דף הבית מפת האתר חוקים ותקנות כניסה לישראל דרכונים יציאה לחו"ל בטוח נסיעות לחו"ל השכרת רכב תחבורה שיט תעופה מורי דרך בתי מלון טיולים מאורגנים סוכנויות נסיעות אתרי תיירות טיים שרינג מועדוני נופש שדות תעופה עידוד השקעות הון קישורים דף קשר TOURISM LAW שונות IFTTA פורום/Forum חיפוש/SEARCH

 

 

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.