Jerusalem Letter / Viewpoints
No. 498 13 Iyar 5763 / 15 May 2003
THE GLOBAL EPIDEMIC OF ILLEGAL BUILDING AND DEMOLITIONS: IMPLICATIONS
FOR JERUSALEM
Justus Reid Weiner
* In recent decades, municipalities and governments in all
parts of the world have struggled with illegal building. However,
compared with the incessant denunciation of rather infrequent
demolitions by the Jerusalem Municipality, there has been nearly a
complete lack of publicity when other governments demolish illegal
structures.
* Those who complain that many Arabs cannot afford housing in
Jerusalem ought to recognize economic reality; Jewish residents of
Jerusalem who also cannot afford the high cost of housing find it
necessary to move to the periphery of the city where housing is more
affordable.
* In New York, nobody would excuse or tolerate people building
illegally in Central Park, whatever their attachment to Manhattan or
however large their family.
* Even the Palestinian Authority has demolished houses
constructed illegally.
* Particularly refreshing was PA leader Sari Nusseibeh's
statement that the "gangs that build illegally on land that does not
belong to them should be thrown into jail," and that "Nobody in their
right mind is in favor of illegal building."
These examples occurred in countries situated on nearly every continent
and with widely varied political systems.30 To the best of this author's
knowledge, not a single human rights group, international body, or
foreign government has criticized demolitions in any of these locales.
The example of Lebanon is particularly noteworthy, given its prime
minister's 1997 speech calling for a united effort to prevent the
"Judaization" of Jerusalem, referring Israel's policies towards illegal
construction.31 Moreover, even UN peacekeeping forces in Pristina
carried out one such demolition in the capital of the Kosovo autonomous
area of Yugoslavia. Note that the United Nations has been the forum for
ferocious attacks on Israeli policies to combat illegal construction in
Jerusalem.32
U.S. Laws on Demolitions
Governmental demolition of buildings is common in other countries such
as the United States. For example, in slum clearance,33 growth
management,34 zoning,35 urban renewal, or in cases of housing code
enforcement,36 public agencies may even demolish privately owned
buildings without paying compensation to the owners or alternatively
order the owner to demolish the structure.37 The courts have upheld the
constitutionality of statutes permitting building demolition.38 These
statutes are so common that national code-drafting agencies, such as the
Building Officials Conference of America39 and the American Public
Health Association-U.S. Public Health Service, have drafted model
demolition ordinances.40 The International Conference of Building
Officials has also promulgated a provision of its Uniform Building Code
that permits demolition when any of 17 conditions are found.41 There is
even a Uniform Code for the Abatement of Dangerous Buildings, which
specifically addresses the circumstances in which buildings can be
destroyed.42
The general rule in the United States is that while the government may
regulate the use of privately-owned real property to a certain extent,
if the regulation goes too far it will be recognized as a "taking." This
relates to the U.S. Constitution's Fifth Amendment ("No person shall
be...deprived of life, liberty, or property, without due process of
law"), which specifies that private property cannot be taken or impaired
without due process, meaning a prior court order.43 In the United
States, land use regulations or decisions to use the eminent domain
(condemnation) power must be supported by a valid public purpose.44 This
power is typically used to obtain land for various public facilities -
roads, schools, parks, monuments, and public amenities, among others.45
Pursuant to the Fifth Amendment to the U.S. Constitution, condemnees
receive compensation based on the value of the asset in the market, not
including money for relocation costs, business losses, or psychological
disruption.46 Courts seldom nullify such a taking, provided the
landowner is compensated.47
The various arenas of government have come to dominate land use control,
particularly in urban and suburban areas.48 Measures that severely limit
an owner's use of land but fall short of a taking are numerous indeed.
In the words of Professor Richard H. Chused, author of a leading
casebook on property law:
The scope of land use regulation by federal, state, and local
governments is enormous. The federal government actually owns one-third
of the land in the mainland United States, mostly in the western half of
the country. In addition, Congress has adopted legislation on water
pollution, flood controls, interstate land sales, real estate
settlements, race and gender discrimination, mining, grazing, and
timbering on federal lands, national parks, wildlife zones, Native
American lands, and a host of other problems. State and local
governments have passed an even longer list of land use measures,
including zoning statutes, building codes, environmental regulations,
consumer protection statutes, anti-discrimination laws, and historic
preservation programs.49
In Europe and North America, urban planning originated in the early part
of the twentieth century as a response to widespread dissatisfaction
with the physical squalor and political corruption of emerging
industrial cities.50 Since then, local authorities have typically
furnish ed fire and police protection, educational facilities, parks,
public transportation, a network of roads, water, and sewage
facilities.51 They have also considered aesthetics, social justice,
employment opportunities, healthcare needs, entertainment preferences,
economic growth, phased housing growth, conservation of energy
resources, protection of the natural environment,52 and preservation of
historical sites.53 Indeed, they are responsible for the overall quality
of life.54
Those who complain that many Arabs cannot afford housing in Jerusalem
ought to recognize the economic facts of life. Whether one likes them is
irrelevant, as they are considered axiomatic everywhere but in the Arab
sector of Jerusalem. Jewish residents of Jerusalem who also cannot
afford the high cost of housing, including many large families, find it
necessary to move to the periphery where housing is more affordable.
Thus, in recent years, tens of thousands of Jews have been "driven" from
Jerusalem to its suburbs, including Mevesaret Zion and Ma'aleh Adumim.
Even the ultra-Orthodox, despite their deep religious attachment to the
city, have left Jerusalem in droves for communities like Beitar and
Ramat Beit Shemesh because they cannot afford to house their large
families in Jerusalem. Indeed, the pattern repeats itself in urban areas
worldwide. In New York, people move from Manhattan to Queens, northern
New Jersey, or Staten Island. Whatever their attachment to Manhattan,
however large their family, nobody would excuse or tolerate their
building illegally in Central Park.
Demolitions by the Palestinian Authority
Another thought-provoking instance of demolition occurred in Gaza, under
the rule of the same Palestinian Authority that attempts to turn every
instance of demolition in the Arab areas of Jerusalem into an
international incident. According to one report in the Washington Post,
Palestinian Authority bulldozers "flattened" Fatima Abu Suayed's house,
with all her possessions inside, because it was allegedly constructed
"illegally" on "Palestinian state property." According to the account,
"a bulldozer plowed down more than 20 homes."55 No mention was made of
any legal process or safeguards. Mayor Aown Shawa explained, "In the
recent period there is an increase in the number of illegal structures
that damage the urban planning of the city."56 Other than one small
organization based in Gaza,57 none of the NGOs that regularly attack the
Jerusalem Municipality and the State of Israel uttered a word of protest.
Some Arab leaders recognize that, whatever its political utility,
illegal construction has deleterious effects on the daily life of the
residents, especially in the Arab neighborhoods. For example, Azam Abu
Saud, the Director General of the Office of Arab Commerce in Jerusalem,
spoke to this issue in the newspaper Al Quds. Abu Saud reasoned that
ignoring the planning law encourages violence and injures the rights of
others. At the risk of deviating publicly from the Palestinian
Authority's position,58 he recommended pulling down illegal structures.59
Conclusions
Modern cities have a right, indeed a need, to plan. They must do this to
make delivery of public services manageable and affordable, to protect
the environment, and in some parts of the world, including Jerusalem, to
preserve their historical, architectural, and archeological heritage.
While poverty and culture undeniably play a role in illegal
construction, its primary cause is the lucrative nature of illegal
building for profit. This fact not only explains the general cause of
the epidemic, but more specifically also serves as an important factor
in the illegal building taking place in Jerusalem's Arab neighborhoods.
Particularly refreshing in this regard was the forthright statement of
Palestinian Authority Official Professor Sari Nusseibeh that the "gangs
that build illegally on land that does not belong to them should be
thrown into jail."60 He added, "Nobody in their right mind is in favor
of illegal building."
The public, which has little experience with international law, lacks
the tools to filter out the plethora of bogus "international law"
standards that NGOs have contrived to facilitate their attacks on the
Jerusalem Municipality and the State of Israel. NGOs, often
appropriating the propitious title of "human rights organizations,"
reiterate their condemnations of Israeli policy ad nauseam. Their
accusations are couched in the terminology of human rights law,
humanitarian law, and international law, and fail to inform the public
that the law they reference is soft (less than authoritative),
ambiguous, and/or actually supports the municipality's planning
enforcement actions. Moreover, the NGOs that so quickly condemn Israel
for "human rights violations" have not criticized the other governments
mentioned for the demolition of illegal buildings in those countries.
In summation, illegal building severely mortgages the future of urban
life worldwide. People who love their cities, regardless of their
political views, ethnicity, or nationality, should unite to turn the
tide against those who undermine their city's quality of life with
illegal building. They should show zero tolerance for this dysfunctional
scourge, wherever it manifests itself.
* * *
Notes
* This Jerusalem Viewpoints is revised and adapted from the author's
book Illegal Construction in Jerusalem: A Variation on an Alarming
Global Phenomenon. The book was published in 2003 by the Jerusalem
Center for Public Affairs and may be purchased via its website
http://www.jcpa.org. The author expresses his indebtedness to Naomi
Slotki for her creative input, including research and editing, and to
Mike Dacks, David Hessing, David Dabscheck, Erica Hirsch, and Andrew
Joseph for their tireless contributions to this study.
1. Interview with Z. Uri Ullmann, Director of Division for Strategic
Planning and Research of Jerusalem Municipality, in Jerusalem (Nov. 25,
2001).
2. Udall v. Haas, 21 N.Y.2d 463, 235 N.E.2d 897, 900, 288 N.Y. 888, 893
(1968).
3. Richard G. Heerdegen, Land Use and Planning: Readings in Regional
Development 68 (1967).
4. See Claude Levi-Strauss, "Crowds," 15 New Left Review 3-6 (1962).
5. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 7 (1989).
6. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 12 (1989).
7. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 15 (1989).
8. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 15 (1989).
9. Jorge E. Hardoy & David Satterhwaite, Squatter Citizen 26 (1989).
10. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 98 (1989).
11. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 98 (1989).
12. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 86 (1989).
13. Hernando De Soto, The Other Path: The Invisible Revolution in the
Third World (2002).
14. Jorge E. Hardoy & David Satterthwaite, Squatter Citizen 100 (1989).
15. Interview with Uri Bar Shishat, Director of Policy Planning
Department of City Engineer of Jerusalem Municipality, in Jerusalem
(Nov. 25, 2001).
16. Interview with Shalom Goldstein, Advisor to Mayor of Jerusalem
Municipality for East Jerusalem Affairs, in Jerusalem (Dec. 6, 2001).
17. Graphic Information Systems, A Summary of All Activities that Take
Place in the Building Inspection Department, Furnished by Menachem
Helman, GIS Director (Feb. 17, 2002) (Hebrew).
18. Letter from Ehud Olmert, Mayor of Jerusalem Municipality to Shimon
Peres, Foreign Minister of Israel (Apr. 23, 2001).
19. Interview with Micha Bin-Nun, Director of Licensing and Inspection
Department of Jerusalem Municipality, in Jerusalem (Dec. 31, 2001). The
estimate of 500,000 NIS was given for the Kawasme case, which was
appealed four times all the way to the Supreme Court of Israel. Each
time, heavy equipment and scores of security personnel were sent out to
demolish the illegal structure.
20. Palestinian Central Bureau of Statistics, Demolished Houses by
Selected Indicators, 1997-1999.
21. Will Rogers, "Illegal Home Addition Will Be Torn Down," St.
Petersburg Times, Nov. 22, 1991, p. 1.
22. William E. Farrell, "Lebanese Army Bulldozes 'Illegal' Homes," NY
Times, Oct. 9, 1982, p. 6.
23. Patricia Young, Joseph Lo & Mariana Wan, "Peak-hour Delayed by
Protesting Squatters," South China Morning Post, Dec. 15, 1994, p. 3.
24. Poona Antaseeda, "Department Store Closures: Illegal Buildings
Remain Open," Bangkok Post, July 3, 1999.
25. "Final Nod to Regularize Illegal Buildings,"
www.ahmedabad.com/news/2k/nov/23building.htm.
26. Rotimi Ajayi, "Obasanjo Orders Demolition of All Illegal
Structures," Vanguard (Lagos, Nigeria), July 16, 2001.
27. "Nigeria Protests Against Demolition," The News (Lagos, Nigeria),
Oct. 19, 2000.
28. Douglas Jehl, "Qurna Journal: After 4,000 Years, It's Time for Urban
Renewal," NY Times, Mar. 4, 1997, p. A4.
29. Elizabeth Riley, "A Portrait of 'Illegality': the Favela of
Pavao-Pavaozinho and the Perceptions of its Residents,"
http://www.brookes.ac.uk/schools/planning/dates/naerus/workshop2001/papers/riley.rtf
(Feb. 23, 2003); see Julio Cesar Pino, "Family and Favela: The
Reproduction of Poverty in Rio de Janeiro," 37-38, 52-53 (1997).
30. The specific locales are identified at the beginning of each paragraph.
31. Radio Lebanon, "Lebanese PM Urges Halt to Normalization with
Israel," BBC Summary of World Broadcasts, Part 3 Asia-Pacific, Pakistan,
Organization of the Islamic Conference Summit in Islamabad, speeches,
FE/D2876/S3, Mar. 25, 1997.
32. See Ministry of Foreign Affairs, Israel's Response to the Report
Submitted Pursuant to United Nations General Assembly Resolution ES-10/2
(Document A/ES/-10/6; S/1997/494), para. 18 (1998).
33. For a good general discussion of slum clearance as police powers,
see George Lefco, "Finding the Blight that's Right for California
Redevelopment Law," 52 Hastings Law Journal 991, 992-994 (2001)
("Because government programs to achieve health and safety goals clearly
qualified as a public use, condemnation incidental to such programs
would pass constitutional muster....By tying the legitimacy of
redevelopment to slum clearance or blight removal, courts extended only
slightly the powers local governments had long possessed to demolish.").
See also, Daniel R. Mandelker, "Housing Codes, Building Demolition, and
Just Compensation: A Rationale for the Exercise of Public Powers over
Slum Housing," 67 Michigan Law Review 635, 639-46 (1969). Among the
categories of structures that, by state statute, are subject to
demolition are those that have fire hazards, those, which are unsafe
(dangerous to health or life), and those, which are dilapidated, unfit
or obsolete.
34. E.g., Pinecrest Lakes v. Shidel, Fla. App. LEXIS 13464, 795 So.2d
191 (2001). In this recent case the appeals court ordered the demolition
of 40 newly constructed upscale apartments, worth in excess of $3
million (U.S.), that were deemed to be in violation of the county's
comprehensive land use plan due to their proximity to single-family
homes. Ibid., p. 207. For further explanation regarding how growth
management and land use plans coexist with the Takings Clause, see
Philip A. Tierney, "Bold Promises But Baby Steps: Maryland's Growth
Policy to the Year 2020," 23 University of Baltimore Law Review 461,
506-508.
35. E.g., Natale v. Schwartz, 151 F.Supp 2d 562, 2001 U.S. Dist. LEXIS
7011 (E.D. Pa. 2001); e.g., Welton v. East Oak Street Building Corp., 70
F.2d 377 (7th Cir. 1934).
36. Daniel R. Mandelker, "Housing Codes, Building Demolition, and Just
Compensation: A Rationale for the Exercise of Public Powers over Slum
Housing," 67 Michigan Law Review 635-36, 638 (1969). See also Berrios v.
Lancaster, 798 F.Supp 1153, 1992 U.S. Dist. LEXIS 10370 (E.D. Pa.1992)
(holding, in partial reliance on Penn. Central Transpiration Co. v New
York City, 438 U.S. 104 (1978), that the demolition of a home found in
violation of housing codes is not a regulatory taking because no one has
a reasonable expectation of occupancy in a place unfit for human
habitation).
37. E.g., Pinecrest Lakes v. Shidel, Fla. App. LEXIS 13464, 795 So.2d
191 (2001); Daniel R. Mandelker, "Housing Codes, Building Demolition,
and Just Compensation: A Rationale for the Exercise of Public Powers
over Slum Housing," 67 Michigan Law Review 635-36 (1969).
38. E.g., Polsgrove v. Moss, 154 Ky. 408, 157 S.W. 1133 (1913); City of
Louisville v Thompson, 339 S.W. 869 (1960); Swett v. Sprague, 55 Me. 190
(1867); Harris v. City of Akron, 1997 Ohio App. LEXIS 3160 at 8 (Ohio
Ct. App., Summit County, July 23, 1997) ("The City acts within its
police power, not its power of eminent domain, when it inspects and
condemns an unsafe building to safeguard the public"); Maxedon v.
Rendigs, 9 Ohio App. 60 (1917); City of Saginaw v. Budd, 3 Mich. App.
681, 143 N.W.2d 608 (1966), rev'd on other grounds, 381 Mich. 173, 160
N.W.2d 906 (1968).
39. International Conference of Building Officials, Uniform Building
Code, Vol. IV, Dangerous Buildings (1967); see International Conference
of Building Officials, Uniform Building Code, Part I, Ch. 2, Sec. 203,
Unsafe Buildings and Structures (1991).
40. American Public Health Association-[U.S.] Public Health Service,
Recommended Housing Maintenance and Occupancy Ordinance, sec. 16.02.01
(Review ed., 1967).
41. International Conference of Building Officials, Uniform Building
Code, Vol. IV, Dangerous Buildings (1967).
42. International Conference of Building Officials, Code for the
Abatement of Dangerous Buildings (1997).
43. Richard H. Chused, Cases Materials and Problems in Property (2d ed.)
937 (1999). Implementation of this rule has proven to be very difficult
indeed. International Conference of Building Officials, Uniform Building
Code, Vol. IV, Dangerous Buildings (1967); see International Conference
of Building Officials, Uniform Building Code, Part I, Ch. 2, Sec. 203,
Unsafe Buildings and Structures (1991). See also, Frank I. Michelman,
"Property, Utility and Fairness: Comments on the Ethical Foundations of
'Just Compensation' Law," 80 Harvard Law Review 1165 (1967).
44. See, e.g., City of Monterey v. Del Montes Dunes, 526 U.S. 687, 704
(1999) ("Although this Court has...[not] provided...a thorough
explanation of the nature or applicability of the requirement that
regulation substantially advance legitimate public interest outside the
context of required dedications or exactions,...we note that the trial
court's instructions are consistent with our pervious general
discussions of regulatory takings liability."); Hawaii Housing Authority
v. Midkiff, 467 U.S. 229 (1984); Richard H. Chused, Cases Materials and
Problems in Property (2d ed.) 899 (1999). The blight of vacant buildings
in a slum can be condemned under eminent domain. Note, "Hanging Out the
No Vacancy Sign: Eliminating the Blight of Vacant Buildings from Urban
Areas," 74 N.Y.U. Law Review 1139 (1999).
45. Richard H. Chused, Cases Materials and Problems in Property (2d ed.)
909 (1999).
46. Richard H. Chused, Cases Materials and Problems in Property (2d ed.)
909, 937 (1999).
47. See Berman v. Parker, 348 U.S. 26, 32-33 (1954); see Amen v. City of
Dearborn, 718 F. 2d 789 (6th Cir. 1983).
48. See Richard H. Chused, Cases Materials and Problems in Property (2d
ed.) 94-111 (1999). In the United States land use control is regulated
by state enabling acts. These acts express goals in general terms and
authorize the local authorities to make specific rules (ordinances) and
to administer such rules. The enabling acts allow two agencies to be
created to deal with these matters: a planning commission to draft a
master plan and detailed ordinances and a board of adjustment to deal
with appeals from the decisions by the local administrator or officials.
The Model Land Development Code, approved by the American Law Institute,
a group of scholars, lawyers and judges, is one example of such a legal
structure. Richard H. Chused, Cases Materials and Problems in Property
(2d ed.) 96 (1999). The first efforts to impose order in this area arose
out of the Standard State Zoning Enabling Act of 1926 (U.S. Dept. of
Commerce Review, ed., 1926) and the Standard City Planning Enabling Act
of 1928 (U.S. Dept. of Commerce 1928). In recent decades a leading
source has been the Model Code prepared by the American Law Institute.
American Law Institute, Model Land Development Code (1975). Planning,
however, is not universally appreciated. E.g., Andrew P. Morriss and
Roger E. Meiners, "The Destructive Role of Land Use Planning," 14 Tulane
Environmental Law Journal 95 (Winter 2000); also see, e.g., Richard E.
Klosterman, "Arguments for and Against Planning," Readings in Planning
Theory (Scott Campbell and Susan S. Fainstein 1996), pp. 150-69; A. Dahl
& C. E. Lindbloom, Politics, Economics and Welfare (1953); Ruth Glass,
"The Evaluation of Planning: Some Sociological Considerations," in A
Reader in Planning Theory (Andreas Faludi, ed., 1973), pp. 45-68.
49. Richard H. Chused, Cases Materials and Problems in Property (2d ed.)
899 (1999).
50. Richard E. Klosterman, "Arguments for and Against Planning,"
Readings in Planning Theory (Scott Campbell and Susan S. Fainstein,
eds., 1996), pp. 150, 159.
51. See Richard H. Chused, Cases Materials and Problems in Property (2d
ed.) 98 (1999). Sewage and water crises have led to moratoria on
construction in some areas in the United States. See, e.g., Tahoe-Sierra
Preservation Council v. Tahoe Reg'l Planning Council, 535 U.S. 303
(2002) (finding a moratoria based on concern that building will
adversely effect water level and quality in a lake not to be a taking
requiring just compensation); Charles v. Diamond, 41 N.Y.2d 318, 392
N.Y.S.2d 594, 360 N.E.2d 1295 (1977). See Richard H. Chused, Cases
Materials and Problems in Property (2d ed.) 98 (1999).
52. See, generally, Jorge Enrique Hardoy, Diana Mitlin & David
Satterthwaite, Environmental Problems in an Urbanizing World: Finding
Solutions in Africa, Asia and Latin America (2001).
53. Richard H. Chused, Cases Materials and Problems in Property (2d ed.)
94 (1999).
54. Richard H. Chused, Cases Materials and Problems in Property (2d ed.)
94 (1999).
55. Barton Gellman, "Palestinians Vent Their Ire Over Arafat: Gaza's
Jubilation on Achieving Self-Rule Turns to Frustration, Anger,"
Washington Post, Feb. 27, 1995, p. A1.
56. Al Quds, June 9, 2001.
57. The Palestinian Center for Human Rights is, to the best of this
author's knowledge, the only one of these numerous rights groups that
protested the Palestinian Authority's demolition of several homes in
Gaza City. Palestine Center for Human Rights Internet Website, "In
Breach of a Ruling by the Palestinian High Court of Justice, the Gaza
Municipality has Demolished Several Homes in Gaza City";
http://www.pchrgaza.org/files/PressR/English/1997/munic-h.htm.
58. Apparently to protect himself, Abu Saud directed his criticism at
illegal building in Area B, where there is joint Israeli-Palestinian
authority. However, the real problem of illegal construction, as Abu
Saud well knows, is in the Arab neighborhoods of Jerusalem. He also
knows well which political forces and whose money supports those who
build illegally.
59. Azam Abu Saud, Al-Quds, May 13, 2001.
60. Interview with Dr. Sari Nusseibeh, President of Al Quds University
and Palestinian Authority Political Commissioner for Jerusalem Affairs,
in Jerusalem (Jan. 30, 2002).
* * *
Justus Reid Weiner is an international human rights lawyer and a member
of the Israel and New York Bar Associations. He is a
Scholar-in-Residence at the Jerusalem Center for Public Affairs and an
adjunct lecturer at Hebrew and Tel Aviv Universities.
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