PROTECTING TOURISM AREAS BY LAW AGAINST
NON-TOURISTIC USES
Dov Kolani, Advocate
(Presented at the 16th
IFTTA conference, Buenos Aires, 3-7 October,2004)
Many countries, even those
which possess numerous nature landscapes and long coastlines, sometimes
have to decide on priorities with regard to the use of lands in such
areas: should they be assigned to the enjoyment of the general public,
such as public beaches or touristic projects; or can they be allowed to be
used for private purposes such as private residences that exclude use by
tourists and the public at large.
This dilemma might be critical
for countries where tourism is an essential element of their economy but
they only possess scarce nature resources and attractions that appeal to
tourists and that are suitable for vacationers, such as a short sea coast.
Even in the USA, the state of California - which is not lacking in empty
coastal areas - has passed legislation in this respect.
We recall that the concept that
sea shores should be retained for public use and enjoyment has been a
legal norm since ancient times. In Roman law, in the Justinian Code, it
was prescribed as follows:
"According to the law of
nature, these belong commonly to all mankind --- the air, the running
water, the sea and the shores of the sea".
(The Institutes,
2.1.1.).
I would like to discuss the
situation in one country, the State of Israel, and to describe the role of
the courts of law in the protection of public interest in areas that are
important for tourism and vacationing. The principles that they adopted
might well be universally acceptable.
Israel's coastline on the
Mediterranean Sea is less than 200 kilometers long. This short coast is
desired by a variety of projects competing to possess pieces of the beach:
ports, marinas, power stations and others. Also, many entrepreneurs want
to construct luxury houses for sale to individuals on these beaches,
because they hope to gain higher and quicker profits than, for instance,
by operating hotels where the returns from their investments will stretch
over a longer period of time. The closer such buildings are to the water
line, the bigger the demand for them will be and the higher the profits
for the builder.
But the state strives to keep
enough of that precious national asset - the coastal region - for use by
the public for leisure, vacation and tourism purposes. Therefore, careful
planning had to be made by the government authorities in order to provide
adequate recreational facilities and beaches to the public, including of
course the tourists, and prevent their exploitation for projects that are
in contrast to these purposes.
The legal instrument for
planning and supervision of building in Israel is a law named The Planning
and Building Law of 1965.
There are three levels of
planning institutions that operate under this law: The National Council
for Planning and Building, which prepares outline planning schemes for the
whole country; on the intermediate level are the District Commissions that
are responsible for the overall supervision of the planning and building
within each district of the country. They coordinate the activities of the
third level - the Local Commissions. The Local Commissions prepare the
detailed plans for their cities or rural settlements and they generally
are the organ that issues building permits for each project and each
structure.
Two country-wide schemes
relevant to our discussion were prepared by the National Council: one for
the Coastal Beaches (named TMA 13) and the other for Tourism Development
(TMA 12, pending final approval)). These schemes prescribe guidelines for
the use of various areas of the country for the purposes of vacationing,
tourism and recreation. One significant guideline of TMA 13 was that no
construction be allowed within 100 meters of the water line. This has now
been extended to a strip of 300 meters, where only in very exceptional
cases building will be permitted after being examined by a special
planning committee.
The national, district and
local plans also specified the kinds of projects that will be allowed
within tourism zones: hotels, apartment hotels, vacation houses.
But there was no legal
definition of these terms in the schemes; and this situation was taken
advantage of by various entrepreneurs who gave their own definition to the
terms in a way which allowed them to circumvent the original and authentic
purpose of the planning authorities. In some cases, their activities led
civic organizations for the protection of the environment, as well as
governmental bodies, to apply to the courts of law and petition them to
intervene.
In recent years there were
several cases that dealt with entrepreneurs who attempted to circumvent
the restrictions and build prestigious residence houses in these areas
under the guise of hotels. Such buildings were run by a management company
and included elements that are usually found in hotels, such as a wide
entrance, spacious lobby, pool, gym rooms and a doorman. But instead of
letting the units to guests for temporary use, they were sold to
individuals for their exclusive use.
In one case, the entrepreneurs
tried to rely on a certain policy of the Ministry of Tourism, who
recognized a concept of "apartment hotels" for the purpose of the
incentives granted by the government to tourist hotels. It was found that
many return visitors from abroad preferred to purchase and own their
private room or apartment in a regular hotel, while having the advantage
of using the hotel services during their frequent visits. Usually, but not
always, they put their apartment at the disposal of the hotel by way of a
"lease-back" agreement so that the hotel could rent them to regular
tourists when the owners were away.
There were, however, certain
conditions for the recognition of the "apartment hotel" by the Ministry:
for instance, one condition was that only up to 50% of the units may be
sold, and only to foreign residents; at times when the foreign resident
does not use the unit it may be rented by the management to temporary
guests; and the project as a whole must be operated and managed as any
regular hotel.
It was assumed by the Ministry
that the above conditions should provide sufficient assurance for keeping
the majority of the units in these projects for tourists and vacationers
and would prevent their sale entirely as residences. But the reality was
different: it was eventually discovered that some entrepreneurs who
purportedly built "apartment hotels" did not fulfill the prescribed
conditions and in fact their projects have become high-level apartment
houses that were sold to local residents and not to foreign visitors. At
that point the Ministry of Tourism stopped its recognition of "apartment
hotels", and other repercussions to the projects ensued.
Organizations for the
protection of the environment also became aware that beaches and other
areas of exceptional nature or landscape qualities, which were supposed to
serve the public at large for vacation and tourism purposes, were actually
being exploited for private prestigious residence houses. Sometimes the
developers even managed to obtain approval from the local planning and
building committee (which is usually the local municipality itself).
These "green" organizations
initiated legal proceedings in order to compel the developer to abide by
the original touristic characteristics of their project. In a series of
judgments the courts dealt severely with these infringements of the
planning laws. They decided, first, to examine what were the overall goal
and the spirit of the National Scheme for the coastal areas and then they
checked whether the projects in question stayed within these goals.
One such case involved a
project that was in the process of construction in the coastal area south
of the city of Haifa. In that case the Local Committee permitted the
construction of "hotel sites" in that area together with facilities for
recreation and bathing activities for people who came to enjoy the beach.
It was soon discovered that the developers started to sell apartments in
their first buildings to buyers who were private Israeli individuals, for
their exclusive use.
The case was brought before the
District Court and later also, on appeal, to the Supreme Court. The
developers' defense was based on the fact that the Local Plan permitted to
construct both "hotels" and "apartment hotels". They claimed that the
buildings in question had all the attributes of hotels - the spacious
lobby, the public spaces, a swimming pool, restaurant and a gym; they
argued that what looked as a hotel should be considered as a hotel and,
consequently, that they did comply with the requirements of the local
plan.
The District Court and the
Supreme Court did not agree. They did recognize that the external physical
aspects of the buildings resembled a hotel, but - in the courts' opinion -
that was not enough. The judges stated that not only the physical form of
the project should be examined but also the essence, namely: whether the
use that was made of the buildings was within the framework of the
official planning schemes. The courts ruled that, in essence and in view
of the goals of the National scheme TMA 13, the term "apartment hotel"
should be interpreted in such a way that the units in the building would
be used in the same way as units in a hotel. Whatever the form of the
building was, the one trait of an "apartment hotel" that distinguishes it
from an apartment residence house should be, that the place serves for
temporary lodging of persons who come for vacation, tourism or
business. That "internal" aspect of an "apartment hotel" must exist.
The District Court did not,
however, rule out the possibility that units might be owned by
individuals, but not for any exclusive private use. Thus, the sales
contract for every unit should include a condition that it be put at the
disposal of the hotel for at least some part of the year, to be rented for
short-term accommodation as is customary in regular hotels. But on appeal
to the Supreme Court the judges were more strict: they ruled that, in view
of the underlying principal of the official plans - namely, that the
public should have the main benefit of facilities in the area - the units
should be at the disposal of the hotel during most of the year,
namely, for a period longer than six months. A specific condition to that
effect must be part of every contract of sale.
Now the question came up, what
about the vested proprietary rights of individuals who had purchased
units before the courts gave their interpretation of the meaning of
"apartment hotel", and whose contracts of sale did not contain the above
condition and its restrictions? The courts therefore respected their
rights, and stated that only future contracts with new buyers should fall
under the above ruling.
In another case, the "green"
organizations sued not only the developers of a project but also the Local
Planning Committee. The Local Plan had been prepared long before the
National Plan became legally binding; and when the building permit was
issued to developers of an area close to the beach, the permit did not
stipulate that their buildings must only be used for hotel accommodation.
The Plan did, however, prescribe that only "vacation apartments" could be
built in that area. It turned out that the developers assigned 30% of the
units for hotel use and the rest were constructed as regular residence
apartments.
Again, the court decided that
the units may be sold to individuals, because this did not rule out the
possibility that the owners would in fact use them for vacation purposes.
However, the court reiterated the element that distinguishes between a
vacation apartment and a residence: that the units will not be used
exclusively by the owners
but also by vacationers
generally. In this case the contracts of sale did not state that the
buyers must put their units at the disposal of the hotel for renting them
out to tourists during part of the year. The court stated, again, that
it would not support a situation where parts of the sea shore - which is
intended to be used by the public at large - will in fact be appropriated
for regular private residences. It issued an injunction against the Local
Committee, stating that the Committee is bound by the legal Planning
Scheme and should refrain from issuing any permits in contravention of its
purposes.
The last case that I will
discuss does not pertain to the sea shore but to a rural area near
Jerusalem. In this case the courts made an exceptionally harsh decision.
The area in question was
designated as a tourism zone and the Local Committee issued a building
permit stating specifically that the developer can only build vacation
apartments. But the developer simply constructed 5-room duplexes and
marketed them as residences - even though he had been warned by the
Planning Committee to refrain from proceeding with his activities. He even
sold seven of the houses, promising the buyers that "everything will be
o.k.". The buyers themselves have already taken up residence in their
duplexes.
In the face of such blatant
activity the Local Committee activated its powers under the law and
ordered the electric company to stop supplying electricity to the
buildings. The government authorities also applied to the court, and the
District Court issued an injunction against the use of the apartments as
residences.
The buyers appealed to the
Supreme Court and claimed that their apartments should be considered as
"vacation apartments". But the court dealt severely with the developer and
buyers alike. It referred to the previous court cases and noted that in
those cases the buildings in question looked like hotels and only their
use was problematic. In this case, even the physical features of the
duplexes clearly indicated that they could not be considered as "vacation
apartments". The court stated that it would not acquiesce with such a
serious disregard of the public interest and violation of the lawful
plans. It decided that, notwithstanding the plight of the buyers and the
harsh consequences they suffered, they could not use the duplexes as their
residences, and they must reconstruct them and divide them into smaller
vacation units
To sum up, the principles
established by the court were as follows:
a) Priority should be given to
the public interest in order to ensure that areas designated by legal
procedure for for tourism, vacation and recreation use by the general
public should not be allowed to be exploited for different purposes.
b) The courts will not be bound
by the name-tag that was given to projects built in tourism areas, nor
will the external physical aspects of a project determine whether it
complies with the requirements of the law. The court will also examine the
actual management and operation of the project in question and find out
whether in essence it fulfils the goals of its use for touristic
and vacation purposes, as prescribed by the official plans.
c) The vested rights of
individuals within tourism areas should be respected as far as possible,
but when they blatantly ignore the violation of the law they too, and not
only the entrepreneurs, might be accountable and bear the consequences.
