Madise this week filed an application with Supreme Court Chief Justice Villu Kõve, asking the Supreme Court to invalidate a 2023 regulation adopted by the Keila City Council that the chancellor of justice says has no legal basis.

Madise approached the Keila City Council in May this year and proposed bringing the regulation into line with the Constitution. Although the council said in its response that it agreed on the need to link agreements on covering costs to the circumstances of a specific detailed plan and to base any obligations imposed on a legal basis and justified considerations, the regulation has yet to be amended.

The City of Keila told Madise that the regulation needed to be reviewed and, if necessary, amended, but deferred taking a final position.

The regulation imposed a public-law fee, or infrastructure fee, on parties seeking a detailed plan, payable to the city within one year of the plan's adoption. The fee is €4,000 per residential unit — a detached house, apartment or terraced-house unit — for a detailed plan that complies with the comprehensive plan and €10,000 per residential unit for a detailed plan that amends the comprehensive plan.

Under the regulation, the fee applies to developments planning at least four residential units. If a developer refuses to enter into an agreement on paying the infrastructure fee, the city may terminate the detailed planning process and decline to adopt the detailed plan. If a developer fails to pay the infrastructure fee, the city may refuse to issue building and/or occupancy permits for the building or buildings envisaged by the detailed plan, according to the regulation.

Madise noted that the city has no statutory authority to impose an infrastructure fee in this form because it has assumed broader powers than the law allows. While the city has established a general fee through the regulation, the Planning Act only addresses the costs of constructing a specific facility.

"The infrastructure fee can be regarded as a public-law financial obligation whose amount is not determined by assessing the circumstances of an individual case. Such a fee resembles a tax, which likewise requires a legal basis under the Constitution. Regardless of precisely how the infrastructure fee is classified, imposing by regulation such a financial obligation that restricts fundamental rights requires a legal basis. There is currently no such legal basis," Madise wrote in her letter to Kõve.

Requiring a party seeking a detailed plan to meet financial obligations imposed by the city but not provided for by law restricts that person's fundamental right to property, as well as the freedom to conduct business, without a legal basis, the chancellor of justice added.

In May this year, Madise also approached Tallinn over the same issue, saying that a Tallinn regulation used to collect money from real estate developers to finance the construction of public facilities conflicted with the law in several respects.

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