The zoning readjustments that municipalities carry out of their own motion, and the parcelling plans that form part of them, are administrative acts that take effect independently of the will of the owners of the immovable property concerned. The aim of this procedure, governed by Article 18 of Zoning Act No. 3194, is to subject land and plots to readjustment so as to obtain development parcels of regular geometry that conform to the zoning plan. Article 18 also constitutes the statutory basis of a procedure that amounts to a direct interference with the right of property.
During the procedure, the parcels within the readjustment area are dealt with not individually but as a whole; at the end of the planning exercise, public uses such as roads and green spaces are created on the development parcels by the State. In return for the increase in value that these changes produce in the parcels, a DOP deduction is made from the owners, and the public thereby acquires immovable property without paying any consideration. For this procedure, also known as the “dough” rule, to be regarded as lawful, certain conditions must be satisfied; otherwise the objection and annulment routes may be pursued against the act with a view to having it set aside by a court decision. Indeed, parcelling decisions annulled on account of unlawfulness in the DOP deduction in particular are frequently encountered in practice.
The stage that follows the making of the zoning plan is the actual creation of parcels conforming to the plan. Once the parcels have been produced in this way, the housing, social facility and technical infrastructure needs of the planned area also take concrete shape. Below we examine in detail the purpose of the parcelling procedure that enables these needs to be met, the conditions for its lawfulness and the legal routes available where those conditions are not satisfied.
Purpose and Nature of the Procedure
The purpose of this scheme, known for short as the “Article 18 application” because it appears in Article 18 of Zoning Act No. 3194, is to produce regular development parcels compatible with the zoning plan. The precondition for the procedure to be applied in an area is that a zoning plan be in force there.
Whereas zoning plans are concerned primarily with the location and function of the immovable property, the Article 18 procedure bears directly on the ownership relationship. Under the procedure, the parcels in a given area are treated as a single whole without the consent of their owners being sought; they are reshaped in conformity with the zoning plan having regard to the requirements of the area, and as a result an increase in value arises in the development parcels. In carrying out the readjustment, a DOP (development readjustment share) deduction is made at an equal rate from all the parcels brought within the procedure, and the areas obtained through those deductions are set aside for public use.
The function of parcelling is to ensure that the local needs identified in the zoning plan are actually put into effect. In other words, thanks to the DOP deductions made in return for the increase in value of the parcels, public areas such as roads, green spaces and school sites pass into public hands without any consideration being paid. In this respect the administration is able to acquire immovable property without resorting to expropriation; the act is characterised as a form of lawful interference. In practice the same institution is also encountered under such names as the parcelling plan, the development readjustment share deduction and the dough rule.
Stages of the Procedure
Parcelling is completed in three successive stages.
First, the existing ownership relationship in the area to be readjusted is established, and those ownership interests are assessed as a single whole.
At the second stage, the development readjustment share may be deducted from that whole. The deduction must be made at the same rate from each of the plot owners in the area. No deduction exceeding 45% of the surface areas of the land and plots subject to readjustment as they stood before the readjustment may be made. A DOP deduction is not, moreover, a requirement of parcelling; the administration takes that course only where there is a need for it. The upper limit of the deduction is 45% of the surface area of the immovable property, and a lower rate may be set according to need, but that limit may not be exceeded.
At the final stage, what remains after the deduction has been made is divided into parcels and distributed among the owners on the basis of the ownership shares held at the outset.
The Development Readjustment Share Deduction
Parcelling brings about an increase in value in the readjustment area. In ordinary circumstances an owner whose immovable property is converted into a development parcel in this way would be expected to pay a sum to the administration.
The administration, for its part, also has immovable property that it must acquire in order to meet public needs. It is because of these two requirements that the administration has been empowered, under Art. 18 of the Zoning Act, to make a deduction from immovable property whose value has increased as a result of parcelling.
Within that framework the DOP deduction is the counterpart of the increase in value that the Article 18 procedure produces in the parcels. The administration may thereby acquire up to 45% of the plot or land without making any payment to the owner. That deduction does not impair the essence of the right of property; it is regarded as a requirement of the public interest and must be taken at an equal rate from all owners of immovable property.
Unlawfulness Warranting Annulment
The Criterion Governing the Distribution of Parcels
The development parcels created as a result of the readjustment must so far as possible be allocated from the location of the former parcel or from the position closest to it.
Rules Governing the DOP Deduction
The deduction must be made at an equal rate from all the parcels within the same area of application. The fact that immovable property within the readjustment area belongs to public authorities makes no difference in this respect.
The rate of deduction may not exceed 45% of the surface area of the immovable property.
The rule is that the development readjustment share is taken from a parcel once only. Where, however, an amendment to the zoning plan has brought about an increase in the building conditions and in the population, an additional deduction may be made, provided that the increase in value arising in the parcel does not fall below the previous value. That additional deduction may in turn go no further than bringing the DOP rate applied in the first procedure up to 45%.
For details of how the deduction is calculated, our note entitled What Is the Development Readjustment Share (DOP) Deduction? may be consulted.
Difference in Value Before and After the Readjustment
There must be no difference in value between the parcel a person brings into the readjustment and the parcel allocated to that person after it. Where such a difference emerges, the act becomes contrary to the provisions of the statute and the regulation and must be annulled. The route to be pursued in that event is an action for annulment, not an action for damages before the administrative courts.
No Fresh Parcelling Without a New Need Arising
- Once the Article 18 procedure has been carried out and the needs of the locality met, no fresh parcelling may be undertaken unless developments give rise to new needs by way of an amendment to the zoning plan. An act performed to the contrary will be unlawful and may therefore constitute a ground of annulment.
Commencing Parcelling within the Five-Year Period
As a matter of principle, the municipality or the governorship must draw up and approve parcelling plans within five years of the date on which the zoning plans become final. Where, in an area from which a DOP deduction has been made, parcelling is not carried out or is not begun at all within five years even though the zoning plans have become final, the owner’s right of property is restricted in a continuous and serious manner. That situation may amount to de facto expropriation and may give rise to the liability of the administration in damages. Detailed information on the subject is set out in our note entitled Legal Interference Amounting to De Facto Expropriation.
Practice Following Annulment by a Court Decision
Where a parcelling decision is annulled by a court decision, matters revert to the original cadastral parcel, that is to say to the root parcel. A fresh parcelling must then be carried out, having regard also to what the court decision requires. Carrying out a fresh readjustment on the basis of development parcels that, having been annulled, have been erased from the legal world is unlawful and may result in the annulment of the new act as well.
Application of Article 14(8) of the Regulation on Land and Plot Readjustment
Where immovable property was previously subdivided and registered and has subsequently been brought within a parcelling scheme, a development readjustment share may be taken to the extent of the difference required to bring the rate of cession taken on the subdivision of the original parcel up to 45%.
In a dispute examined by the Council of State, the owner of the immovable property had made a cession in the nature of a “donation” for a green space. The higher court assessed that cession as being of the same nature as a cession made for a public area. It accordingly concluded that the donation made on the merger and subdivision of the original parcels had to be set off against the development readjustment share to be taken from the immovable property. Making an excessive deduction while disregarding a cession previously made by the owner therefore constitutes unlawfulness and may lead to the annulment of the parcelling decision.
For more detailed information on the forms of unlawfulness capable of warranting the annulment of zoning plans, our note entitled Grounds for the Annulment of Zoning Plans may be consulted.
Bringing an Action for Annulment
An action for annulment is brought by persons whose interests are infringed, on the ground that the administrative act is unlawful in at least one of its elements of competence, form, cause, subject matter and purpose. Since the Article 18 procedure, also known as parcelling, is a unilateral administrative act performed by the administration on the basis of public power, it may form the subject matter of such an action. It is therefore possible to bring an action for annulment before the administrative courts against parcelling decisions.
Detailed information on zoning readjustments and the actions that may be brought against them is addressed in our note entitled Objection to a Zoning Plan and the Action for Annulment.
Court with Subject-Matter and Territorial Jurisdiction
In actions for annulment directed against zoning readjustments and parcelling decisions, the court with subject-matter and territorial jurisdiction is the administrative court of the place where the immovable property is situated.
Standing to Bring an Action
Parcelling decisions may be made without the consent of the owners of the plots and land or of other rights holders. The power to bring an action for annulment against those decisions belongs to the owners registered in the land registry and to other rights holders. Persons who do not hold the status of owner but assert a right in the land registry may bring an action only if they have the record of the immovable property registered in their own names. Persons with no connection at all to the land registry may not make a parcelling decision the subject of an action.
Frequently Asked Questions
Is representation by a lawyer mandatory in proceedings before the administrative court?
Under Turkish law the parties may defend themselves in person before the court; save for certain exceptions, there is no obligation to be represented by a lawyer. Nor is there any requirement, before the administrative courts, to be represented by a lawyer practising in administrative law.
However, given the complex structure of administrative law legislation and the short and strict nature of the periods laid down in the Administrative Procedure Act No. 2577, conducting the process without a lawyer may lead to errors, both procedural and substantive, that are difficult to remedy. In order to avoid any loss of rights in administrative proceedings governed by detailed rules, it is advisable to obtain assistance from lawyers practising in administrative law before taking any step.
May the development readjustment share be converted into a sum of money?
Where such a need arises, the amount of that share may be converted into money to be used in an expropriation carried out for the purpose of implementing the readjustment.
Where are the parcels given to owners allocated from?
Allocation is made in the first place from the location of the immovable property brought within the readjustment. Where that is not possible, a parcel is given from an equivalent area in the closest position.
What happens if the root parcels cannot be restored despite an annulment decision?
Where it is established that, although the zoning application has been annulled by a final court decision, the pre-application root parcels cannot be restored by way of reversal operations because of various legal or practical impossibilities, a suitable location within the area of application is allocated by the administration in the first place. The consent of the rights holders of the parcel in issue is required for this. If no agreement can be reached, the value of the immovable property is paid at its market price, calculated by reference to the claimant rights holder’s position in the root parcel and after deduction of the development readjustment share applied in the scheme.
Must an objection be made before bringing an action against a zoning plan?
An objection may be lodged with the administration within one month of the publication of the plan. It is not, however, necessary to exhaust the objection route in order to bring an action for annulment; an action for annulment may be brought directly against zoning plans.
Independent Legal Assessment
What is decisive in parcelling disputes is not whether the act is wholly flawed but at which point the unlawfulness occurred. In practice a significant proportion of annulment decisions rest on concrete breaches such as the failure to apply the DOP deduction at an equal rate, the exceeding of the 45% limit, or an allocation made without any connection being established with the former parcel. For that reason, arguing the rate of deduction and the place of allocation comparatively and on the basis of documents, rather than pleading unlawfulness in the abstract, has a direct effect on the outcome in the statement of claim.
Another critical dimension of the process is timing. Where parcelling has not been begun although five years have passed since the zoning plan became final, a claim for damages may need to be considered separately from the action for annulment. Which claim is to be pursued by which route must be correctly identified from the outset.
In a given file it is appropriate to give priority to the following points:
- Comparing whether the DOP rate has been applied equally across all the parcels within the area of application
- Checking whether cessions and donations previously made have been set off against the deduction
- Examining whether the parcel allocated is equivalent to the former parcel in terms of location and value
- Investigating whether parcelling has been carried out a second time without any new need having arisen
- Calculating the period between the date on which the zoning plan became final and the date on which the application was begun
- Clarifying the position in the land registry, for the purposes of standing to sue, before the date of the act
Independent Legal advises throughout the process in disputes arising from zoning law, from the review of parcelling decisions to the conduct of the action for annulment and any related claims for damages.