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Majoration de 30 % des droits à construire : le sénat propose d’abroger la loi

La loi n° 2012-376 du 20 mars 2012 a pour objet de majorer de 30 % les droits à construire qui résultent de l’application des règles des plans d’occupation des sols (POS) et des plans locaux d’urbanisme (PLU) afférentes au gabarit, à la hauteur, à l’emprise au sol et au coefficient d’occupation des sols. Le sénateur socialiste Philippe Kaltenbach a fait une proposition tendant à abroger la majoration des droits à construire. Il s’appuie sur plusieurs problèmes soulevés par la loi de mars. Notamment, il argumente sur le fait que cette majoration s’appliquera de fait sur l’ensemble du territoire d’une collectivité si, au 20 décembre 2012, celle-ci n’a pas pris de délibération contraire ou n’a pas mis à disposition la note d’information et de participation du public prévu par la loi. Il rappelle également que cette loi est en redondance avec le droit existant : la loi n° 2009-323 du 25 mars 2009 de mobilisation pour le logement et la lutte contre l’exclusion, dite loi MOLLE, a déjà introduit en 2009 un dispositif permettant une majoration des droits à construire par les communes. En outre, deux autres dispositifs existent et permettent d’appliquer au logement social et aux constructions à haute performance énergétique une majoration des règles de densité. Par ailleurs, il souligne que les zones A, B et C des plans d’exposition au bruit mais aussi des secteurs sauvegardés (lois montagne et littoral, zone de protection du patrimoine architectural, urbain et paysager) ainsi que des servitudes d’utilité publique se trouvent exclues du dispositif de la loi ce qui réduit sa portée. Le sénateur évoque aussi les risques de contentieux notamment par la note d’information, mise à la disposition du public décrivant les conséquences de la mise en place du nouveau dispositif. L’insuffisante précision de cette note pourrait faire courir un risque contentieux à la commune. La délibération prise par celle-ci et les modifications du plan local d’urbanisme qui en découleraient seraient susceptibles d’être attaquées sur le fondement d’une information insuffisante du public et les communes de taille modestes pourraient même se trouver dans l’incapacité d’organiser une telle information du public. Il est également souligné qu’elle permet aux communes membres d’une intercommunalité compétente en matière d’urbanisme de se désolidariser de l’intercommunalité en prenant une décision autonome sur l’application, ou non, de la majoration, faisant courir des risques sur les planifications urbaines existantes.

www.senat.fr/leg/ppl11-566.html

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