Annulment Of The Rule Providing That The Entire Value Increased As A Result Of Zoning Plan Amendment
Subject Rule
The rule subject to the lawsuit stipulates that upon the request of the owners of the immovable property, the entire increased value of the land, which has increased in value as a result of the zoning plan amendment to be made on the island basis, shall be taken as a share of the increase in value.
Grounds for the Request for Annulment
In the application, in summary; it has been claimed that the rule is unconstitutional by stating that there is no public interest in the payment of the entire increased value of the land, which has increased in value as a result of the zoning plan amendment to be made on island basis upon the request of all of the immovable owners, and that the transfer of the entire value increase share resulting from the zoning plan amendment to the public limits the right to property.
Evaluation of the Court
While zoning activities and plans contribute to the economy of the city and the creation of a healthy environment by affecting or directing the investments to be made in the city or its surroundings from a public perspective; from an individual perspective, they affect the economic value of the immovable property owned by the individual. Considering the purpose of zoning activities, it is necessary to prioritize public and social benefit rather than individual benefit in the regulation of zoning plans. For this reason, it is understood that there is a legitimate purpose based on public interest in transferring the increased value of the land, which has increased in value as a result of the zoning application, to the public as a share of value increase.
On the other hand, in zoning activities and plans, public benefit and individual benefit should be reconciled as much as possible and the owners should not be burdened with an excessive and disproportionate burden. In this context, a comparison should be made between the benefit obtained by the owner from the zoning application and the portion of the increased value of the land with an increase in value transferred to the public as a share of value increase. In this context, if there is a clear imbalance between the increase in the value of the immovable property as a result of the zoning application and the value of the part transferred to the administration, the burden imposed on the owner is likely to be excessive and disproportionate.
It is not always sufficient to conclude that an excessive burden is imposed on the owner in terms of the right to property if the public gets a high share of the increase in the value of the immovable due to the zoning application carried out by the public without any inconvenience or cost to the owner. However, even though taking a share from the increase in the value of some people’s assets due to zoning activities serves the purpose of creating financing to ensure that public services based on meeting social needs can be carried out without interruption, it has been concluded that taking the entire increase in value as a share of value increase exceeds reasonable and acceptable measures and it has been concluded that it imposes an excessive burden on the owner.
In this case, it has been concluded that the rule stipulating that the entire increased value of the land with an increase in value is taken as a share of value increase is not in accordance with reasonable and acceptable measures, imposes an excessive burden on the owner, disrupts the fair balance that should be observed between the public interest and the owner’s property right against the owner and thus causes a disproportionate restriction.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and canceled.
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