense argues, "artfully reconstructs an alleged 'misinterpretation of the senses,' starting from a clearly erroneous reading of the precautionary order whose revocation he requests, with the sole purpose of establishing a factual revocation error and initiating another appeal." This thesis is refuted by the procedural documents, as the order is based on several factual and legal circumstances, listed in the brief: "a) the repeatedly reiterated deduction formulated by Attorney Lettieri (including in the introductory document of this proceeding) according to which the contested illegal works were intended to preserve the property pursuant to Article 73 of the RUEC and legitimacy in light of the failure to prohibit the SCIA; b) the objections raised on this point by the Entity according to which such works were not attributable to the SCIA, the purpose of which was different and unrelated to the provisions of Article 73 cited above." (not mentioned anywhere, see above) therefore correctly sanctioned with the restoration order; c) the works "reported" in the SCIA of 7.10.2022 could not be considered as works of a so-called conservative nature (the only works deemed admissible by consistent case law on properties subject to an amnesty application and not yet brought into compliance), with the consequence that the aforementioned SCIA did not constitute a suitable and legitimate prerequisite for continuing the works or "remediating" those subsequently carried out on the aforementioned property; d) the dispute always raised by the PA regarding the construction, subsequent to the submission of the amnesty application pursuant to Law no. 47/85, of the controversial works (excavation for the construction/completion of the ground floor and the completion works of the first floor) which "entailed a modification and transformation of the premises as a whole") and that the submission of the amnesty application did not authorize the interested party to complete, much less transform or expand the buildings subject to the request."

These are the facts underlying the Council of State's order, the defense emphasizes: "It therefore appears evident that the conclusion is entirely arbitrary, the result of an erroneous and "artful" representation of the procedural events, which are not supported by any of the procedural activities, and completely disconnected from any documentary or evidentiary evidence."

CORRECT READING The brief therefore presents the correct reading of the order. The Council of State, "in light of the documentation in the case, correctly held that 'the interventions in question' (those contested in point 1) of the demolition order, and not, as the applicant erroneously believed, those referred to in the SCIA of 7 October 2022, not even referenced in the body of the sanctioning order), 'entailed a modification and transformation of the site as a whole'." This is a "decisive and indisputable error of interpretation" committed by Lettieri.

It should be noted that the reference to the SCIA of 7 October 2022, submitted pursuant to Article 73 of the RUEC, was made "for the sole purpose of highlighting that even the works reported therein could not be carried out on the property subject to the amnesty application, unless it reiterated its unlawful nature, nor did the failure to prohibit the aforementioned SCIA serve to rectify the clearly unlawful works."

DEFECTS IN THE REVOCATION APPLICATION The brief then cites administrative jurisprudence "which recognizes the inadmissibility of the revocation application when the alleged factual error constitutes a point of dispute between the parties, upon which the provision has decided." And "the legitimacy of the interventions identified in Order No. 85/2025 regarding the SCIA of October 7, 2022 have been expressly contested and ruled upon by the Supreme Court, with the consequence that the application is inadmissible in this respect." The error "must also be immediately apparent and easily detectable, without the need for inductive arguments or interpretative investigations."

However, in the "Isola Fiorita" case, "there is no factual error resulting from an assumed misperception of procedural documents that are excluded or non-existent; the issue is absolutely controversial between the parties; there is no causal link between the erroneous assumption and the provision adopted; the alleged and contested error is not immediately apparent (indeed, one must follow the imaginative reconstruction made by the applicant)." A further reason for inadmissibility is the attribution of "the revocation defect to an alleged erroneous assessment of the procedural findings and the evidentiary material that would have led the Court to an error of judgment."

This was an unexpected circumstance, as the so-called "blurring of the senses," "i.e., the misrepresentation of procedural findings due to mere oversight, is not apparent when one complains of an alleged erroneous assessment of procedural findings or an anomaly in the logical process of interpreting the evidentiary material." The Municipality's lawyers also rejected Lettieri's further considerations, which were inadmissible because "there are detailed objections and criticisms never raised either in the introductory appeal, nor in the preliminary injunction phase at first instance, nor, ultimately, in the preliminary injunction appeal (nature of the works; date of their completion; alleged "incidental" rejection of the amnesty; classification of the so-called completion works). These new facts and criticisms could never constitute a so-called revocation error of fact, precisely because they were never raised either at first instance or at the preliminary injunction appeal phase."

THE CONSISTENCY AND CHRONOLOGY OF THE ABUSES These further inadmissible objections are however denied by the documentation in the file which proves the consistency and chronology of the abuses: «The excavation works for the construction of the ground floor were carried out after the application for amnesty pursuant to Law 47/85 and, specifically, in a historical moment included (to say nothing of other things) between 1986, 1991 and 2002, when the residence of the applicant's predecessor in title underwent a significant change of intended use from residential to commercial; Over the years, the property has undergone repeated evolutionary and innovative renovations (with increases in volume and surface area, changes in use from residential to commercial and, again, to residential), thus undergoing unlawful transformations that have distorted the original "compromised" state of the building as per Law No. 47/85. In light of the changes to the state of the building (in the absence of the procedure pursuant to Article 35), the demolition order is in any case legitimate and, rather than an incidental rejection of the (admissible) amnesty application, grants the appellant the opportunity to return to good standing, or to restore the original state of the building in order to obtain the asset of life, or a building permit through regularization. The completion works contested in the demolition order are innovative works compared to those set out in the original amnesty application, which are attributable to a genuine renovation of the illegal building. just as different and innovative are all the works carried out that one would like to refer to the SCIA of 07.10.2022".

Regarding the "infamous" SCIA, the municipal defense emphasizes "that, as proven in the documents (nor does the applicant provide the slightest evidence to the contrary), the SCIA of October 7, 2022, net of ownership of the property whose abuses constitute obligations propter rem, is aimed, in fact, at the execution of "newly" innovative works (restoration of residential use) on a property subject to an application for amnesty and on which volumetric increases were carried out after the submission of the amnesty application." And "therefore, in no way are the volumetric increases carried out over the years linked to the aforementioned SCIA."

LEGITIMATE DEMOLITION ORDINANCE In support of the legitimacy of the municipal order to restore the site to its original state, it is recalled that "after the application for building amnesty has been submitted and before the application is decided, the owner may not carry out any work to complete or expand the unauthorized building." Therefore, any further work carried out after the application for amnesty "must be considered unauthorized and a continuation of previous unauthorized construction activity."

In this specific case, it is further noted that "the excavation on the ground floor—contrary to what the opposing party claims—was specifically intended to increase the volume of that floor. Therefore, the applicant's claim is completely unfounded, as the assessment of the interventions carried out must be comprehensive and global. It is not possible to separate the violations for the purposes of their regularization, since an atomistic consideration of the individual interventions does not allow for an understanding of the functional connection between them and, ultimately, the true scope of the operation." Consequently, "the close connection/interdependence between the works 'compromised' in the original amnesty application and the subsequent ones (of an abusive nature) did not allow the municipal administration to grant a so-called partial amnesty (through the exclusion of the subsequently constructed violations)."

THE REQUEST FOR AMNESTY Finally, lawyers Mazzella and Giaffreda also argued that the conditions for granting precautionary protection were not met: "In this regard, it should be noted that the conditions relating to the 'periculum in mora' are also not met, nor has the appellant alleged 'serious' and 'irreparable' damage, since no concrete danger has been indicated that, during the time required to reach a decision on the appeal, serious and irreparable harm could result.

Indeed, it must be considered that the appellant merely requested the suspension of the contested act, arguing that the damage would be in re ipsa in light of the pendency of the amnesty application and that there would be no appreciable interest to the contrary, also considering that it would lead to the substantial dissolution of the object of the amnesty application before its fulfillment.

The erroneousness of the arguments is evident when considering that, in the case at hand, in relation to the contested Order, no "damage in re ipsa" appears to be concretely configurable, since the pendency of the amnesty application does not preclude the adoption of restorative measures for "different" interventions subsequent to the submission of the same. This damage is also nonexistent because "the failure to restore works certainly carried out after the submission of the amnesty application pursuant to Law No. 47/85 would certainly result in the declaration of inadmissibility of the aforementioned amnesty or, in any case, its rejection."

However, the demolition of the illegal structures would make the application admissible and admissible. In short, the Municipality's lawyers reiterated the lack of a revocation event (the alleged error) and, at the same time, "no new or different fact has emerged that would qualify the request as a new precautionary measure." They insisted on the rejection of the "request for the adoption of a precautionary measure precisely because it was not granted by either the first-instance judge or the appeals court." And so it was.