Globes, Amit Nissim Adv., 23.02.2020
The district court rarely comes up with administrative petitions dealing with the decision of an appeal committee for planning and construction, as the rule is that only in cases of bad faith or extreme unreasonableness, the district court will be empowered to intervene in an appeal committee decision.
In the case before us, this is a building on 70 Rothschild Street in Bat Yam, which has 16 apartments, which was declared a dangerous building and needed to be strengthened as soon as possible.
Ofakim has signed an agreement to promote Tama 38 with the tenants, and with a request for a permit, the developer has requested the addition of 12 new three-story apartments, so that the building will be 28 apartments.
According to the parking standard, the developer is required to produce 21 parking spaces in the lot. But in view of the fact that the lot is smaller and narrower than the parking lot, a series of six parking spaces in the parking lot was requested and supplemented by the payment of a "parking lot" for another 15 parking spaces.
The local committee approved the permit application, including the parking arrangement in accordance with the developer’s request.
Opponents of the adjoining building filed an appeal with the local committee's decision, and the appeal committee decided that the "local committee should reduce the number of proposed new apartments or alternatively demand parking solutions in the field, despite the cost involved. According to this decision, the local committee's decision to grant a building permit was revoked. Under conditions.
The developer filed an administrative petition with the Tel Aviv District Court. President of the Tel Aviv District Court, Justice Eitan Orenstein, ruled that the legislature was aware that in the Tama 38/1 projects (strengthening and supplementation of existing ones), planning, architectural difficulties may arise. And / or others to fulfill the parking standard requirements in the field, so enabling other legal solutions beyond the creation of the parking standard in the lot, such as financing a parking fund.
Court: The Legislature preferred parking reinforcement
According to the court, the creation of various arrangements for parking standards outside the lot indicates that the legislature preferred that the buildings be strengthened and given appropriate permits, even at the cost of creating parking in nearby parking lots as part of a parking standard.
The court ruled that the local committee decided that payment of a parking fund for the creation of 15 additional parking spaces in a car park located approximately 600 square meters of the building's premises - constitutes an adequate parking solution. In addition, the court made it clear that the construction of parking according to a standard in the parking lot involves the cost of construction A robotic facility, which is estimated to cost NIS 4.5 million, according to an appraiser's report, which would render the project non-economic.Another solution proposed by the appeal committee, the new dwellings reduction, was also rejected by the court, which ruled that this solution would discourage and frustrate the project. The project for lack of economy.
In this regard, the Court referred to the Appeals Committee's argument that the economic aspect is not foreseeable in relation to applications under TAMA 38, stating that the economic argument is not foreseeable, but must be considered as a whole and taken into account in the relevant data in deciding whether to grant or reject a permit application Construction according to.
The court distinguished between a TAMA 38/2 project (demolition and construction), which has a wider scope for planning maneuvering to affect the project's finances (such as reducing owner-occupied space as a lever for economic viability) and TAMA 38/1 projects which The planning interval in them is much smaller, so claims of economic feasibility will not be easily rejected.
In summary, the court held that in balancing human life risk and creating parking spaces, the clear preference is to allow projects by virtue of TAMA 38/1. The court also held that the parking solution examined and approved by the local committee is reasonable and must be approved, and that the status of the building which Declared a dangerous building requires its reinforcement as soon as possible.
Attam (TA) 37850-5-19 Ofakim BI Rothschild 70 Ltd. v. Appeals Committee for Planning and Construction of Tel Aviv District