Not all prolongation of building projects is necessarily foot-dragging

A recent ruling in the Supreme Court in the matter of the Apollonia plan is an example of the fact that not every building plan deserves fast track approval • Judge Yitzhak Amit, who was of a minority opinion, stated it well: “This is an attempt to thread an elephant through the eye of a needle” "

08.07.2019 | Adv. Haim Waintrob

A Supreme Court ruling was recently handed down in the matter of the Apollonia building plan. On the agenda was a decision by the National Planning and Building Committee for Priority Housing Areas (Vatmal) to approve a plan to construct 7,000 residential units on a site located between the Nof Yam neighborhood in Herzliya and the areas of Rishpon and Gaash to the north.

At the heart of the decision was an environmental risk survey, which has not as yet been completed, to check for contamination of the land arising from past activity of an Israel Military Industries plant on the site.

The Supreme Court Justices were divided in their opinions: The majority opinion (Justices Yosef Elron and Yael Wilner) believed that there was nothing to prevent approval of the plan even if the survey had not yet been completed, since its findings would only be relevant to the implementation stage of the plan. Therefore, issuance of permits would be contingent on completion of the survey and implementation of its conclusions. Justice Yitzhak Amit, on the other hand, in a minority opinion, believed that the plan should not be approved prior to completion of the survey since its findings could affect planning of the site.

The controversy that erupted between the Supreme Court judges extends far beyond the particular case of Apollonia and deals with the question of how to examine whether any building plan is suitable for bringing to discussion before the Vatmal.

The National Planning and Building Committee for Priority Housing Areas Law was enacted in 2014 (the Vatmal Law) as a temporary provision for a period of four years (and was extended for an additional year), against the background of the decline in the supply of residential apartments, which led to an increase in housing prices. The Vatmal Law was intended to increase the supply of apartments through a planning track that would serve as a “fast lane” for approval of large-scale residential housing projects. Under the auspices of this law, planning procedures were shortened in the planning committees, so that it would be possible to approve plans very quickly.

Because of the ongoing housing crisis, talk of new legislation comes up frequently, where the common denominator is to shorten the regular planning processes and replace them with faster ones. Suffice it to mention the establishment of the Committee for Housing Construction (the Valal) in the 1990s, as a response to the needs of the wave of immigration from the former Soviet Union countries, or the Planning and Building Procedures Law to accelerate residential building, which has the same purpose. The disagreement that arose in the Apollonia affair therefore extends beyond the scope of the Vatmal Law and is applicable whenever the legislator seeks a fast planning track.

Justice Amit  believes that “the Vatmal Law is not aimed at expediting planning procedures in all circumstances; it is intended to allow for a shortening of planning processes when there is no justification for extending them”. In his opinion, what we have on the table for discussion is a complex plan that presents the most significant planning and implementation challenges for the construction of thousands of housing units,  set against the fact that the land is polluted, the need to build a new interchange on the coastal highway, and other issues.

One can also learn of the complexity of the plan from the estimated timeframe for its implementation (approximately 15 years), where decontamination of the land itself is expected to continue over a period of three years. The inclusion of such a complex plan in the Law’s “fast lane” can be likened to Justice Amit’s illustrative language of  “an attempt to thread an elephant through the eye of a needle”.

In contrast was the opinion of Justice Elron. In his view, there is no place for pre-classification of plans submitted to Vatmal, and in the Law itself there is no trace of the statement that it is not possible to take a plan through the fast track. According to him, “a rapid increase in the supply of housing units” is something that deserves to be discussed in the Vatmal track.

With all due respect, the position of Justice Elron illustrates the risk in legislative processes whose objective is to shorten planning processes. There is no dispute that a rapid increase in the supply of apartments, with an emphasis on rental apartments for populations in need of them, is an essential and necessary objective. The question is how to balance between achieving this objective and proper planning, where the price for such achievement involves a costly amount of time. When a complex program such as Apollonia is on the table, the planning process is indeed lengthened. However, this prolongation does not necessarily indicate unnecessary procrastination. Sometime the extension is intended to enable a thorough and comprehensive discussion of the planning aspect.

It is true that the criterion for a fast track or the drawing out of a plan is indistinct and obscure, but the planning institutions and the courts must pour concrete content appropriate to each plan. I do not believe that such an examination could endanger the explicit objectives of the Vatmal Law.

The writer is an expert in planning and building and a partner in law firm Hamburger Evron & Co.