Analysis of the Law on Transformation Areas
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Transcript of Analysis of the Law on Transformation Areas
Analysis of the Law on Transformation Areas
Under Disaster Risk
Adopting ‘the government, officials, state’ in the definition of public policy, points to
where the decision and policies with all relationships with other parts of policy such as policy
package, implementation taken and source of those policies. Put aside the disputes on
questions about agenda setting for instance what affects and how can intentionally be
affected, for a while. What government or state means and how using these words in defining
public policies affects those who are dealing with it whatever the title as a bureaucrat,
professional, academician or student. What those words connote and evoke focuses especially
on the concept of regulation. At this point it is crucial to grasp essence of the regulation. The
letter and spirit, aim, application/implementation of regulation provides subtitles.
Probably the most complicated form of policy making is the urban regeneration
policies. Such policies are directly related with not only spatial issues but also rights of the
targeted population. Relationship between policy package and implementation process is an
intertwined one and is one of the factors that have crucial significance on setting down whom
worse off and who better off. Instead of placing the issue on the floor of grand ideologies such
as role of state as class apparatus or assigning a relative autonomy, it is possible to see how a
small piece of empirical reflection of ambiguity is hard as much as stone. It is possible to
argue that policy package stands as airborne concepts, terms and it gains its content and
meaning at the implementation level. Whatever is the aim to regulate, package by its very
nature has to be compatible with existing ones even before it gains its meaning. Otherwise,
the problems are already ‘wicked’ and ‘benign’, the situation will lead to chaos. In this sense
regulation which is also reflects a part of policy package, has to be not only compatible but
also non-discriminating.
The Law on Transformation Areas under Disaster Risk is a good one to evaluate the
accordance and differentiation of ambiguity, the aim and the implementation with other
existing rules, regulations. Since the law is very recent and disputable, it is hard to find a case
where it is solely applied. In my paper I will try to analyze the law in terms of loopholes,
ambiguities and the reflections of applications in the case of Derbent, which can be evaluated
as a straw case, as much as the law applied. It is possible to reach broader implications on
ideology and tools of implementation. However, the point of stress is that how the loopholes
and ambiguities may donate implementers with a huge discretionary power, to use those
ambiguities as a threat to rights of people such as property and shelter. In first part I will try to
analyze, the law and its’ application implication. In the second part, I will mention about the
Derbent case. In the last part, there will be an evaluation.
Analysis of the Law and Application Regulation
The law was passed in 16 May 2012. The law apparently has ambiguities and
loopholes. This ambiguousness may raise important problems in terms of property rights of
target population of urban transformation projects when the law is applied. Most of the
articles are problematic and do not provide even basic framework. It is obvious that this law
huge discretional powers to the executive.
In the first article, the purpose of the law is presented as ‘to provide procedures and
principles of improvement, refinement and renewal of areas that under the risk of natural
disaster and the risky buildings in order to establish safe and healthy living areas convenient
to technical and artistic norms and standards’. However, the law does not provide any
applicable definition of risky areas or risky buildings that will be subjected to articles of that
law. As Chamber of Civil Engineers states when we consider that ninety-two percent of land
of our country is under the threat of earthquake risk, the prominent feature will not be
structure of the soil, will be the structuring on the soil (İnşaat Mühendisleri Odası). In the
second article what makes a building risky defined as ‘petering its’ economic life’ and ‘carries
the risk of collapse or heavy damage’. Article does not answer the questions such as what is
the meaning of petering economic life or even why the term of economic life is used to
define. Also if a building is proved having risk to collapse in anyway, it is possible to be
demolished by state agencies according to law. Last clause of the third article allows
integrating riskless buildings into project because of application integrity. This clause can be
interpreted as a contradiction with the essence of the law. Since the law aims to regulate those
areas and buildings that under the threat of natural disaster, it will be contradictory to include
risky free buildings into the scope of the law (Avcı, 2013, s. 190). By this article, property
rights of owners, tenants or those who have de jure rights on the building or parcel on which
the house, workplace, any kind of building was constructed on may be directly intervened.
Apparently first three articles may be used with bad intentions and in terms of property rights
these articles, enables agencies to demolish even risk free buildings and areas. Also, in these
articles participatory mechanisms are not adopted except state agencies such as Mass Housing
Administration.
In the first clause of fourth article, in the areas that are announced as under the threat
of natural disaster all zoning and construction processes may be temporarily halted. This
article also implies direct limitations to property rights. It deprives the owners to use their
stakes as they wish. As defined, the right of property includes doing everything to the thing or
in the thing that the one owns (as cited in Avcı, 2013). Another problematic issue in the article
lies in the word of temporarily. What the law maker means by temporarily is not stated. It
may result in arbitrariness in the decisions of the agencies and this absolutely intervenes,
limits the right of property. In the third clause of fourth article, it is possible to stop public
services of buildings that declared risky or all buildings in the risky area such as natural gas,
water, electricity supply in response to claim of the related administration. If an owner do not
reach an agreement with actors of project such as state agencies and even his/her building is
not risky but included because of application integrity, it is possible to stop public services
that are basics for continuation of life such as water. As Demirkol and Bereket Baş argue this
law is to force people to abandon their homes and may lead to important health and safety
problems (2013).
The fifth article of the law does not bring obligation for aids to evacuated owners,
tenants, or to those who have limited real rights on the house or the land that the house,
factory or workplace was built up. It is up to institutions that partake in the process whether or
not to subsidy. Also, it is possible to use this article as a mechanism of sanction (Bereket Baş
& Demirkol, 2013, s. 48). It is possible to not accept rights of squatter house owners, tenants
and anyone who may claim de facto rights on building that are subjected to the law.
In the first clause of sixth article two third of the stakeholders’ approval is accepted as
enough to decide rebuilding, sale of stakes, and decision about the type and size of parcels on
which the application will be loaded. According to this article stakes of remaining one third
who do not agree with the project whatever the reason is, may be sold to stakeholders who do
agree on the project. Prices of the stakes will be determined by related ministry and sold by
auction. If other stakeholders do not or cannot buy, the stakes will be in officio registered as
the assets of Department of the Treasury. It is allowed that the rights of the remaining one
third of stakeholders can be denied. This article means that it is possible to abolish property
rights (Bereket Baş & Demirkol, 2013). In the second clause, it is stated that ‘…if the two
third could not reach an agreement, the stake can be subjected to urgent condemnation…’.
When we look to the Law of Condemnation numbered 2942, urgent condemnation is set in
27th article. The reason of urgent condemnation is put up as in case of national defense,
extraordinary situations that are pointed in particular laws, and urgency which is determined
by cabinet degree. This article means that if an area or building is announced as risky it is
possible to limit property rights of all stakeholders. Even we put aside the rights of owners in
risky areas and risky buildings, what is the reason to include risk free buildings to urgent
condemnation?
Moreover, ninth clause of the same article reduces the time of litigation from sixty
days to thirty days for processes that are made according to the law and prevents judiciary to
decide on stay of execution. This article is evaluated as a limitation to the right to legal
remedies (Bereket Baş & Demirkol, 2013, s. 54). Since the court decision about stay of
execution is to provide efficiency in suit of nullity, what article provides may result in
irreversible damages. In the third clause of the eighth article those who disrupt the evacuation,
destruction and valuation acts will be treated according to the Criminal Law numbered 5237
and official complaint will be turned to the prosecution. As it can be inferred, those who has
any kind of rights and want to resist against the acts of administration may be treated as
guilty. Again this article may be used as a threat those who does not want to leave. And at the
end, in the ninth article a list of legislations that are not applicable when processes are made
according to the Law on Transformation Areas under Disaster Risk numbered 6306.
Application Regulation of the Law
It is seen that the regulation of law does not quench the ambiguities in the law. To
begin with, as the 7th article suggests determination of the risky areas and buildings may be
asked by related ministry to the owners at its own expense. If the owner does not do it in
given time, it can be done by ministry or the administration. In the eighth clause of the 7 th
article information about the areas and buildings which are determined risky is reported to
Directorate of Land Registry. This means that if an area or building is registered as risky this
information will be appeared on the title deed. This may be beneficial for who wants to buy a
land or flat. However, if the decision about riskiness is wrong it will affect owners badly. In
the 7th article the owner may apply to related administration for objection. If a stake’s
situation is become definite as risky, as second clause of the eighth article suggests
administration sends a notification to the owner and asks destruction of the risky construction
or the construction on the risky area and gives a due time for destruction. At the end of the
given time, if the owner did not destruct, the administration may give additional time. At the
end of the additional time if the building did not been destructed, the administration asks to
related agencies to stop public services such as natural gas, electricity, water to the mentioned
area. Those who disrupt the evacuation, destruction and valuation acts will be treated
according to the Criminal Law numbered 5237 and official complaint will be turned to the
prosecution. Moreover, the costs of demolition is reported to the Directorate of Land Registry
and the Directorate registers this info on owners land shares as debts, according to the fifth
clause of the eighth article. If municipality cannot do the destruction, it will be done by the
ministry.
After the destruction, as twelfth article provides the value of the real estate either the
destroyed building and the land is determined by a commission includes at least three
members from which will be selected among employees of related institution the ministry, the
administration and the MHA. Along the value determination process, the commission
determines the value according to the 11th article of the Law of Condemnation numbered 2942
and makes use of views of experts, estate agents. As known, the value of condemnation is
determined generally on the basis of tax return. The deal may be done for flat, workplace.
The value of the real estate is subtracted from cost of the new unit which was dealt. These
rights were given to the owners of real estates. However, for tenants, managers and those who
have limited real rights are not lucky as much as owners. The fourteenth article for tenants
and managers puts a provision of having been dwelled for one year to deal for flat or
workplace with related institution. However, the important part is that according to the
fifteenth article if the decisions about rebuilding, sale of stakes, and decision about the type
and size of parcels on which the application will be loaded cannot be taken unanimously,
decision of two third, those who attend meeting of decision not two third of the owners, is
enough to decide. According to same article stakes of remaining one third who do not agree,
may be sold to stakeholders who do agree on the project by auction. Prices of the stakes will
be determined by related ministry and sold by auction. If other stakeholders do not or cannot
buy, the stakes will be in officio registered as the assets of Department of the Treasury.
Another important issue is that in the seventh clause of the fifteenth-A article the real estate
that are burdened with mortgage or charge are not exceptional. This article eliminates third
parties who has lent money or gave credits to the owners. Additionally, legal persons or legal
entities that will made acts in the framework of the law will be benefited from exemption of
taxes such as stamp tax, notary fees, title deed and cadastral fees, municipality fees,
inheritance and transfer tax.
Mapping Derbent (Çamlıtepe) Neighbourhood1
Derbent is a neighbourhood in province of Sarıyer. The neighbourhood is near to Şişli
and Maslak. These two places are known as industrial and business centres. In Derbent
neighbourhood, there exist MESA houses in which people with upper-middle income live,
and squatter houses. With its very existence, Derbent neighbourhood stands as a picture of
socioeconomic differences. Those dwellers in squatter houses are poor people and do not have
houses even in their hometowns (Pınar, 2011). Among dwellers of squatter houses common
jobs that in the neighbourhood are being driver, charlady and repair. In the squatter area, there
exist shopkeepers, craftsmen number of which more than one hundred. Thirty percent of the
dwellers in squatter houses are tenures. The prices rents of squatter houses vary in between
200-400 Turkish Liras (Pınar, 2011). In MESA houses, same price rises to almost 3500
Turkish Liras.
In 24 January 2013, a part of Derbent neighbourhood is announced as risky area by the
decree of council of ministers in accordance with the law on Transformation Areas under
Disaster Risk (Resmî Gazete, 2013). The request for the risky area announcement is made by
The Ministry of Environment and Urban Planning. The important detail about the risky area is
1 Informations about Project is somehow is not accessible on the internet except two news in Radikal. The reason may be that with the operation in 17 December, the whole shares of Yorum İnşaat are purchased and the owner of the firm was took into custody. Thus the crude information on details of project are taken from those two news in Radikal which is added to the references.
that the borders of the area do not touch flats or complexes in site of MESA Houses (İnce,
Derbent'in derdi risk mi rant mı?, 2013). The risky area encloses interestingly the squatter
settlement in Derbent neighbourhood. This situation means that municipalities, local
administration units are inactivated by the law, let alone expecting dwellers’ participation.
Another result of the ambiguity in the law is that with vague definition of risky area, it is
possible to define it on very different principles such as economic value, poor outlook. It is
hard to grasp the rationale behind excluding the apartments from the risky area. If the area is
risky, there exists only a big wall between the squatter houses and lucrative flats. However,
the application integrity follows the wall not a fault line or geographical route.
After the announcement had learnt by dwellers in squatter houses, they worried about
their future. After almost one year the project about the risky area is announced. The actors
were İstanbul Metropolitan Municipality and Yorum Building Enterprise. According to the
project, in the risky area 1652 social houses will be constructed. The sizes of these so-called
social houses are changes between 51-74 m2. However, according to the info that
Municipality of Sarıyer presents there exist nearly 2040 houses in squatter settlement. This
means that almost 400 house will be evicted for nothing. This part of story is unplanned (İnce,
Derbent'te Ayrımcı Dönüşüm, 2014). Also, sizes of houses that will be constructed in the
framework of project are not social as much as the word suggests. This is also another
consequence of loophole and ambiguity in law. The law and regulation did not foresee any
matchup between houses that will be demolished and will be constructed, in terms of sizes.
Another important point in the project is that additional 934 luxury houses will be constructed
for new buyers. Also sizes of luxury houses, exceeds the sizes of being social, changes in
between 137-291 m2. In the project social houses are replaced away from their old houses.
They lose the advantage of being near to the metro station. Also for the owners of workplaces
and tenants there exists nothing in the project.
However, the resistance movement welcomed the project. The prefabricate houses were built
up to reside those who will be evicted from squatter houses until the project is done. Since the
project merely excludes those residents, they showed resistance and claim for their rights.
They bring issue to the court and claim a stay of execution. Those problems are common in
the sense that these are results and reflections of ambiguity in implementation. However, there
is also direct intervention of property rights and construction of prefabricate houses before
reaching an agreement with dwellers is a corroborative example. This people will be evicted
and their estates, houses, ateliers, shops and rights as a tenure or de facto, will be evicted as in
cases of Tarlabaşı, Başıbüyük and Ayazma. A bureaucrat who works in The Ministry of
Environment and Urban Planning, when we interview looked the law laughed and said that
‘the law on Transformation and by this law we can almost demolish any building and restructure any
area’ (***, 2014). Areas Under Disaster Risk is a restatement of what they have been doing before the
law is passed’. However, it is more easy to applying law when the target in somehow attached with
informality, illiteracy or socio-economically disadvantage as it seems.
Evaluation
Again if we evaluate the overall process, the law is already legitimization of what
patterned, structured ways of behaviour of state agencies saw as a natural. Depriving people
from their rights, for the sake of saving them from being a disaster victim, may reflect, in the
first glance, letter and spirit of the law. However, when extra dynamic processes of public
policy came to the stage of implementation with its focus of application and ignorance, stands
as a weapon, and threat mechanism to force and evict dwellers, sometimes for nothing.
If we are to attach informality to this relationship between law-maker, implementer
and dwellers, the decision-makers side goes in hand by informality. It should be noted that
dwellers of squatter settlements may tend to reflect more informality; however, they pay their
wages, they get daily public services such as electricity, natural gas and water supply. Also,
they are not new-comers they have been established in the neighbourhood for decades. The
other side of relationship tries to go beyond the borders of formality with the ambiguousness
to implement. Who defines an action as formal or informal? The case shows that formality,
informality, action and ignorance are by their very nature intertwined and these are not stuck
with any single actor such as being a citizen or bureaucrat. In the same process, which
implements the project and deprives dwellers from their shelter, may announce as guilty who
opposes and claims only his/her rights.
The side of the law-makers may be done in letter with political worries. Theory and
practice cannot differentiate in any way as much as in this case. It is possible to induce the
third parties with that we are trying to serve those who have risky buildings and who
buildings in risky area. An in case of fail, it is possible to charge bureaucrats. Also, the work
that will be done is construction, sales of land, demolition. Who will get what? From the
dwellers side it is almost certain that they are on the side of losers. Problematizing as much as
can be dealt or creating problems that to serve hidden aims? Which one is good option, if the
state is to accumulate with primitive methods? The most practical one is leave the rule open-
ended and apply it where it is necessary. This allows to the agencies to stay on the floor of
legitimacy while depriving people from their rights.
References
***. (2014, 05 30). the Law on Transformation Areas and its application. (F. Santur, Intervieewer)
Avcı, A. (2013). 6306 Sayılı Afet Riski Altındaki Alanların Dönüştürülmesi Hakkında Kanun Açısından Mülkiyet Hakkının Sınırlandırılması. D. D. Yasin, & Y. D. Şahin (Dü) içinde, Kentsel Dönüşüm Hukuku (s. 187-204). İstanbul Üniversitesi S.S.ONAR İdare Hukuku ve İlimleri Araştırma ve Uygulama Merkezi Yayınları.
Bereket Baş, Z., & Demirkol, S. (2013). KENTSEL DÖNÜŞÜMÜN, 6306 SAYILI YASA KAPSAMINDA HAK VE ÖZGÜRLÜKLER AÇISINDAN ELE ALINMASI. Türkiye Barolar Birliği Dergisi (108), 23-70.
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İnşaat Mühendisleri Odası. (tarih yok). “Afet Riski Altındaki Alanların Dönüştürülmesi Hakkında Kanun Tasarısı" Üzerine İMO Görüşü. 05 24, 2014 tarihinde http://www.imo.org.tr/: http://www.imo.org.tr/resimler/dosya_ekler/6918af6da03b7a0_ek.pdf?dergi=260 adresinden alındı
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