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Legal ReviewANNULMENT LAWSUITS IN URBAN TRANSFORMATION

Şubat 24, 2015by admin

I. INTRODUCTION

New terms such as risky area, risky construction, and area of reserve construction have been regulated by Law on Transformation of Areas under the Risky of Catastrophe (The Law of Urban Transformation) numbered 6306 published on 31st May, 2012 and these terms are subjects of administrative jurisdiction. Lawsuits can be initiated against administrative proceedings in pursuant to the Urban Transformation Law within the scope of Administrative Procedure Law numbered 2577 (İdari Yargılama Usulü Kanunu-İYUK).

Hereby our article, administrative suits will be examined against risky construction, risky area and area of reserve construction decisions.

II. THE ANNULMENT LAWSUITS IN THE URBAN TRANSFORMATION

Article 3 of the Law of Urban Transformation has been indicated authorization of determination about the risky construction. After the determination of “risky construction” in accordance with this article, this situation is informed with the determination of risk report to related holder of rights. Beneficiaries can object to the said report within 15 days starting from notification.

In the sense of administrative law, objection to the report in other words applying to higher authority is not compulsory. Beneficiaries might not object the report and but they might directly initiate a lawsuit against the report in accordance with article 7 of İYUK within 30 days from the date of notification or learning as stated the ninth paragraph of article 6 of the Urban Transformation Law. Authorized court will be administrative court of the risky construction takes place.

If risky construction is demolished and property becomes a land in accordance with the Urban Transformation Law and in addition to that if owners cannot make a decision with two thirds majority or they do not want to re-evaluate the property, the administration may make a decision of expropriation. The decision of expropriation is an administrative act and annulment suits can be initiated against it within thirty days in the administrative jurisdiction.

Besides that, if one-third of minority owners’ shares are sold by auction by the Provincial Directorate of Ministry of Environment and Urban Planning (the Ministry) in the scope of Urban Transformation Law, owners can also initiated administrative lawsuits within 30 days against sale transactions starting from notification date.

In pursuant of the Urban Transformation Law, risky area is where there is loss of life and property risk bearing yet its soil structure or structuring on it. Such areas are determined by the Ministry or administration after taking the Disaster and Emergency Management Presidency’s opinion by the Council of Ministers upon the Ministry’s offer. The decision of risky area is declared in the Official Gazette. The decision of risky area is an administrative act taken by the Council of Ministers and annulment lawsuit can be also initiated at the Council of State against the Council of Minister decision in accordance with the article 24 of Law of Council of State. The 30 days term of litigation starts from the declaration of the decision of risky area in the Official Gazette.

Safe buildings in the risky area can be incorporated into project which will be applied for the risky area by the Ministry’s decision concerning the application integrity. Hereby, the Ministry’ decision is in question and this decision is a general regulatory administrative act. Again an annulment lawsuit can be initiated against this decision. At the same time, other annulment lawsuits can be filed against other administrative acts about projects which will be made in the risky area by the Municipality, the Provincial Special Administration or the Ministry. The term of annulment suit is 30 days from the date of announcement.

In terms of Urban Transformation Law, it becomes obligatory for administration to ensure all structure are resistant to natural disasters including earthquakes. In respect of this duty, the administration should take necessary measures such as determining reserve construction areas, to transfer people from the risky areas to the reserve construction areas with providing security of life and property.

The decision of reserve construction area is taken by the Ministry and declared in the Official Gazette. This decision is a general regulatory administrative act. The annulment suits and full remedy action can be initiated at the Council of State in accordance with the article 24 of the Law of Council of State.

Numerous administrative acts are taken by public authorities and relevant administrations considering properties of holder of rights in the reserve construction areas. Again annulment lawsuits can be filed against such administrative acts in the administrative court. The term of litigation is 30 days starting from the declaration of the reserve constructions area in the Official Gazette or the notification of administrative actions made for people concerned.

III. CONCLUSION

Beyond any dispute, the urban transformation is an obligation for our country. Administration’s primary duties are to provide safe living with safe building, to prevent unplanned urbanization, to provide aesthetics and ordered city life; to improve quality of life with providing cultural, green space and other living spaces. While aiming to improve quality of life to the highest level by urban transformation proceedings, it is imperial to provide legal protection against unlawful administrative actions by annulments of administrative actions with fast litigation process which is also vital for being state of law.