Analysis of the Law on Transformation Areas

Under Disaster Risk

Adopting ‘the government, officials, state’ in the definition of public policy, points to

where the decision and policies with all relationships with other parts of policy such as policy

package, implementation taken and source of those policies. Put aside the disputes on

questions about agenda setting for instance what affects and how can intentionally be

affected, for a while. What government or state means and how using these words in defining

public policies affects those who are dealing with it whatever the title as a bureaucrat,

professional, academician or student. What those words connote and evoke focuses especially

on the concept of regulation. At this point it is crucial to grasp essence of the regulation. The

letter and spirit, aim, application/implementation of regulation provides subtitles.

Probably the most complicated form of policy making is the urban regeneration

policies. Such policies are directly related with not only spatial issues but also rights of the

targeted population. Relationship between policy package and implementation process is an

intertwined one and is one of the factors that have crucial significance on setting down whom

worse off and who better off. Instead of placing the issue on the floor of grand ideologies such

as role of state as class apparatus or assigning a relative autonomy, it is possible to see how a

small piece of empirical reflection of ambiguity is hard as much as stone. It is possible to

argue that policy package stands as airborne concepts, terms and it gains its content and

meaning at the implementation level. Whatever is the aim to regulate, package by its very

nature has to be compatible with existing ones even before it gains its meaning. Otherwise,

the problems are already ‘wicked’ and ‘benign’, the situation will lead to chaos. In this sense

regulation which is also reflects a part of policy package, has to be not only compatible but

also non-discriminating.

The Law on Transformation Areas under Disaster Risk is a good one to evaluate the

accordance and differentiation of ambiguity, the aim and the implementation with other

existing rules, regulations. Since the law is very recent and disputable, it is hard to find a case

where it is solely applied. In my paper I will try to analyze the law in terms of loopholes,

ambiguities and the reflections of applications in the case of Derbent, which can be evaluated

as a straw case, as much as the law applied. It is possible to reach broader implications on

ideology and tools of implementation. However, the point of stress is that how the loopholes

and ambiguities may donate implementers with a huge discretionary power, to use those

ambiguities as a threat to rights of people such as property and shelter. In first part I will try to

analyze, the law and its’ application implication. In the second part, I will mention about the

Derbent case. In the last part, there will be an evaluation.

Analysis of the Law and Application Regulation

The law was passed in 16 May 2012. The law apparently has ambiguities and

loopholes. This ambiguousness may raise important problems in terms of property rights of

target population of urban transformation projects when the law is applied. Most of the

articles are problematic and do not provide even basic framework. It is obvious that this law

huge discretional powers to the executive.

In the first article, the purpose of the law is presented as ‘to provide procedures and

principles of improvement, refinement and renewal of areas that under the risk of natural

disaster and the risky buildings in order to establish safe and healthy living areas convenient

to technical and artistic norms and standards’. However, the law does not provide any

applicable definition of risky areas or risky buildings that will be subjected to articles of that

law. As Chamber of Civil Engineers states when we consider that ninety-two percent of land

of our country is under the threat of earthquake risk, the prominent feature will not be

structure of the soil, will be the structuring on the soil (İnşaat Mühendisleri Odası). In the

second article what makes a building risky defined as ‘petering its’ economic life’ and ‘carries

the risk of collapse or heavy damage’. Article does not answer the questions such as what is

the meaning of petering economic life or even why the term of economic life is used to

define. Also if a building is proved having risk to collapse in anyway, it is possible to be

demolished by state agencies according to law. Last clause of the third article allows

integrating riskless buildings into project because of application integrity. This clause can be

interpreted as a contradiction with the essence of the law. Since the law aims to regulate those

areas and buildings that under the threat of natural disaster, it will be contradictory to include

risky free buildings into the scope of the law (Avcı, 2013, s. 190). By this article, property

rights of owners, tenants or those who have de jure rights on the building or parcel on which

the house, workplace, any kind of building was constructed on may be directly intervened.

Apparently first three articles may be used with bad intentions and in terms of property rights

these articles, enables agencies to demolish even risk free buildings and areas. Also, in these

articles participatory mechanisms are not adopted except state agencies such as Mass Housing

Administration.

In the first clause of fourth article, in the areas that are announced as under the threat

of natural disaster all zoning and construction processes may be temporarily halted. This

article also implies direct limitations to property rights. It deprives the owners to use their

stakes as they wish. As defined, the right of property includes doing everything to the thing or

in the thing that the one owns (as cited in Avcı, 2013). Another problematic issue in the article

lies in the word of temporarily. What the law maker means by temporarily is not stated. It

may result in arbitrariness in the decisions of the agencies and this absolutely intervenes,

limits the right of property. In the third clause of fourth article, it is possible to stop public

services of buildings that declared risky or all buildings in the risky area such as natural gas,

water, electricity supply in response to claim of the related administration. If an owner do not

reach an agreement with actors of project such as state agencies and even his/her building is

not risky but included because of application integrity, it is possible to stop public services

that are basics for continuation of life such as water. As Demirkol and Bereket Baş argue this

law is to force people to abandon their homes and may lead to important health and safety

problems (2013).

The fifth article of the law does not bring obligation for aids to evacuated owners,

tenants, or to those who have limited real rights on the house or the land that the house,

factory or workplace was built up. It is up to institutions that partake in the process whether or

not to subsidy. Also, it is possible to use this article as a mechanism of sanction (Bereket Baş

& Demirkol, 2013, s. 48). It is possible to not accept rights of squatter house owners, tenants

and anyone who may claim de facto rights on building that are subjected to the law.

In the first clause of sixth article two third of the stakeholders’ approval is accepted as

enough to decide rebuilding, sale of stakes, and decision about the type and size of parcels on

which the application will be loaded. According to this article stakes of remaining one third

who do not agree with the project whatever the reason is, may be sold to stakeholders who do

agree on the project. Prices of the stakes will be determined by related ministry and sold by

auction. If other stakeholders do not or cannot buy, the stakes will be in officio registered as

the assets of Department of the Treasury. It is allowed that the rights of the remaining one

third of stakeholders can be denied. This article means that it is possible to abolish property

rights (Bereket Baş & Demirkol, 2013). In the second clause, it is stated that ‘…if the two

third could not reach an agreement, the stake can be subjected to urgent condemnation…’.

When we look to the Law of Condemnation numbered 2942, urgent condemnation is set in

27th article. The reason of urgent condemnation is put up as in case of national defense,

extraordinary situations that are pointed in particular laws, and urgency which is determined

by cabinet degree. This article means that if an area or building is announced as risky it is

possible to limit property rights of all stakeholders. Even we put aside the rights of owners in

risky areas and risky buildings, what is the reason to include risk free buildings to urgent

condemnation?

Moreover, ninth clause of the same article reduces the time of litigation from sixty

days to thirty days for processes that are made according to the law and prevents judiciary to

decide on stay of execution. This article is evaluated as a limitation to the right to legal

remedies (Bereket Baş & Demirkol, 2013, s. 54). Since the court decision about stay of

execution is to provide efficiency in suit of nullity, what article provides may result in

irreversible damages. In the third clause of the eighth article those who disrupt the evacuation,

destruction and valuation acts will be treated according to the Criminal Law numbered 5237

and official complaint will be turned to the prosecution. As it can be inferred, those who has

any kind of rights and want to resist against the acts of administration may be treated as

guilty. Again this article may be used as a threat those who does not want to leave. And at the

end, in the ninth article a list of legislations that are not applicable when processes are made

according to the Law on Transformation Areas under Disaster Risk numbered 6306.

Application Regulation of the Law

It is seen that the regulation of law does not quench the ambiguities in the law. To

begin with, as the 7th article suggests determination of the risky areas and buildings may be

asked by related ministry to the owners at its own expense. If the owner does not do it in

given time, it can be done by ministry or the administration. In the eighth clause of the 7 th

article information about the areas and buildings which are determined risky is reported to

Directorate of Land Registry. This means that if an area or building is registered as risky this

information will be appeared on the title deed. This may be beneficial for who wants to buy a

land or flat. However, if the decision about riskiness is wrong it will affect owners badly. In

the 7th article the owner may apply to related administration for objection. If a stake’s

situation is become definite as risky, as second clause of the eighth article suggests

administration sends a notification to the owner and asks destruction of the risky construction

or the construction on the risky area and gives a due time for destruction. At the end of the

given time, if the owner did not destruct, the administration may give additional time. At the

end of the additional time if the building did not been destructed, the administration asks to

related agencies to stop public services such as natural gas, electricity, water to the mentioned

area. Those who disrupt the evacuation, destruction and valuation acts will be treated

according to the Criminal Law numbered 5237 and official complaint will be turned to the

prosecution. Moreover, the costs of demolition is reported to the Directorate of Land Registry

and the Directorate registers this info on owners land shares as debts, according to the fifth

clause of the eighth article. If municipality cannot do the destruction, it will be done by the

ministry.

After the destruction, as twelfth article provides the value of the real estate either the

destroyed building and the land is determined by a commission includes at least three

members from which will be selected among employees of related institution the ministry, the

administration and the MHA. Along the value determination process, the commission

determines the value according to the 11th article of the Law of Condemnation numbered 2942

and makes use of views of experts, estate agents. As known, the value of condemnation is

determined generally on the basis of tax return. The deal may be done for flat, workplace.

The value of the real estate is subtracted from cost of the new unit which was dealt. These

rights were given to the owners of real estates. However, for tenants, managers and those who

have limited real rights are not lucky as much as owners. The fourteenth article for tenants

and managers puts a provision of having been dwelled for one year to deal for flat or

workplace with related institution. However, the important part is that according to the

fifteenth article if the decisions about rebuilding, sale of stakes, and decision about the type

and size of parcels on which the application will be loaded cannot be taken unanimously,

decision of two third, those who attend meeting of decision not two third of the owners, is

enough to decide. According to same article stakes of remaining one third who do not agree,

may be sold to stakeholders who do agree on the project by auction. Prices of the stakes will

be determined by related ministry and sold by auction. If other stakeholders do not or cannot

buy, the stakes will be in officio registered as the assets of Department of the Treasury.

Another important issue is that in the seventh clause of the fifteenth-A article the real estate

that are burdened with mortgage or charge are not exceptional. This article eliminates third

parties who has lent money or gave credits to the owners. Additionally, legal persons or legal

entities that will made acts in the framework of the law will be benefited from exemption of

taxes such as stamp tax, notary fees, title deed and cadastral fees, municipality fees,

inheritance and transfer tax.

Mapping Derbent (Çamlıtepe) Neighbourhood1

Derbent is a neighbourhood in province of Sarıyer. The neighbourhood is near to Şişli

and Maslak. These two places are known as industrial and business centres. In Derbent

neighbourhood, there exist MESA houses in which people with upper-middle income live,

and squatter houses. With its very existence, Derbent neighbourhood stands as a picture of

socioeconomic differences. Those dwellers in squatter houses are poor people and do not have

houses even in their hometowns (Pınar, 2011). Among dwellers of squatter houses common

jobs that in the neighbourhood are being driver, charlady and repair. In the squatter area, there

exist shopkeepers, craftsmen number of which more than one hundred. Thirty percent of the

dwellers in squatter houses are tenures. The prices rents of squatter houses vary in between

200-400 Turkish Liras (Pınar, 2011). In MESA houses, same price rises to almost 3500

Turkish Liras.

In 24 January 2013, a part of Derbent neighbourhood is announced as risky area by the

decree of council of ministers in accordance with the law on Transformation Areas under

Disaster Risk (Resmî Gazete, 2013). The request for the risky area announcement is made by

The Ministry of Environment and Urban Planning. The important detail about the risky area is

1 Informations about Project is somehow is not accessible on the internet except two news in Radikal. The reason may be that with the operation in 17 December, the whole shares of Yorum İnşaat are purchased and the owner of the firm was took into custody. Thus the crude information on details of project are taken from those two news in Radikal which is added to the references.

that the borders of the area do not touch flats or complexes in site of MESA Houses (İnce,

Derbent'in derdi risk mi rant mı?, 2013). The risky area encloses interestingly the squatter

settlement in Derbent neighbourhood. This situation means that municipalities, local

administration units are inactivated by the law, let alone expecting dwellers’ participation.

Another result of the ambiguity in the law is that with vague definition of risky area, it is

possible to define it on very different principles such as economic value, poor outlook. It is

hard to grasp the rationale behind excluding the apartments from the risky area. If the area is

risky, there exists only a big wall between the squatter houses and lucrative flats. However,

the application integrity follows the wall not a fault line or geographical route.

After the announcement had learnt by dwellers in squatter houses, they worried about

their future. After almost one year the project about the risky area is announced. The actors

were İstanbul Metropolitan Municipality and Yorum Building Enterprise. According to the

project, in the risky area 1652 social houses will be constructed. The sizes of these so-called

social houses are changes between 51-74 m2. However, according to the info that

Municipality of Sarıyer presents there exist nearly 2040 houses in squatter settlement. This

means that almost 400 house will be evicted for nothing. This part of story is unplanned (İnce,

Derbent'te Ayrımcı Dönüşüm, 2014). Also, sizes of houses that will be constructed in the

framework of project are not social as much as the word suggests. This is also another

consequence of loophole and ambiguity in law. The law and regulation did not foresee any

matchup between houses that will be demolished and will be constructed, in terms of sizes.

Another important point in the project is that additional 934 luxury houses will be constructed

for new buyers. Also sizes of luxury houses, exceeds the sizes of being social, changes in

between 137-291 m2. In the project social houses are replaced away from their old houses.

They lose the advantage of being near to the metro station. Also for the owners of workplaces

and tenants there exists nothing in the project.

However, the resistance movement welcomed the project. The prefabricate houses were built

up to reside those who will be evicted from squatter houses until the project is done. Since the

project merely excludes those residents, they showed resistance and claim for their rights.

They bring issue to the court and claim a stay of execution. Those problems are common in

the sense that these are results and reflections of ambiguity in implementation. However, there

is also direct intervention of property rights and construction of prefabricate houses before

reaching an agreement with dwellers is a corroborative example. This people will be evicted

and their estates, houses, ateliers, shops and rights as a tenure or de facto, will be evicted as in

cases of Tarlabaşı, Başıbüyük and Ayazma. A bureaucrat who works in The Ministry of

Environment and Urban Planning, when we interview looked the law laughed and said that

‘the law on Transformation and by this law we can almost demolish any building and restructure any

area’ (***, 2014). Areas Under Disaster Risk is a restatement of what they have been doing before the

law is passed’. However, it is more easy to applying law when the target in somehow attached with

informality, illiteracy or socio-economically disadvantage as it seems.

Evaluation

Again if we evaluate the overall process, the law is already legitimization of what

patterned, structured ways of behaviour of state agencies saw as a natural. Depriving people

from their rights, for the sake of saving them from being a disaster victim, may reflect, in the

first glance, letter and spirit of the law. However, when extra dynamic processes of public

policy came to the stage of implementation with its focus of application and ignorance, stands

as a weapon, and threat mechanism to force and evict dwellers, sometimes for nothing.

If we are to attach informality to this relationship between law-maker, implementer

and dwellers, the decision-makers side goes in hand by informality. It should be noted that

dwellers of squatter settlements may tend to reflect more informality; however, they pay their

wages, they get daily public services such as electricity, natural gas and water supply. Also,

they are not new-comers they have been established in the neighbourhood for decades. The

other side of relationship tries to go beyond the borders of formality with the ambiguousness

to implement. Who defines an action as formal or informal? The case shows that formality,

informality, action and ignorance are by their very nature intertwined and these are not stuck

with any single actor such as being a citizen or bureaucrat. In the same process, which

implements the project and deprives dwellers from their shelter, may announce as guilty who

opposes and claims only his/her rights.

The side of the law-makers may be done in letter with political worries. Theory and

practice cannot differentiate in any way as much as in this case. It is possible to induce the

third parties with that we are trying to serve those who have risky buildings and who

buildings in risky area. An in case of fail, it is possible to charge bureaucrats. Also, the work

that will be done is construction, sales of land, demolition. Who will get what? From the

dwellers side it is almost certain that they are on the side of losers. Problematizing as much as

can be dealt or creating problems that to serve hidden aims? Which one is good option, if the

state is to accumulate with primitive methods? The most practical one is leave the rule open-

ended and apply it where it is necessary. This allows to the agencies to stay on the floor of

legitimacy while depriving people from their rights.

References

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Avcı, A. (2013). 6306 Sayılı Afet Riski Altındaki Alanların Dönüştürülmesi Hakkında Kanun Açısından Mülkiyet Hakkının Sınırlandırılması. D. D. Yasin, & Y. D. Şahin (Dü) içinde, Kentsel Dönüşüm Hukuku (s. 187-204). İstanbul Üniversitesi S.S.ONAR İdare Hukuku ve İlimleri Araştırma ve Uygulama Merkezi Yayınları.

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