Urban planning can be used for many things… but not to oppose a project that, politically, does not please. Or it must be done with great subtlety and a real argument in town planning law…

Opposing a project as a candidate must lead the candidate, once elected, to exercise great caution afterwards.

Certainly, implementing the candidate’s municipal project, by the mayor once elected, is not in itself, for this reason alone, an illegal taking of interests (see ici).

The fact remains that the new elected official must:

• 1/ take care of the rights acquired by everyone, in terms of withdrawal of administrative acts (which can in certain cases create rights) or termination of public contracts (see ici).
• 2/ take care to respect the rules of deportation in this area if there is also a personal interest in this area (see for example ici, To be and more this side).
• 3/ not use town planning law for reasons which have nothing to do with town planning, but which relate to its opposition in principle on other grounds. Otherwise he commits a rare, but magnificent “misuse of power”…

It is into this third and final trap that a mayor fell.

A company submitted a building permit, refused by this Vosges mayor.

This refusal was deemed illegal for several reasons, including this one which is still quite exceptional:

“8. Thirdly, the applicant produces a message published on social networks on February 23, 2020 by the future mayor of the commune, then a candidate in the municipal elections, calling into question the advisability of the project to create a nursing home. health by the company Les constructeurs du bois. He indicates that public health deserves the intervention of the public force, that he hopes that the municipality wishes to proceed with the purchase of the land to promote a municipal health center backed by a housing and commercial premises project, and that the municipal health center will be managed as part of the creation of a territorial community of health professionals. Given this message and the reason mentioned in the decision to refuse a building permit, it was taken for a reason unrelated to town planning law and is therefore tainted by a misuse of power.”

Let us point out that the mayor could have created a health center of his own, or even found in certain cases other reasons to try to expropriate the property in question. But refusing a building permit for reasons relating to one’s political project without a reason based on town planning law is still a misuse of power in its chemically pure state. It’s rare.

Clarification that the judgment rendered on this subject by the CAA of Nancy is also interesting, in terms of the interest in acting of representatives of commercial companies:

« 2. Under the terms of Article L. 123-9 of the Commercial Code: “The person subject to registration cannot, in the exercise of his activity, oppose either third parties or public administrations, who may however do so. prevail, the facts and acts subject to mention only if the latter have been published in the register. / In addition, the person subject to the filing of acts or documents annexed to the register may only oppose them to third parties or administrations if the corresponding formality has been carried out. However, third parties or administrations may rely on these acts or documents. / The provisions of the preceding paragraphs are applicable to facts or acts subject to mention or filing even if they have been the subject of other legal publicity. However, third parties and administrations who had personal knowledge of these facts and acts cannot rely on it. » Under the terms of article L. 210-9 of this code: » Neither the company nor third parties can, to evade their commitments, rely on an irregularity in the appointment of the people responsible for managing, administer or direct the company, when this appointment has been regularly published. / The company cannot rely, with regard to third parties, on the appointments and terminations of functions of the persons referred to above, as long as they have not been regularly published. “. It follows from these provisions that, upon his appointment, a corporate officer is vested with the broadest powers to act on behalf of the company, independently of the publication of his appointment in the trade and companies register.”

Source :

CAA of Nancy, November 21, 2024, Société Les constructeurs du bois, n°22NC02197