This week a ruling was given in the matter of the Elhanan compound on the border of the Neve Tzedek neighborhood in Tel Aviv. The ruling relates to two combined programs – one for the establishment of residential towers and the other for the regulation of public spaces. The execution of the public activities was imposed on the entrepreneur. The regional committee approved the plans and determined that their approval and implementation would be combined.
The court accepted the argument of the petitioners that the plans constitute a transaction between the entrepreneurs and the municipality. The construction rights were awarded to the entrepreneur in exchange for execution of the public works. The issue is whether such transactions are within the authority of municipal officials, and whether they are allowed to grant building rights in exchange for the fulfillment of public duties, while discharging the municipality from performing its duties The court’s conclusion was that a specific program in which the main (if not the only) purpose was financing and the raising of external funding for the municipality, constitutes a deviation from the local committee’s authority.
In addition, it was held that the local authority had not abided by the duty of holding a tender for the performance of public works. The regional committee had indeed argued that there is a physical and direct planning connection between the residential space and the public lot which could exempt the municipality from holding the tender, but the claim was rejected. The judgment has grave consequences.
Nevertheless Judge Gadot noted that she is aware of the broad implications which the judgment might have and its economic and public implications, but we would like to give increased attention to the issue. The court cited the construction rights as “bank notes held by the planning committee,” which allow raising funds through promoting specific programs.
Each plan to add additional building rights is ultimately approved by the District Committee. The Committee’s vision is simply expansion and planning, which does not take into account the financial considerations of these public tasks. The test which we offer is simple: Would the committee have approved the plan even without the economic element? We agree that a plan, of which the sole or primary goal is raising money for the authority, is wrong. On the other hand, if the program is justified in terms of planning, while at the same time, with the addition of the rights, the entrepreneur recognizes that the program has a toll on the infrastructure, and therefore agrees to abide by the performance of public tasks – then the program is fit to be approved.
The result of the ruling is that the additional floors would not be built, but also the public works would not be not carried out, and eventually damage would be caused mainly to the public.
Some people would argue that the local committee should be allowed to add building rights at any time and anywhere. In addition, in the framework of the balancing and the barriers in the field of the planning and construction, the regional committee examines the local committee’s decisions, and above all these are the courts that oversee the planning committee.
It is true that we must act in the framework of the administrative law while maintaining the law, the procedures and the appropriate legal norms. Nevertheless, is the Authority really dismantling from its duties to perform public works? Is it not the entrepreneur’s duty to perform the works to meet the Authority’s obligations to cause the matter to be executed? Perhaps this relates to a procedure which will lead to performance of the surrounding development more quickly.
A solution should be found that will allow the promotion of programs, while establishing a mechanism which will impose a duty on the contractor to solve the problem of intensifying the extra construction rights of the public infrastructure.
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