A Building without a Building Permit Cannot Perform Urban Renewal under TAMA 38/2
The Tel Aviv District Court, presiding as an Administrative Court, rejected a petition filed against the District Appeals Committee for Planning and Construction and held that a structure that has not received a building permit cannot execute a TAMA 38 project. Per the court, the desire to reinforce buildings for risk of earthquakes is not intended to cure construction non-compliance and is not designed to “launder” buildings constructed without a permit.
A development company applied to the Local Committee for Planning and Construction in Ramat HaSharon seeking a permit for the demolition of a building in Ramat HaSharon and the construction of a new building in its place, within a TAMA 38/2 plan. After several hearings, the Local Committee rejected the application, reasoning that the addition of rights under TAMA 38 could not be permitted for a building that was constructed without a building permit.
The development company filed an appeal challenging the Local Committee’s decision. The Appeals Committee rejected this appeal once it, too, found that the building in question was built without a permit, and that the incentives of additional building rights under TAMA 38 could not be given to such a building. Hence the petition to the Tel Aviv District Court.
The development company claimed that both the Local Committee’s and the Appeals Committee’s decisions must be set aside, and that the provisions of TAMA 38 and the RS/3838 plan must be applied to the building. In addition, the development company argued that even if it were impossible to locate the permit according to which the building was constructed, in effect, the construction contractor paid all the fees and taxes required by the city of Hod HaSharon back in 1976 and thus the city itself considered the building to have been built under a building permit. Moreover, the development company maintained that in the year 2000 the Local Committee decided to retroactively approve the building’s building permit for the purpose of new building additions on its roof. Further, under the presumption of the validity of an administrative action, it must be held that the building was lawfully constructed, as it is presumed that the Local Committee would not have approved additions to a building that was built unlawfully.
The Local Committee and the Appeals Committee argued that the court ought not to intervene in decisions by planning institutions unless such decisions included an administrative flaw. The case at hand, they argued, does not justify such intervention. Additionally, they claimed that the building does not full under TAMA 38 and the RS/3838 plan, with or without the incentives. The purpose of the distinction between structures that have building permits and those without them is clear: the desire to reinforce buildings at risk of earthquakes is not intended to cure construction non-compliance and is not designed to “launder” buildings constructed without a permit.
“In light of the obvious conclusion, whereby the building does not and never had a building permit, it is clear that the incentives granted to buildings for which a building permit was granted prior to 1.1.1980, cannot be applied to it, as this is completely inconsistent with the provisions of TAMA 38 and the provisions of the RS/3838 plan. Moreover, because the building was not granted a building permit to this very day (as opposed to the general decision dated July 5, 2000, to grant a building permit, a decision that was not implemented to this day), the provisions of TAMA 38 cannot at all apply to the building, even without the building incentives. And note: to the extent the building’s tenants finally arrange for the granting of a building permit, then TAMA 38 would apply to the building, but the Petitioner still would not be entitled to the incentive reserved only to buildings that were granted building permits prior to 1.1.1980. This is the outcome had I concluded that the Local Committee’s decision dated July 5, 2000, constituted an actual building permit. Then, too, the Petitioner could not benefit from the building incentives, as this case as well would concern a building permit granted after 1.1.1980, or in other words the operative date.”