Turkish zoning and permitting are regulated by a number of different categories of law and fall under the authority of state and municipal bodies, often giving rise to unique challenges.
MOST modern states have acknowledged that the free world of the 21st century is not completely free when it comes to enjoying private land rights. The legal regime for zoning and permitting sets forth the procedure for how the state may restrict individual rights over real property. Although zoning and permitting activities are undoubtedly for the public good, they must be treated delicately since their outcome has an effect on the very essence of the property rights of individuals and companies. Under Turkish law, zoning and permitting procedures are not governed by a single statute, and not enforced by a single governmental authority but are instead regulated under multipartite legislative sources, which results in a multiple authority regime governing zoning and permitting activities.
Main Legal Principles
Zoning and planning are realized by virtue of administrative acts of governmental or municipal authorities. Just like all administrative acts, the common interest of the public (“public interest”) is a pre-condition for zoning and permitting activities. As per the Council of State’s precedents, the concept of public interest must be assessed by taking into account the conformance with regional conditions; feasibility with regard to local, environmental, social, and economic conditions; satisfaction of future demands and urban regeneration; convenience with the provincial needs of the relevant city; and technical applicability.
Zoning and permitting legislation is based on a hierarchy of scales. The zoning plan with a higher scale always prevails over a smaller scaled zoning plan, and construction permits are issued based on the smallest scaled zoning plans, known as implementation plans, which then constitute the basis for the construction and occupancy permit. It is therefore critical that all of the plans and the permits be in conformance with one another.
Zoning plans are classified according to their scale under the Zoning Code, and the types of zoning plans in ascending order are as follows:
- Master Zoning Plans: These 1/100,000 and lower scaled zoning plans are prepared for large metropolitan areas, and define the zoning function of huge areas like highways, railways, airways, seaways, power plants, dams, and channels.
- Environmental Zoning Plans: These 1/50,000 to 1/25,000 scaled zoning plans indicate the zoning classifications of various districts within a city or a region.
- Development Plans: These 1/5,000 scaled zoning plans show the main roads and parcels, with the general construction terms and zoning classifications assigned to each parcel.
- Implementation Plans: These 1/1,000 scaled zoning plans provide all parcels and zoned roads as well as information about the construction terms such as zoning status, height limitations, set-backs, construction coefficient, construction base area coefficient, etc.
Construction and Occupancy Permits
The Zoning Code requires developers to obtain a construction license before initiating any construction activities. The licenses must certify that the contemplated project meets the zoning requirements of the area, as well as the architectural, static, electrical, infrastructural and other standards applicable to the relevant district. Once construction is complete, an occupancy permit will be issued certifying that the construction has been completed in compliance with the project plans (e.g., architectural design, static reports) appended to the construction permit, and that the construction can be inhabited or used for its intended purpose. Construction and occupancy permits are valid and binding only if they are issued by the competent authorities in accordance with the zoning plans in effect at the time of issuance.
Turkish law does not set forth a uniform authority regime to oversee zoning and permitting and there are many exceptions and alternatives introduced by other applicable legislation.
Regular Procedure and Authorities
The general procedure described under the Zoning Code is for the metropolitan municipalities to prepare master zoning plans, environmental zoning plans, and development plans, but for the district municipalities to prepare implementation plans, which must then be approved by the metropolitan municipalities. Also, if the competent district municipality fails to prepare an implementation plan within one year from the effective date of the related development zoning plan, the relevant metropolitan municipality would be entitled to prepare and approve the implementation plans ex officio.
As for permitting, district municipalities are authorized to assess applications and issue construction and occupancy permits for projects.
Irregular Procedure and Authorities
Various pieces of legislation allocate planning authority for unique areas among various governmental bodies. The areas subject to irregular authority are as follows:
- Slum Transformation Areas and Mass Housing Areas: the Directorate of the Housing Development Administration (“TOKİ”) is authorized to plan slum transformation and mass housing areas. The Ministry of Environment and Urbanization (the “Urbanization Ministry”) is also entitled to intervene and conduct planning activities in place of TOKİ. In mass housing areas, TOKİ prepares plans which must then be approved by the competent municipality. If the relevant municipality does not respond to an approval request from TOKİ within 3 months, TOKİ is entitled to by-pass the approval procedure and approve the plans ex officio.
- Special Project Areas and Urban Regeneration Areas: the Urbanization Ministry is commissioned to prepare the zoning plans for these areas.
- Culture and Tourism Preservation and Development Areas, Tourism Areas, and Tourism Centers: the Ministry of Culture and Tourism (“Tourism Ministry”) has the authority for the planning activities.
- Shores and Coastlines: the Urbanization Ministry is authorized to plan these areas. However, if the shore or coastline corresponds to an area mentioned under item 3 above, the Tourism Ministry is entitled to act in place of the Urbanization Ministry.
- Filled Lands and Drainage Areas: If such areas are to be used for tourism purposes, the Tourism Ministry has planning powers; otherwise it is the Urbanization Ministry.
- National Parks: The Ministry of Forestry and Water Affairs has the planning powers. If there is any construction to be done in such areas, the Urbanization Ministry will become involved for the planning activities.
- Special Environment Protection Areas: The Urbanization Ministry has the planning powers.
- Areas in Southeastern Anatolia Project (“GAP”): the special GAP Development Administration is the planning authority.
- Areas of Privatization, and Lands and Areas Owned by Entities that are being Privatized: the Privatization Administration prepares the zoning plans and the High Council of Privatization (both established under the Prime Minister’s Office) approves the zoning plans. If a public service is being privatized, the plans of the areas subject to private investment will be prepared by the Urbanization Ministry after obtaining the opinion of the Privatization Administration.
- Industrial Areas, Organized Industrial Areas and Technology Development Areas: the Ministry of Science, Industry and Technology is the competent authority for the zoning plans of such areas. The Urbanization Ministry is the competent authority for the areas that are not within the territories of the organized industrial areas.
- Agricultural Areas: the Ministry of Food, Agriculture and Livestock prepares the zoning plans.
- Health Sector Public-Private Partnership Investment Areas: the Urbanization Ministry prepares and approves the plans upon the request of Ministry of Health.
Turkish law also provides irregular authorities for certain specific areas such as the Istanbul straits coastline, airport areas, ports, railways, highways, the Ankara Atatürk Forest Farm, Olympic areas, etc.
Further to the above explicitly stated rules, Turkish law contains catch-all provisions granting the Urbanization Ministry the power to intervene and conduct zoning and permitting activities by subrogating other competent authorities (discussed below), which leads to a centralization of powers.
Recent Legislative Developments: the Centralization of Powers
Recent legislative activity has created many exceptions to the general procedure, by which governmental bodies have been granted the authority to prepare and approve zoning plans with the clear aim of uniting the zoning powers within the hands of the central government. The most significant and groundbreaking changes in the applicable rules are as follows:
The empowerment of TOKİ with planning activities, (2008): TOKİ is a governmental entity operating under the Prime Minister’s Office for the mass housing of low-income groups of people. By virtue of the latest amendments to the Mass Housing Code, TOKİ was empowered to prepare the zoning plans for slum areas to be admitted into the regeneration program, collective housing areas, and even the lands that are owned by the TOKİ itself. Such new authorities for TOKİ were also accompanied by the right to expropriate private lands, which practically enables TOKİ to prepare plans for any land within the borders of the Republic of Turkey, as long as it is designated as a collective housing area or regeneration area. Although plans prepared by TOKİ are subject to approval by the competent municipalities, in the event that such approval is withheld for three months, TOKİ is able to subrogate the competent local authority and approve the relevant plans itself.
Catch-all provisions for the Urbanization Ministry, (2011): In 2011, the Urbanization Ministry became entitled to approve zoning plans which have been submitted but not approved by the competent municipalities within three months, and to grant construction or occupancy permits which have been requested but not issued by the local authorities within two months. Moreover, the Urbanization Ministry became a supervisory authority that controls all activity concerning the preparation of zoning plans and permitting. To complement its supervisory authority, the Urbanization Ministry was also equipped with executive powers enabling it to correct any and all discrepancies by subrogating the competent authorities.
Ministry’s role in urban regeneration, 2012: Located within a seismic zone, the Turkish government’s urgent action plan is to tear down weaker buildings and replace them with newer and stronger structures. To that end, the Code on the Transformation of Areas under Disaster Risk was enacted in 2012, which removes local municipalities from the zoning procedure. The Urbanization Ministry is now conducting the planning activities for urban regeneration projects that have covered virtually all of the metropolitan centers in Turkey, with multiple new construction projects happening on nearly every block in the downtown areas.
Evaluation of the Current System
Zoning and permitting legislation is closely connected with real estate investment. Under Turkish administrative law, administrative acts are only valid if performed by a duly authorized administrative body. The current legal regime has proven to have significantly negative impacts on legal predictability as it introduces confusion in determination of competent authority. Due to the lack of a unified regime, zoning plans and permits are frequently challenged before courts with claims focusing on violation of the applicable authority regime and the hierarchy of scales, and these disputes risk the suspension or demolition of real estate projects.
As regards a very up-to-date example, the Istanbul 4th Administrative Court ruled to suspend the 1.5 billion USD Ataköy Yacht Marina Project in October 2016, as a preliminary injunction where the local municipality (Bakırköy) had refused to approve the construction permit request of the developer, and the Ministry had issued the relevant permit subrogating the Bakırköy Municipality. The Municipality eventually claimed the cancellation of the permit, and the court ordered that the construction activities of the developer should cease, pending the final adjudication, as further construction might result in an aggravation of the damage. This particular event reflects the severe risk caused by the confusion over authority and the political tension between the central and local administrations.
The zoning plans prepared by the Urbanization Ministry or TOKİ have also been criticized by the administrative courts for omitting to take into account the local parameters of the zoning area. In a long lasting zoning dispute concerning the famous Maslak 1453 Project, the administrative court cancelled the zoning plans that were prepared by TOKİ and approved by the Urbanization Ministry three times on the grounds that the plans had been prepared without a sufficient local examination and study taking into account the characteristics of the area.
Another example of the conflict of authority resulted in the cancellation of some zoning plans in İzmir recently. The Urbanization Ministry approved the proposal of an amendment to implementation plans that had been previously rejected twice by the district municipality (Bornova, İzmir). However, the competent administrative court cancelled the plans pertaining to an area where a large factory was built. The impact of the cancellation is currently unknown, yet a long-lasting dispute seems underway.
Some particular cases carry the risk that local municipalities would be in a position to cooperate with the Ministry to abuse the multiple authority regime in order to push through the development of large scale projects against a judicial blockade. The Bursa Sıcaksu area, with massive thermal spring water sources, is a good example of that kind of administrative cooperation. The Bursa Metropolitan Municipality had twice prepared the 1/5,000 and 1/,1000 scaled zoning plans for the contemplated large-scale urban regeneration and tourism project in the Sıcaksu area, but the plans were consistently cancelled by the administrative courts. Only then, the Urbanization Ministry intervened and procured a decree for the announcement of the relevant area as a “high risk zone” and amended the permitted use in the zoning plans to include “tourism.” The Council of State interpreted this action by the Urbanization Ministry as a by-passing of previous administrative court rulings, and eventually cancelled all successive administrative acts on the grounds that they were made with a lack of public interest.
At the root of Turkey’s multiple authority regime is a desire to sustain necessary growth in the real estate sector. During recent years, the profit margin of Turkish real estate developers has been higher than any other subsector of real estate. The Turkish real estate market has proven attractive to foreign investment as well. International developers, property managers, and investment funds are all now investing in Turkey. The government intends to make sure that the bureaucracy keeps pace with the dynamics of the fast growing Turkish real estate industry.
A motive for centralization is to prevent the blocking of large projects due to political rivalry between local municipalities via centralized zoning and permitting regime. The issue has a public interest aspect as well; since Turkey’s overpopulated cities sit on a very active earthquake zone, the government aims to expedite the regeneration of risky buildings and areas by virtue of irregular (and short-cut) regimes of zoning and permitting. So far, it seems to have worked.
The Centralization Debate Continues
The debate over the financial and operational benefits between a centralized governance regime and an idealistic participatory regime is not unique to Turkey, and many investments remain highly profitable in other centralized states. Although the Turkish regime may give rise to various disputes between investors, developers, landowners, municipal bodies, and the central government, developers can still mitigate their risks with proper guidance. As with real estate investments in other centralized states, savvy investors in the Turkish real estate market should rely on experienced legal counsel to find solutions to any issues that may arise.