Zoning Plans, Amendments And Legal Actions For Cancellation Of Zoning Plans
Please find below the article of our firm titled "Zoning Plans, Amendments and Legal Actions for Cancellation of Zoning Plans" regarding the zoning plans, which have an important standing in the real estate sector both from standpoints of construction and development.
1. Zoning Plans in General
Two of the main problems brought by urbanization are the supply of living
areas to the residents and prevention of negative issues brought by unplanned
settlement. For these reasons, central or local administrations prepare plans by taking
into account the life style, character, population, area, service and structural relations
and connections with external world of the areas constituting living areas and they
inspect the progress of settlement to advance in accordance with such plans. The plans
prepared for such purposes are called zoning plans. In this article, firstly the types of
zoning plans will be examined and then pendent durations, administrative objections
and actions related to these plans as well as their reasons will be elaborated.
The zoning plans may be examined under four main headlines. As a matter of
fact, zoning plans are separated into four types as (i) regional plan, (ii) environmental
plan, (iii) master development plan and (iv) implementation development plan in the
Zoning Code (Law No. 3194, published in the Official Gazette dated May 9, 1985 and
numbered 18749) (“Zoning Code”). These plan types are elaborated below:
a. Regional Plans : These are the plans prepared in order to specify the trends of
social and economic development, development potentials of the settlements,
sectoral aims, distribution of activities and infrastructure. Not being solely a
physical plan, regional plans involve a number of policies. The authority to
create or order creation of such plans belongs to the Ministry of Development.
b. Environmental Plans : These are the plans which specify, in accordance with
the regional plans, the settlement and land use decisions for residential,
industrial, agricultural, tourism, transportation areas. Environmental plans are
drawn through association with the relevant regional plans for the areas which
are metropolitan areas or which remain under interest or domain of multiple
settlements aspired to be planned together. While they do not have a specific
definite scale, they are prepared at a scale of 1/100,000 or 1/25,000 and contain
whole of the relevant area.
c. Master Development Plans : These plans are drawn on the regional or
environmental plans (whichever one existing) through inscription of cadastral
status and show general use functions, main region types, future population
densities of regions, (in case it is necessary) structural densities, development
direction, sizes and principles of various settlement areas, transportation systems
and problem resolution methods of//for the relevant lands. These plans also
function to be the source for the implementation development plans. Such plans
are explained through a detailed report and constitute a whole along with their
In other words, master development plans determine the general purposes,
principles and land use decisions within a report. Metropolitan municipalities are
the only authorities in preparation of these plans within the borders of the
metropolitan municipalities. In the provinces which are not metropolitan
municipalities, relevant provincial or county municipalities are authorized to
prepare master development plans. Amendments to the master development
plans are only possible through amendments of the plans of same or superior
level nature. Map scale of master development plans are generally 1/5,000;
however, they may also be prepared at a scale of 1/10,000 or 1/25,000.
d. Implementation Development Plans : Implementation development plans
are the plans with the least level of scale. These plans are drawn in accordance
with the principles of the master development plans. They set forth, in detail, the
settlement and structural order, density and order of the construction blocks,
roads, implementation phases which constitute the source of zoning
implementation programs as well as other phases and other relevant information.
Although they generally have a scale of 1/1,000, they may be drawn at scales of
1/2,000 or 1/500. The authority to prepare implementation development plans
belong to the relevant provincial or county municipalities.
2. Main Principle Shaping the Zoning Law: Hierarchy of Plans
The most important principle shaping the zoning law is that a plan with a lower
scale cannot be in contradiction with a plan with an upper scale (e.g., implementation development plans cannot contradict with the master development plans). This is called
the hierarchy of plans. As per this principle, plans with a lower scale shall conform to
the main principles, strategies and decisions of planning set forth in the plans with an
upper scale. This principle is also upheld in the Turkish State Council (Supreme
Administrative Court) decisions.1 For example, the State Council, in one of its
decisions, held that conversion of a land, which has been designated as an area for
health facilities in a 1/5,000 scale master development plan, into a residential area at a
1/1,000 implementation development plan is in violation of the law and objective
characteristic of the master development plan. From this point, non-conformity of a
lower scale plan with an upper scale plan is unlawful and therefore constitutes a reason
for cancellation of the relevant plan.
3. Administrative and Judicial Procedures Related to Zoning Plans
a. How Are the Zoning Plans Prepared or Zoning Plan Amendments Made?
As elaborated above, the authority of preparation or amendment of zoning plans
(as to which institution – e.g., metropolitan municipality, provincial municipality or
county municipality – would have such authority) would depend on the type of the
zoning plan, the location of land which is subject to zoning (as well as whether such
location is in the borders of multiple provinces or not). For example, the authority to
prepare master development plans belongs to the metropolitan municipality in an area
within the borders of the metropolitan municipality.
The zoning plans are, as a rule, generally prepared by the municipality
authorized to prepare them and approved by the relevant municipal council. Subsequent
to such approval, they obtain the status of an administrative act which may be
implemented. As per Article 8/1(c) of the Zoning Code, the approved plans are
announced concurrently for a period of one month in the announcement areas
determined by the relevant municipalities as well as their websites. This is called the
“pendency period”. “Those concerned” may object to the plans within the one-month pendency
period. However, it is a matter of discussion who “those concerned” are. Such persons
may be the owner of the area subject to zoning, a real person or legal entity resident in
the area or a state institution whose interests are injured.
The objections to the zoning plan or amendment made by “those concerned” are
sent by the municipality to the municipal council. Municipal council examines such
objections within 15 days following the objection date and delivers a final decision on
them. In practice, it is observed that these objections are rejected almost all the time by
the municipal council. In case of such a rejection, “those concerned” may bring a
judicial action for cancellation of the administrative act (i.e. final zoning plan or
b) Bringing a Judicial Action against Zoning Plans or Amendments
Actions brought for the cancellation of zoning plans (i.e. administrative acts)
are under the jurisdiction of administrative judiciary. Accordingly, such actions are to be
brought either before the administrative courts or State Council, depending on the
administrative institution making the administrative act. These cases cannot be brought
before the civil courts.
As per Article 34 of the Law of Administrative Judicial Proceedings (Law No.
2577 , published in the Official Gazette dated January 20, 1982 and numbered 17580)
(“Code of Administrative Judicial Proceedings”), “In implementation of the legal
framework related to the immovable property such as zoning, [...], occupancy or in
relation to all rights about these and public assets, the court with jurisdiction is the court
whereby the immovable property is located.” Accordingly, the court with jurisdiction in
the cancellation of zoning plans is to be determined in accordance with where the
immovable property is located.
As per Article 7 of the Code of Administrative Judicial Proceedings, the time
period to bring an action before the administrative judiciary is 60 days normally starting
from the date of the announcement (this date would start from the announcement or
presumption of rejection of objection in cases where there has been objection in relation to the relevant plan or amendment). This time period is lapse period causing the lapse of
the right to bring an action. Accordingly, the right to bring an action which is not used in
its due time would lapse and then no direct actions will be able to be brought in relation
to the same subject. For this reason, in terms of ownership protection and liability, these
actions must be strictly brought in due time.
Two elements are of specific importance on this matter. Firstly, without
completion of the pendency (announcement) period, no action for cancellation of zoning
plans (or amendments) may be brought. This is because the zoning plans would not be
final (and therefore applicable) unless the pendency (announcement) period is
completed. Without completion of such 30-day pendency (announcement) period, any
action would be premature and rejected, since there would not yet be any final and
applicable administrative act.
Secondly, in case no action would be brought within the time periods indicated
above, then no direct action would be brought with the request for cancellation of
zoning plans or amendments. However, when an action is brought against the
subsequent implementation acts by the administration, cancellation of zoning plans or
amendments may be requested. In other words, when an action is intended to be brought
against a zoning plan's implementation acts such as construction license, zoning status,
parcellation, expropriation, etc., then cancellation of the zoning plan (which is the
source of all implementation acts) as well as other upper level plans may be requested.
In such case, the rights of action of “those concerned” would not be lost.
4. Main Reasons for Unlawfulness in the Actions for Cancellation of Zoning
Plans or Amendments
It should initially be indicated that the zoning plans are, as a rule, nonamendable. They can only be amended in cases required by the public benefit. For
amendment, the required conditions (elaborated in further detail below) shall be fulfilled
and in case such conditions are not met, the zoning plan or the amendment may be
Main reasons for unlawfulness are as below: a. Non-Obtainment of the Opinion of the Investor Institution: The opinion of the
investor ministry or institution, who would execute the project for the relevant facility
(e.g., park, hospital, religious buildings, road, school, etc.) located in the social and
technical infrastructure area to be amended in the zoning plan, should be obtained. In
case the opinion of the investor institution (e.g., ministry, governorship, directorate, etc.)
is negative, this would not mean that the plan may not be amended. In other words, even
if the investor institution has given a negative opinion, plan amendment may be made.
The final decision for this is to be given by the municipality. However, the investor
institution has the right to bring an action against the administrative act (i.e.,
In one of its decisions, the State Council has found a municipal council decision
unlawful because of the fact that the municipal decision has adopted its decision without
showing the elements requiring the plan amendment and without obtaining the opinion
of the relevant institutions.2
b. Non-Allocation of an Equivalent Area: Social and technical infrastructure areas in
the zoning plans cannot be removed, made smaller or relocated unless there is a
mandatory element. In case such an amendment is made, a new equivalent area shall be
allocated in the region whereby the service taken by the facility that is removed, made
smaller or relocated. For example, in case an area designated as a park gets to be
converted into a residential area, then another area in the same neighborhood with
characteristics to be used as a park and with the same size shall be allocated as a park
area. Again, in case we replace the park in the above-mentioned example with a car park
(a technical infrastructure area), then the same would apply.3
c. Plan Integrity Cannot Be Deformed with Amendments: In case of any
contemplated zoning plan amendment, population in the area, density, supply balances
and requirements shall be researched and it should be examined whether the plan
amendment is mandatory. In case it is not mandatory, it would be unlawful to amend the plans in a manner deforming the plan integrity.
d. Compliance of the Zoning Plan and Amendments with the Urbanism and
Planning Principles and Public Benefit: As per Article 11 of the Regulation on Spatial
Plan Making (published in the Official Gazette dated June 14, 2014 and numbered
29030) (“Spatial Plan Regulation”), in preparation of the zoning plans, the assessment
shall be made by taking the future concerns in the account together with the current
concerns in order to establish a healthy and orderly environment in the future.
Accordingly, the public benefit principle would then be taken into account. As also
explained above, the plan hierarchy should be taken into account. These are stand-alone
reasons for cancellation.
e. Non-Obtainment of the Opinion of the Plan Author or Non-Existence of a Plan
Author: As per Article 28 of the Zoning Code and the Regulation on Qualifications of
the Authors Undertaking Plan Making (published in the Official Gazette dated January
7, 2006 and numbered 26046), the zoning plans and amendments are to be prepared by
plan authors who have the qualification license. In cases which there is no plan author,
the reasoned opinion of the author has not been taken for amendment or the amendment
has been prepared by the plan author who does not have qualifications, such acts are
f. Non-Conformity with Procedural Rules in Amendment of Zoning Plans: Nonconformity with the procedural rules set forth in legislation and regulations for
amendment of zoning plans or attendance of a municipal council to the meetings during
discussion of an amendment relating to his/her immovable property (i.e., house, land,
etc.) constitute examples to the reasons of cancellation.
g. Narrowing of a Road with Continuity or Creation of a Dead End Street: As per
Article 26 of the Spatial Plan Regulation, certain regulative norms are stipulated for
plan amendments. For example, a road with continuation cannot be narrowed at certain
areas. Traffic roads cannot be narrower than 10 meters whereas pedestrian ways cannot
be narrower than 3 meters. Again, plan amendments through creation of dead end streets
by municipalities are unlawful. However, in determination of lawfulness in certain cases involving imperativeness in administration's zoning-related actions, the State Council
has taken the necessities required by public benefit into account.4
1 Decision of the Sixth Chamber of the State Council dated May 14, 2010 with Docket No. 2008/6920
and Decision No. 2010/4743.
2 Decision of the Sixth Chamber of the State Council dated October 25, 1989, with the Docket
No. 1988/479 and Decision No. 1989/982.
4 Decision of the Sixth Chamber of the State Council dated February 17, 1988, Docket No. 1987/630
and Decision No. 1988/235.