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."
Urban development, in the modern sense, requires painstaking urban planning.1 One American judge described the planning process as bringing to bear "the insights and the learning of the philosopher, the city planner, the economist, the sociologist, the public health expert and other professions concerned with urban problems."2 Urban planning is not something unique to Jerusalem or Israel, but a burgeoning, worldwide trend. Likewise, the use of demolition as a tool to enforce the planning code is a routine enforcement measure widely used in the United States and elsewhere around the globe.
If urban planning is to have any chance of successful implementation, it must be accompanied by efforts to educate the public as to its importance. If people understand the reasons for urban planning, they will be far less likely to violate legal construction standards and will likewise make their objections known when their neighbors build illegally. Even where efforts are undertaken to publicly explain the desirability of planning, some individuals will inevitably disregard the law for pecuniary or other benefits. In order to protect the interests of the public at large, and indeed the very future of the city, authorities must respond to such challenges, by fining offenders, demanding the removal of illegal structures, and, if nothing else can preserve the integrity of the planning scheme, demolishing illegal construction.
Here we will consider the implications of urban planning enforcement efforts in Jerusalem in light of the wider picture in the United States and in other cities around the world.
The Global Threat Posed by Illegal Building
Urban areas in developing countries are collapsing due to population explosion, which results in anarchy as public services are unable to keep pace with the demands put upon them.3 As a consequence, the cities of the developing world are becoming wastelands.4
Due to rapid and uncontrolled growth, millions of these cities' inhabitants live in slums.5 It is now common for 30 to 60 percent of an entire city's population to live in houses and neighborhoods that have been developed illegally.6 It is very rare for governments to furnish infrastructure and services essential for health and well-being - piped water, sewers, storm drainage, all-weather roads, public transit, electricity, health care - to those who build illegally.7 When the authorities lack the political and organizational will to dismantle illegal neighborhoods, they tolerate them and simply bulldoze others.8
Housing in squatter settlements is illegal in two senses. First, land is occupied illegally and the site is developed without regard for zoning and subdivision regulations (i.e., concerning the permitted use of the land, permitted density, water supply, drainage, and access roads).9 Second, many individuals and businesses profit from the development of illegal communities or the needs of their inhabitants.10 Landowners, land developers, and businesses make money from buying and selling land illegally11 and, in some cases, extensive and highly profitable landlordism has developed.12
A tolerant but passive reaction by the government has serious disadvantages. These include:
absence of public services normally associated with housing, like water and sanitation;
the inhabitants' ineligibility for loans to buy, build, or improve their illegal structure or to expand their business situated in it, since the structure is not accepted as collateral;13 and
the scattering of illegal structures all over, making it very expensive to extend water, sewers, roads, and public transit.14
Examples of Demolitions Worldwide: Western and Developing Countries
During the past decade, illegal building in Jerusalem's Arab neighborhoods has erupted into an urban planning problem of enormous proportions. The illegal construction often takes the form of complete buildings, constructed on land that is not owned by the builder, such as that which is designated for public services (social services, community centers, schools, public parks, religious buildings, etc.15), as well as streets and highways.16 Often the illegal structures are designed without the input of a licensed architect or engineer. Such buildings likely fail to meet standard safety codes, thereby presenting a danger to inhabitants, visitors, and neighbors.
During the period 1996-2001, Jerusalem municipal inspectors reported nearly 4,000 building violations in Arab neighborhoods.17 Experts who study aerial photographs believe this number represents only 30 percent of the phenomenon.18 Despite the staggering number of violations, the Jerusalem Municipality has been extremely reluctant to demolish illegal structures in Arab neighborhoods. Only when no other options exist, the city issues a demolition order that requires no fewer than five signatures, from the local inspector up to and including the mayor. A demolition costs the city an average of 50,000 to 60,000 New Israeli Shekels (approximately $10,000 to $12,000 U.S.) each.19 Because of this, the number of demolished structures in Arab areas, even according to figures published by the Palestinian Authority's Central Bureau of Statistics (excluding what they refer to as "tents and barracks") for the years 1997, 1998, and 1999 was only 28, 31, and 36 respectively.20 Nonetheless, one who follows the sensational NGO and media reports, decrying Jerusalem's supposedly flagrant demolition policy, would be led to believe that the scope of demolitions in Jerusalem is of an entirely different magnitude.
In recent decades, municipalities and governments in all parts of the world have struggled with illegal building not unlike that in Jerusalem. Many use demolition and some, out of frustration with the endemic nature of the problem, promulgate ordinances to "regularize" existing unlawful development. In contrast to the incessant denunciation of rather infrequent demolitions by the Jerusalem Municipality, there is nearly a complete lack of publicity when other governments demolish illegal structures.
It is instructive to consider the following instances of illegal building occurring in many countries:
U.S.A.: A city had to pay a company thousands of dollars to tear down and haul away an illegally built second-story addition to a residence. The decision to demolish the illegal addition came at the end of a legal battle lasting more than two years, during which the homeowner ignored three court orders to stop building. In one of the court hearings, the judge ordered the homeowner to take the addition down within 30 days or serve 60 days in jail. He elected to go to jail.21
Lebanon: The army used troops and bulldozers to demolish what were described as illegally built houses and shops in a shantytown on the southern outskirts of the capital city. Soldiers fired their rifles into the air to keep excited residents away from the demolition work. The demolished buildings belonged to Muslim war refugees, who were accused by an official of putting up their structures on land belonging to the government and private citizens. Officials indicated that 35 buildings were demolished in one day, but some indications suggest that the actual number could be much higher. An official claimed that he had warned those living in the shantytown that demolition was imminent. One woman screamed, "My house has gone."22
China: The government's planning department announced a policy to clear all illegal squatters from hillsides and rooftops, claiming that it had given as much notice as possible of its plans. Demonstrators blocked rush-hour traffic for an hour in protest of the government's decision to demolish their illegal homes. A woman protester said, "The government has done nothing to help us. Where will we live when they demolish our home?" Twenty-two protesters, men and women, were dragged, kicking and screaming to police vans. As the vans drove away, the protestors could be heard banging on the doors, bellowing, "the police beat us, the police beat us." Families living in the flats claim that they have no place to go. One also claimed that he was a bona fide purchaser of his residence and that he regularly paid his property tax and utilities bills.23
Thailand: City officials gave additional time to two department stores to demolish floors they had added illegally on top of their buildings. The stores were originally given permits to build four floors but subsequently added seven more floors despite official warnings. The Municipality brought lawsuits against them, but it took about a decade before the Supreme Court delivered its verdicts against the illegal additions. The stores were subsequently able to exploit illegal loopholes to avoid complying with the Supreme Court's decision for an additional five and eight years respectively.24
India: The government promulgated an ordinance for legitimizing illegal construction where a fee is paid. Notices previously issued to pull down illegal buildings were suspended. The new ordinance is not applicable, however, where the land belongs to the government, local authority, or a statutory body, or if the government allocates the land for a specific purpose. It is also not applicable to land planned for building roads, watercourses, water bodies, natural drainage, or hazardous industrial development. An official announced that new rules of responsibility and accountability for illegal construction would be drafted and that every effort would be made to ensure that there would be no illegal construction in the future. The proposed rules would insure that the builder, promoter, and the architect would not be given water, drainage, and electricity connections until they conform to legal norms and procure the building use certificate. The official further stated that if, despite precautions, new illegal constructions crop up, they will be destroyed.25
UN forces in the autonomous province of Kosovo, Yugoslavia: The United Nations mission in Kosovo took on the illegal construction barons, seizing a building for demolition after a local official who tried to tighten building regulations was killed. One baron had continued building a five-story block on public land, despite having received a demolition order. At least 2,500 unauthorized buildings shot up in Pristina in the 15 months since the end of the bombing in Yugoslavia. According to a UN official, local organized crime rings are behind the building boom.
Nigeria: The President ordered the demolition of all illegal structures in the Federal Capital Territory - to wit, those erected on sewage lines, green areas, and security zones. The illegal structures were blamed for "severely distort[ing] the master plan" for the city and constituting "serious safety and security hazards."26 As a consequence of the demolition, thousands became homeless.27
Egypt: Nearly all of the 8,000 residents of a town were forcibly relocated, and all but 50 of their 1,500 homes demolished, in the government's efforts to attract tourists and open new sites to archaeologists.28
Brazil: From its origins 70 or more years ago, an enormous urban slum known as a favela has created a variety of problems. "According to the city's 10-year Master Plan, ratified in 1992, a favela is an area predominantly of housing, characterized by the occupation of land by low-income populations, precarious infrastructure and public services, narrow and irregular layout of access ways, irregular shaped and sized plots and unregistered constructions, breaking with legal standards. Its residents are not legally entitled to reside...[there] as ownership of the land is registered to the state government. The houses in which they live, built through their own labor or with the assistance of paid unskilled labor, violate building codes that dictate housing standards. The...[favela's layout], with no roads, narrow pathways, staircases of uneven tread and width, also break with the established legal norms. Property purchase and rental markets within the settlement are vigorous, yet such exchanges of land and housing have no legally recognized validity. Small commercial establishments are numerous, yet none are registered and none pay tax on the goods and services they sell. The settlement is 'protected' by a gang of drugs and arms dealers, who pedal their illegal wares and engage in sporadic gunfire with rival gangs and the police." The thousands of residents live in fear that their houses will be demolished (as has happened in other favelas) and that they will be removed to housing on the edge of Rio.29
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
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.
* * *
* 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.
are published by the Jerusalem Center for Public Affairs, 13 Tel-Hai St.,
Jerusalem, Israel; Tel. 972-2-5619281, Fax. 972-2-5619112, Internet:
firstname.lastname@example.org. In U.S.A.: Center for Jewish Community Studies, 1515
Locust St., Suite 703, Philadelphia, PA 19102; Tel. (215) 772-0564, Fax. (215)
772-0566. © Copyright. All rights reserved. ISSN: 0792-7304.
The opinions expressed by the authors of Viewpoints do not necessarily reflect
those of the Jerusalem Center for Public Affairs.