Construction permit is a utilization permit provided by the Administration to the owners when using property rights. Even if it is in accordance with the zoning plans and regulations, owners cannot do any constructional activity on their parcels without obtaining consent from the Administration. Constructing without consent of the related administration has administrative and punitive enforcements. For this reason, owners must apply for and obtain a construction permit from Administration in case they are willing to do constructional activities on their parcels. Administrative procedures related to process of obtaining construction permits are regulated by the legislator.
I. OBTAINING BUILDING (CONSTRUCTION) PERMIT
Compulsory building (construction) permit procedure to use construction right is regulated in Zoning Code articles 21 and 22. Issues on procedure in obtaining construction permit and limits of authority that the Administration has on licensing is regulated in the law. The reason to regulate the conditions of obtaining construction permit is to balance the intense pressure of compulsory construction permit on property right. To bind the use of fundamental right and freedoms to permit requirement is the most massive public force intervention. In contrast to utilization of rights and freedoms procedures without asking to public authorities or only by serving a notice, “performing the right depending on a permit” is a massive intervention to the property right. In this situation, it is necessary to determine the intervention and its limits and the procedure and method on using this authority.
1. Conditions for Obtaining Construction Permit
In order to obtain construction permit, an application must be made to municipality or governorship with a petition submitted by owner of the building or their proxies. Property deed or a substitute document, architectural project, static project, electrical and installment project, photos and calculations, benchmark chart or dimension chart must be attached to the said petition.
As a result of the assessment made by municipalities or governorships, in case the application is complete, construction permit must be granted in at least thirty days. Related authorities will be liable for delays after thirty days when granting construction permits.
As a result of the assessments, if related municipality or governorship ascertains a deficiency or mistake, municipality or governorship informs the applicant on deficiencies or mistakes within fifteen days. After the mistakes and deficiencies are eliminated, related administration is obligated to grant construction permit in at least fifteen days.
2. Construction Permit Process
During the process of construction permit, owners have to obtain the documents to be attached to application petition.
A. Obtaining The Charts
It is necessary to obtain benchmark chart or dimension chart for the application. The chart displaying the measures of construction blocks and parcels obtained from the ground in accordance with the permanent facilities is called benchmark chart, the chart displaying the measures of construction blocks and parcels obtained from zoning sheet or charts with pre-determined measures is called dimension chart. The caliber report deduced from cadastral plan and displaying the geometrical location and shape of the real-estate, needs to be provided. All these charts must be obtained from related administration and attached to the application petition.
B. Zoning Status Document
Zoning status document is a document displaying the possible construction, structuring conditions and structuring function in accordance with the existing zoning plan. In accordance with the zoning status document, owners shape their projects attached to the application petition which will be submitted to the Administration. Zoning status document is a document displaying the location of zone parcel on zoning plan and the caliber of the parcel. Zoning status document is a proceeding of clarifying the situation of owner’s parcel by the Administration. At the same time, every zoning status document is an individual subjective proceeding. Document arranging proceeding is an individual subjective proceeding since every structuring right is provided to every parcel considering its constructional situation and condition. Legal results arising from general, individual condition and individual subjective proceedings of the Administration are different.
C. Obtaining Constructional Permit Proceedings
Proceedings when obtaining constructional permit includes numerous sequent transactions on written basis.
a. Application Process
Owners must make their applications in written to the Administration in order to construct. It is necessary to be the owner or to have the right to use the right of property in order to apply. It is possible to be owner’s proxy or, to have the power of use on servitude or assignment when applying as a non owner.
Documents displaying the construction owner, type of the building, building use function, location of building, map section, block and parcel numbers, project owner, technical personnel data must be attached to the application petition.
b. Assessment of the Application
Upon the application, the Administration examines if the application has necessary procedural requirements. In pursuit of arranging the application including required conditions, existence of additional documents required by law is considered. After examining the projects in accordance with compulsory standards, it is examined if submitted building project and building use function complies with determined function of zoning parcel and physical condition. During the examination, if deficiency of parcel size or impossibility of building due to determined functions detected, application shall be denied. If the deficiency might be fulfilled, person of interest is informed and requested to fulfill the deficiencies. Upon fulfilling the deficiency, permit will be granted.
c. Term of Permit
Within a time period after obtaining the construction permit, necessary transactions in accordance with the permit have to be performed. In accordance with Zoning Code article 29, after obtaining the construction permit, construction has to be initiated in two years, and must be completed in five years. Unless structuring is initiated in 2 year and howsoever completed in five years, the permit is invalid. Beginning of this period is the date of obtaining permit. In this situation, permit must be renewed. In case permit is invalid due to term expiration, built parts are deemed as vested interest. Permit invalidated due to term expiration must be renewed. Unless there is an increase of gross construction site or an alteration in building features, pre-collected legal fee is considered while calculation.
The administration has three options when renewal is requested due to non consummation of construction in five years. First case is no alteration on zoning plan of parcel. In this case, on condition of submitting the necessary documents again, construction permit is renewed by fulfilling the legal fees. The second possibility is partial alterations on the statue of parcel. In this case construction permit may be renewed accordingly to the changes. Third possibility is discharge of owner’s construction right. In this case it is impossible to renew the construction permit. Construction permit will not be renewed however, built parts until the expiration of construction permit are deemed as vested interest.
Permit and its attachments have to be present in the construction area. It is compulsory to have the permit and its attachments present in the construction area.
4. Legal Qualification
Two headlines would stand out when it is legal qualification in the process of construction permit. The first one is legal qualification of granting construction permit authorization on zoning parcel and the second one is legal qualification of the construction permit.
A. Legal Qualification of Granting Construction Permit Authority
Authority provided to the Administration during the construction permit process has serious restricting results on property right which is one of the most important fundamental rights and freedoms. It should not be allowed to use the authority of granting construction permit which has such a wide and adverse effect on property right unregulated. In case the terms of use are not regulated, it is highly possible that the Administration acts at its will and “State of Law” principle is damaged. For this reason, legislator has bounded the authority that Administration has by means of determining every detail and condition of use. Consequently, Administration will act in bounded authority and will be obliged to grant the construction permit if all requirements are fulfilled. In bounded authority, the Administration does not have any judicial discretion on acting. The Administration only checks the materialization of requirements in accordance with the Law. The Administration must grant the construction permit if requirements are fulfilled.
B. Legal Qualification of Construction Permit
When granting a construction permit, Administration declares its will as individual transaction changing the legal status of real-estate which is in the shape of zoning parcel. In this process, Administration transacts by considering the individual situation of the applicant owners’ zoning parcels. Permit transaction which results in removal of the existing building in zoning lot and constructing a different building or changing the function of existing building or constructing a new building on an empty estate is individual transaction in this context, and is a subjective transaction when considering the size of parcel, regional characteristics and intension of parcel location.
II. OCCUPANCY PERMIT
Occupancy permit is prepared pursuant to the examines on completed buildings with regards to their expediency of zoning regulations. Occupancy permit request can be done only for the permitted buildings. In order to grant occupancy permit, related municipality or governorship must detect that the building is completed in accordance with the constructing permit. Providing that the building is completed in accordance with constructing permit and its attachments and has no inconveniency on health issues, occupancy permit is granted.
Occupancy permit is granted upon the owners’ request. Municipalities and governorships must conclude occupancy permit applications within thirty days. In case there is no transaction in thirty days, it is deemed as partial or full granting of the occupancy permit. If related municipality or governorship fails to act, this situation does not exonerate the building owner from the consequences of unauthorized construction and obligations to pay such as tax, duty, charge and etc.
It is not legally acceptable to apply for occupancy permit for a totally unpermitted building.
Upon the application for occupancy permit, Administration may transact in three ways. First of all, if it is detected that the building has been constructed accordingly with the constructing permit and its attachments, occupancy permits is granted. If related municipality or governorship detects an inconsistency with the situation with the permit and its attachments, and if partial deficiencies can be fulfilled, administration asks the owners to fulfill these deficiencies. As for the third, request for occupancy permit is declined if the building cannot be habilitated. The building cannot be used when the request is declined since the deficiencies cannot be fulfilled or if owners fail to act upon the request for habilitation to the owners.
Since it is legally impossible to use a building that does not have an occupancy permit, public services such as electric, water and sewer will not be provided. For the parts of the building which were granted occupancy permit, these public services may be provided. Completion date of the building is the issuance date of occupancy permit.
III. UNAUTHORIZED CONSTRUCTION
As explained above, owners may use the constructing right on zoning parcels in accordance with zoning plans and code. It is compulsory to obtain permit to use constructing right. Building without authorization or contrary to construction permit is illegal.
1. Building Without Authorization
Building on zoning parcels without obtaining a permit from the Administration is deemed as building without authorization. Building is deemed to be unlicensed construction in the event of constructing without permit. Determination on whether a building is unlicensed or not predicates upon constructing without permit. Existence of constructing right according to zoning plan or constructing in accordance with the constructing right is not effective on unauthorized construction. Building without obtaining a permit from the Administration is an action entitled to a penalty even if it is in accordance with zoning plan and constructing right. Building without a permit in accordance with zoning status is an opportunity to adhere the building to a permit.
2. Constructing Contrary to Permit
When the construction is contrary to construction permit and its attachments, it is building contrary to permit. Constructing contrary to authorization is unauthorized construction likewise building without permit. Occupancy permit will not be granted and the building will not function in accordance with its utilization function if the building is built contrary to construction permit and its attachments.
IV. RESULTS OF UNAUTHORIZED CONSTRUCTION
Codes have imposed an obligation on the Administration to abrogate the situation in the existence of an unauthorized construction. Compulsory enforcements to be performed by the Administration can be collected under three headlines. These are detection of contrariety to law, elimination of contrariety and execution of administrative sanctions.
1. Detection and Cease and Desist Order
Related municipality or governorship detects the status of the construction when existence of a building without permit or building contrary to authorization and its attachments declared, noticed or has knowledge on this issue somehow. Detection of the level of the constructional activity is especially important with regards to building contrary to permit and its attachments. Detecting the level of the building is important with regards to performing vested interests.
After the detection, constructional activities are ceased and the building is sealed.
Detection and cease and desist order is deemed to be served to those concerned by means of hanging to the construction. A copy is delivered to chief alderman.
2. Elimination of Contrariety or Adhere to Authorization
Upon the service of detection and cease and desist order performed upon obtaining the knowledge of building contrary to authorization or its attachments or building without authorization, it is possible to adhere the building to a permit or accommodate to permit in one month. To adhere to a permit is possible especially when building without permit in accordance with zoning code and zoning plan.
It is also possible to eliminate the contrariety in case the building is built with permit but contrariety to the said permit and its attachments.
In case the elimination of contrariety or adhering the building to a permit unsealing can be requested from related municipalities or governorships by the owners in one month. Upon the request, in case the elimination of contrariety or adhering to an authorization is detected, seal is raised and continuation of construction is granted.
3. Building Demolition
If detection and cease and desist order is served on grounds of building contrary to permit or its attachments or building without permit; it is necessary to accommodate the building to permit and its attachments, if adhering the building to permit is unlicensed and building demolition is rendered. Before rendering for building demolition, possibility of rehabilitation of the building must be ascertained. Following the render for building demolition, building without permit or building contrariety to permit and its attachments, is demolished by municipal committee or governorship and related expenses are collected from construction owner.
In order to render for building demolition, first detection and cease and desist order must be performed. Building demolition award must be rendered by municipal committee or provincial administration board. Building demolition award must be rendered on behalf of the construction owner. Preamble must be indicated in the award. Contrariety to law must be indicated. Demolition award must be served to those concerned, 30 days must be allotted for demolition and vested rights must be taken into account.
4. Penalty Fine
Enforcement to be executed is not only building demolition, but also to fine the liable individual an administrative penalty in case building without permit or contrariety to authorization and its attachments. Constructers (owners or contractors) are fined to an administrative penalty. Curator who is the engineer of record is fined 1/5 of the said administrative penalty. Administrative penalties are increased one time in case of repetition. The penalties are fined directly by municipalities or the highest administrative authority according to those concerned.
Municipal committee is in charge on the administrative penalties for unlicensed construction to be fined by municipalities. Fines collected by municipalities in consideration of administrative penalties are recorded as income to municipal budget.
5. Penalty of Dismissal From Profession
It is possible to award administrative penalties such as prevention contractors and technical curators who took part in unauthorized construction from practice and detaining their commitment documents. It is possible to award for prevention from practice of the engineers of record and contractors from 1 year up to 5 years. Ministry of Public Works and Settlement and occupational organization related to the member of profession who was fined are informed by related administration about prevention from practice penalty awarded for the engineers of record and contractors.
V. NULLITY SUITS WITH REGARDS TO UNAUTHORIZED CONSTRUCTION OR CONSTRUCTION CONTRARY TO AUTHORIZATION
In accordance with the article 125 of the Constitution, every transaction of Administration is remediable. A suit can be filed against building demolition renders in relation to the unauthorized constructions or constructions contrary to permit which is one of the transactions of Administration. Technically, nullity suits with regards to building demolition renders must be filed in sixty days from the service of demolition render.
A motion for stay of execution must be filed during the nullity action. Because, filing a nullity action with regards to building demolition render cannot prevent or cease the demolition. To cease the demolition during the trial, a motion for stay of execution must be filed and court must sustain the claim. In order to cease the demolition and not to perform demolition by municipality, said injunction must be obtained from the court and served to related Administration.
Pursuant to Code of Administrative Procedure article 27, in order to sustain stay of execution, demolition must cause hard to recover or irretrievable losses and administrative transaction must be clearly illegal. Providing that these two conditions exist in the suit at the same time, administrative court can sustain stay of execution promptly. If administrative court does not sustain stay of execution, it is necessary to object this interim decision before regional administrative court in seven days after the notification date. Regional administrative court examines the decision again and whether revokes the objection of motion for stay of execution and files for stay of execution of demolition or overrules the objection. Judgments made upon objection are definite.
During the judgments made by Administrative court, demolition render is examined by various aspects. Principally court examines if the Administration is competent, and if the demolition is awarded and served to those concerned accordingly with the procedural rules. Court also examines if the transaction is invalid by means of matter if the Administration rendered directly to demolition while the problem could be resolved by another transaction. Administrative court also examines if the transaction is performed in time. Finally administrative court examines the demolition rendering in the sense of public interest. All administrative transactions and awards must be established with the purpose of public interest. If the demolition award is made to fine someone or to protect someone, court revokes the demolition ruling rendered by Administration.
Decisions revoking the objection of motion for stay of executions made by Administrative Court can be appealed in thirty days by those concerned.
NULLITY ACTIONS AGAINST ZONING PLANS
Constructional activity is an inseparable part of property right. It would be right to consider constructing as an engaged right to property right. In other words, constructing is a right itself. However, restrictions to utilization of construction right pressures intensely and directly on property right. At this point, it is more important to assess the conditions affecting construction right which is supplemental to property right. Compliance with law of the changes in zoning status and in return of these changes, legal status of existing construction level and expectation level are issues to be assessed. Economical base, which is required by constructional activities which are inseparable part to property right and integrating property right, necessarily causes these activities to be perceived sensitively by community and those concerned. This surfacing sensitivity needs to be legally clarified for not also owners and beneficiaries of construction but also for the ones who object the process.
Existence of changes in zoning status is possible for a part by court decision, and for another part by decisions of administrations authorized in zoning.
I. ZONING PLAN NULLITY ACTIONS
Since process of zoning plan is directly affecting many fundamental rights and freedoms, it is more important to provide compliance with law of administrative transactions to be acted in this area. Affects of zoning plan on rights, especially on property right and abode, travel, private enterprise, press, assembly, protest march necessitates a supervision on protection of these rights and freedoms.
The most effective way to supervise the compliance with law of zoning plans is nullity actions to be filed before administrative courts.
1. Zoning Plan Nullity Actions
Zoning plan nullity actions are being seriously discussed. Especially it would be very difficult to say that the judicial decisions on existence of plaintiff’s interest are integrating with each other.
Determining rules on who interest requirement enabling to file for nullity action refers to constituted by courts. Interpretations made by courts on inexistence of requirement for filing a lawsuit are in contradiction with the decisions of other administrative court under the same regional administrative court or even with the decision of the same court on the same subject. This situation effects the belief and faith to the Justice negatively before community.
It is inconsiderable that everyone files nullity actions against every administrative transaction. Existence of interest relevance within certain bounds is necessary to file a lawsuit. In every lawsuit, it is left to discretion of the court to determine level of interest violated by revoked transaction. In order to file a nullity action in existence of a personal, statutory and current interest, required interest relation will be sustained. In other words, to be able to mention that the transaction matter to nullity action has violated plaintiff’s interest, transaction must affect the plaintiff i.e. to violate plaintiff’s personal interest, and existence of a serious and reasonable relation between the transaction and plaintiff is necessary. Otherwise the lawsuit will be dismissed since the lack of interest relevance. State Council Decisions accept that other real-estate owners in the area, nongovernmental organizations and city planners and chamber of architects have the required interest.
Actions against zoning plans can be filed directly upon publication of plan or with the individual act for implementation of plan. Actions directly against zoning plans filed upon the publication are utilization of right of action motivated by the plan. In case of not filing an action in the limitation of action against zoning plan which is an administrative legislative transaction, a lawsuit can be filed against both implementation transaction and its basis which is zoning plan upon the request for zoning status or construction plan which are individual implementation transactions.
Those concerned who learned zoning plans during the publication period or who learned the zoning status by zoning status certificate or construction permit application can file a lawsuit and claim for nullity of the plan in 60 days on the ground of contrariety to planning and urbanism principles.
Code of Administrative Procedure numbered 2577, chapter headed “Limitations of Actions” article 7 it is regulated that, unless regulated otherwise on special codes, limitation for actions filed before Council of State and administrative courts is 60 days; limitation of actions for legislative transactions necessary to be publicized starts from the following day of publication, chapter headed “Complaints to a Higher Authority” article 11, before filing an administrative law suit by those concerned; abrogating, revoking, alteration or replacing the administrative transaction with another the administrative transaction may be requested from a higher authority, and in case of inexistence of a higher authority, from the authority which transacted, in the limitation of actions period; the said application will cease the ongoing limitation of actions, and in case there is no respond in sixty days the request will be deemed as overruled. In the article 10 it is regulated that “Those concerned may apply to administrative authorities for a transaction or action which can be subjected to an administrative lawsuit. The claim is deemed to be overruled if not responding in sixty days. Those concerned can file a lawsuit before Council of State or administrative or tax courts depending on the matter after sixty-day period. In case the administration’s respond is not provisional, concerned may deem this respond as the claim is overruled and file a lawsuit, or may wait for a definite respond. In this case the limitation of actions will not begin to run. However, waiting period cannot be longer than six months. In case not filing a lawsuit or dismissal of the action on grounds of temporal jurisdiction, a lawsuit can be filed in sixty days starting from the date of service in case the competent administrative authorities respond after the termination of sixty days.”
In accordance with the abovementioned articles, for application with regards to Code numbered 2577 article 11, a limitation for objection is regulated in the Code numbered 3194 article 8/b. Hence, in case of an application in one-month suspension period in accordance with the Code numbered 2577 article 11 and when its deemed as overruled since inexistence of respond in sixty days starting from the last publication date which is the beginning of limitation for administrative actions, in case the claim is overruled by responding in sixty-day of limitation for action period or in sixty days following the last publication date, it is concluded that an administrative lawsuit can be filed in sixty days starting from the respond day. In case of inexistence of a claim for objection to zoning plans within the publication period, the lawsuit must be filed in sixty days starting from last date of publication in accordance with the Code numbered 2577 article 7. In case of a claim for alteration of zoning plan in accordance with the article 10, respond to be given must be a matter to the lawsuit.
In case of acting implementation actions such as permit, zoning status, expropriation, and a lawsuit can be filed for the implementation transaction with the nullity claim for zoning status.
In accordance with the Code of Administrative Procedure numbered 2577 article 11, it is clear that the claim will be deemed as overruled in case of inexistence of respond within 60 days upon the application, from this date ceased action period will begin to run again and the responds from Administration and requests within the same scope will not reclaim the limitation for actions. In case that the claim is assessed by Administration and a new transaction is performed, it is accepted that, since surfacing of a new legal status, a lawsuit can be filed against to this new transaction revealing a new legal consequence within the limitation for actions.
During the judicial review of zoning plans; the matter such as urbanism principles, planning principles and public interest as well as integrity of zoning plan, general structure, characteristics of implementation area and environmental protection are assessed by the court.
During the lawsuits, courts decide whether to cease the execution and nullity of zoning plan or dismissal of the action accordingly with the expert’s report drawn up by majority votes after the zoning plans and meeting protocols of assembly are obtained from the related municipality.
2. Full Remedy Actions To Compensate the Damages Arising From Zone Planning Activities
The authorities of Administration during the process of zone planning must be regulated clearly in law cause of the related rights and freedoms. Otherwise the rule of necessity of constitutional assurance to fundamental rights and freedoms and the necessity of regulating the interventions to rights and freedoms only by law will become meaningless. At this point, we confront the necessity of regulating the zone planning and implementation authorizations explicitly by law and binding these authorizations by law. Administration whose authorities are abided by laws is under the obligation of acting in accordance with the law. This situation which is stated as binding authority is deemed to be the reverse of power of discretion.
Administration that has a binding authority will act in the manner regulated in law in case of existence of the conditions regulated in law. It is irrevocable that the Administration must act in accordance with the principles and rules stated in law to provide the legality of zone planning and implementation process. Authority cannot exercise an authority that does not exist in law on zone planning and implementation process and cannot act apart from the law.
In case the Administration declares a will apart from the regulations in law, individuals affected from this decision can file an action for compensation. In the lawsuits filed on grounds of damages arising from zone planning and implementations, burden of proof regarding causal relation is on the plaintiff. On damages arising from zone planning and implementations, direct and flagrant damage must be detected and lawsuit must be filed accordingly.
The damages that can be subjected to full remedy actions are strictly interpreted by administrative judiciary. Focus is on the decrease occurring in the plaintiff’s assets, and failure to obtain an expected acquisition is not assessed in this regard. At this point the differences in interpretations made by the European Court of Human Rights and the Turkish Administrative Judicial System are surfacing.
The 1982 Constitution article 35 and the provisions on the European Human Rights Convention Protocol 1 are aimed to protect property right by subjecting the protection of property right to strict rules. Considering these regulations, there is no legal ground to restrict the property right with zoning plans for decades and the Administration should consider the damage arising from this approach. Considering the interpretations made by the European Court of Human Rights and their abidingness, it is clear that the damages arising from exceeding the time limit for intervention made to property right must be compensated. An approach as expropriating a real estate in 5 years which is given a function on zoning plan that requires expropriation or amendment of the plan is the limit of the ruling authority of Administration. Even performed in accordance with law, it is unacceptable that a side or a part of the community restricts property right. On the Bosporus region which is one of the most important regions of the world, it is clear that restriction of property right is in effect since 1983 and there is no action about relief of the owners. This situation is clearly contrary to the Constitution article 35 and European Human Rights Convention Protocol 1. It is highly possible that an application to be made to the European Court of Human Rights will result against the State.
It is certainly for public interest that the necessity of protection of a specific area or value or a healthy, steady and esthetic of the city. In order to provide these necessities, there can be a restriction on property right. On contrary, it is obvious that to aggrieve people by an implementation which is for public interest will not comply with equality before public burden. In the interpretation made by Constitutional Court, it can be seen that there is not a legal basis to restrictions accordingly to zoning plans for decades by the abrogation of 13th article of Zoning Code on the ground that it is an unconstitutional intervention even the restriction made to construction right in expropriations included in the necessary zoning programs made for implementation of zoning plans. Considering that the zoning plans are made for five–year periods and a scheduled matter must be executed at least in five years and this situation is considered to be contrary to law/Constitution by Constitutional Court, situation will be understood clearly.
II. STATUS OF CONSTRUCTION IN CASE OF AN ALTERATION ON ZONING PLAN
Protection of the vested rights arising from the zoning plans before alteration and the status of the granted construction permit upon an alteration on zoning plan is another important subject.
First of all we must say that administrative transactions have prospective effect. Exception to this provision is act of “revoke” and it will have a retroactive effect. However, in alteration on administrative transactions; alteration is effective for the date after it is made.
To subject the existing situations to new regulations will cause the evanish of national wealth as well as motivate people to do unlicensed construction since it will create loss of confidence to the Administration. In case of alteration in the zoning plans, the vested rights obtained by individuals must be protected without intervening public interest and service performance. For this purpose, protection of vested rights which is one of the Administrative Law principles is on the agenda.
Legality of the administrative transactions must be assessed by the existing legal status. If the administrative transaction is in compliance with laws by the time it is acted, an alteration in law or a later incompliance with law of the transaction will not require the revoking of the said transaction. Council of State Chamber 1 has explained the vested rights on its decision dated 19.12.1988 numbered 1988/336 E. 1988/355 K. by saying “On administrative actions filed for nullity of administrative transactions on the ground of contrariety to law, the assessment of legality must be performed according to the date of transaction. Unless an administrative transaction is exterminated with its all consequences by the time of transaction and revoked, it is impossible to accept the deficiency of matter. Although it is not easy to declare that an illegal transaction may entitle to a vested right, it is clear that an irregular transaction may entitle the beneficiaries to beneficial rights and may cause subjective consequences. It is undisputed that null and void transactions, fraudulent transactions acted by imposition of the concerned, transaction acted by a manifest error of Administration, and transactions inconvenient to vest right immediately will not entitle vest rights. Administration’s transactions contrariety to law apart from these, even if they are contrary to law alteration of beneficial legal status obtained by concerned is contrary to stability of Administration principle. Even if these transactions are contrariety to law, legal consequences must be protected after the limitation for actions period is expired. This is a natural consequence of inviolability of the effects of individual acts of administration principle.”
If a zoning plan is altered by the Administration; its effects to situations of granted construction permits or on-going constructions or completed rough constructions needs to be examined.
In principle, zoning plans do not vest any rights since they are legislative transactions. In other words, a claim solely based on prior zoning plan cannot be asserted. Transactions vesting rights are individual transactions (such as granting construction permit). If an alteration in zoning plan affects individual administrative transactions, then protection of the vested rights will be an issue.
In practice, Council of State has decided contradictorily for a long time. In a decision on 1983 it is decided that “nullification of the third floor of a building constructed in accordance with prior plan constituting a two-floor of vested right included to an area desisted for public services is a correct ruling” however on 1984 Council of State has decided as follows: “in the alteration on zoning plan since the floor quantity is decreased, ceasing the construction in accordance with the granted permit when the 4th floor column in constructed is legitimate.”
Recently, decisions of Council of State are in order, and it is agreed upon that parts or floors built bodily pursuant to construction and occupancy permits granted in accordance with the existing zoning plan will be protected as to respect to vested rights principle. When determining the scope of vested rights by Council of State; not only the compliance of construction permits with law in accordance with the existing zoning plan, but also the level of the building constructed in accordance with permit must be assessed.
If it is enabled to construct in a larger area or higher in comparison to the existing permit with an alteration made to zoning plan after the construction has been initiated, beneficial additional rights may be obtained by applying for a construction permit again or requesting for amendment.
Besides, Council of State declares that the pecuniary loss and intangible damages must be compensated by related municipality in accordance with liability of Administration principle and does not accept compensation for loss in value arising from the alteration in zoning plan inexistence of a building.
III. EFFECTS OF NULLITY OF ZONING STATUS BY COURT DECISION TO CONSTRUCTION AND STRUCTURING
In case of nullity of zoning plans and individual transactions related to implementation to be done in accordance with plans, legal status of the level surfaced by nullity decision is an important issue.
In accordance with the Zoning Code article 31, considering the completion date of construction is the date of granting occupancy permit, it is clear that every alteration will effect structuring. However, to deem the construction totally illegal will not be possible by ignoring Administration’s will upon an application for using the construction right made by the owner or declared directly by Administration.
It is clear that the decision made by the Administration and effecting zoning status will not affect the level of construction, and construction level will be protected in accordance with “legal security” principle and “stability of Administrative transactions”. On the contrary, situation will be more complicated if the will of altering the zoning status declared as ruling of court. What will be the situation of construction in case revoking zoning plan or ruling a decision for nullity of construction permit after obtaining the construction permit and reaching to a level in construction?
An interpretation as Administrative jurisdiction’s will for nullity of zoning plans declared shall not affect the construction permit and built construction negatively would be right in accordance with general principles of Administrative Law. It is not possible that an individual transaction acted in accordance with a legislative act becomes ineffective since the legal ground is invalidated. It is also not possible to say that the Administration should revoke the granted construction permit in case the zoning plan is invalidated. The party filing against zoning plan should also file against construction permit. An interpretation as a person, who does not file a lawsuit against a transaction which he claims to be illegal, may claim that the Administration should invalidate or revoke the said transaction would be constrained. Party filing a lawsuit against the plan should file against the construction permit.
A reverse interpretation would render the people, who are acting by relying on various wills declared by the Administration, unprotected and helpless. During the process starting with environmental plan, people who are initiating construction facilities relying on the will declarations confirming each other as master plan, tentative plan, parceling, zoning status certification, grating the construction permit, should be able to claim for protection of the existing construction structure status by the date of ruling. Otherwise no one would temp to construct. Not protecting a completed building retrospectively by stating that “legal ground is revoked” is an approach interfering and damaging the essence of property right.
