City of Jerusalem

City of Jerusalem Building Licensing Division

Date: 11 April 2010

For Adv. Rafi Ettinger 31 Hillel Street 94581 Jerusalem

Link to File: Opponent

Dear Sir or Madam,

Re: Decision of the Planning and Building Sub-Committee Regarding Application for Permit No. 2009/0143.00 Address: 4 Emil Zola Street, Jerusalem Applicant: Ridge Hill Ltd.

On 15 March 2010, the Planning and Building Sub-Committee discussed the aforesaid application and resolved to reject the application.

After review of the written objections presented thereto and previous decisions made on the matter of the application, as well as after hearing the Parties, the Committee resolves as follows:

A. After the Committee heard, an additional time, the arguments of the Parties, as well as examined the written objections presented thereto on the matter, and after the Committee weighed the matter, the Committee holds that the application for irregular usage as submitted should not be approved.

B. The Committee considered if under the circumstances of the matter, which involve a street adjacent to the Emek Refaim Street (a commercial street), and under the circumstances involving stores (though of different character) that had been approved in the internal streets, such as a flower shop and a toy store, there was room to approve the application for irregular usage for purposes of a restaurant.

C. In this context, the Opponents’ arguments regarding the adverse effect on the character and residents of the neighborhood in general and the tenants of the adjacent building in particular were taken into consideration, as well as the legal "problems" stemming from rejection of the application, as specified below.

D. Beyond the argument regarding adverse effect upon the adjacent buildings and the character of the neighborhood, the Opponents raised additional arguments, the first of which was that approval of the application constituted deviation from Plan 2154, since Section 12 of the Plan defines "commercial façade" only in the narrow strip marked in purple bordering Emek Refaim Street only, and even so "according to the state existing at the time of deposit of this Plan." The last portion of Section 12 emphasizes that "no additional commercial use will be permitted," that is, the Plan prohibits a permit for additional commercial usage.

E. The Committee was aware that the irregular usage was a planning instrument provided to planning institutions in general, and the local committee in particular, as provided for by Article 146 of the Planning and Building Law and as set forth by the Supreme Court in CA 6291/95 Ben Yakar Gat Engineering and Construction Company Ltd. v. Modiin Special Zoning and Construction Committee.

F. However, the Committee holds that there is a reason that the Courts ruled that the instrument of "irregular usage" was a planning instrument that ought not to be provided ordinarily (HC 389/87 Salomon v. District Committee).

G. Thus, and in light of the existing Court rulings, which indicate that no absolute answer can be found for the question of when the planning instrument of "irregular usage" may be permitted or prohibited, the Committee examined several parameters that must be considered when discussing an application for irregular use (see: Appeal (Jerusalem) 269/07 Rivka Weiss v. Jerusalem Planning and Building Sub-Committee), and hence we shall survey these parameters, as follows:

H. As to intensity of the irregular usage, the Committee holds that permitting irregular usage from a residential building for commercial purposes for a restaurant constitutes irregular usage of high intensity in the case that is the subject of the application, inter alia according to the impression of the Committee and upon hearing objections and the visit performed on site.

I. The Applicants raise arguments regarding the fact that approval of the application pertains to an existing business in which many funds were invested. In this context, it shall be noted that such an argument may not "coerce" planning committees to approve the application. See, in this context, Administrative Appeal (Tel Aviv – Jaffa) 1544/04 – Yesodot Yaniv Ltd. v. District Planning and Building Committee-Center, Tak-District 2006(3), 9277. "Coerced approval of plans that derives from a reality set on-site through violation of the planning laws cannot form a basis for a proper planning system. This is the exact opposite of planning. This is planning anarchy."

J. Regarding the scope of irregular usage, while a scope of only about 190 square meters is involved, such a scope does not indicate the adverse effect upon the vicinity, since upon hearing the Opponents and the site visit, there is an indication that a slightly irregular usage, as in this case, may cause severe damage to third parties.

K. The site visit performed by the Committee and the reading and hearing of the objections also indicate that the Opponents purchased their homes while there were residential buildings at the place that is the subject of the application, and thus it is reasonable and even logical that the Opponents assumed they would continue residing next to residential buildings and not a commercial area intended for a 190 sq.m. restaurant, with the attendant noise and odor nuisances involved.

L. As to the transformability principle, the Committee holds that there is no doubt that life experience teaches that the approval of such an application to permit the establishment of a restaurant on streets "shooting off" from Emek Refaim Street would "cause" the existing environment to continue in such a manner, and such a structure could not easily be transformed back into a residence.

M. Review of the parties' arguments indicates that the problem involved is an essential problem at Emil Zola Street and similar streets, and thus the Committee holds that the more proper and appropriate procedure for handling the matter for the long term is to promote a plan and not to approve an application for irregular usage from residence to restaurant.

N. The Committee even holds that in light of the neighborhood's character and the multitude of businesses that border Emil Zola Street, there is no proven critical and urgent need for a restaurant on the desirable street that warrants an expedient exercise of irregular usage.

O. It goes without saying that in this regard that the Opponents to the application were not only residents of the building bordering the asset that is the subject of the application, but also representatives of the neighborhood and additional Opponents. That is, the application has implications vis-à-vis the entire surroundings.

P. In light of the aforesaid, the Committee holds that the application for approval of irregular usage, as submitted in its current format, should be rejected.

Q. For the sake of order, it shall be noted that the Committee's decision does not prevent the Applicants and/or any person on their behalf to submit another application for another commercial usage and not a restaurant, and the same will be examined when and if submitted.

The aforesaid decision is valid for one year only. According to Article 152 of the Planning and Building Law, the Applicant is entitled to appeal this decision within 30 days from receiving this decision, before the Appeal Committee. If there was a publication proceeding, all parties are entitled to apply to the Appeal Committee. Below are details of the Appeal Committee: Technological Park – Manha Jerusalem, Building 1, Entrance A. Telephone: 02- 6782801, Fax: 02-6783074. Address for correspondence: District Appeal Planning and Building Committee, Technological Park – Manha, Jerusalem 96951.

For further handling, please schedule a meeting with the Irregular Usage Coordinator at the Business Promotion Division, telephone: 6296848.

Sincerely, [Signature] Kobi Kahlon – Chairman, Local Planning and Building Committee