By DAN IZENBERG
The High Court of Justice will have to decide whether to fine the Hefziba and Green Park construction companies for violating a court-ordered building freeze or legitimize the illegal act by modifying the freeze retroactively, following a court hearing on Sunday.
The case involves the controversial construction of the neighborhood of East Matityahu, a sub-development of the settlement of Modi'in Illit.
Peace Now, represented by attorney Michael Sfard, petitioned the court last January to stop construction in East Matityahu on the grounds that it was based on a town planning scheme that had not yet been approved. There was an approved outline scheme for Matityahu East, but it called for half the amount of residential housing as envisaged in the new plan. The road system in the approved plan was also different from the new one. The building companies built in accordance with the new scheme even though it was not approved.
The petition challenging the legality of the construction is still pending. In the meantime, the court issued an interim injunction prohibiting the construction companies from carrying out any more work on the project until it handed down a final ruling on the case. It also prohibited homeowners from moving into their apartments pending the final ruling.
Before ruling on the petition, the High Court wanted to be sure the new outline scheme, which called for the construction as it had been carried out by the companies, was approved by the government's National Planning Council.
As a precondition for approving the new outline scheme, the construction companies were ordered to make some physical changes at Matityahu East to restore privately owned Palestinian plots of land inside the boundaries of the neighborhood that the companies had already built on.
For the companies to carry out this work, the High Court issued a new interim injunction allowing the companies to carry out the necessary work. But in making these changes, the companies had to do away with the access road to a group of residential buildings occupied by families who had moved in before the court ordered the freeze. To compensate them, the builders began to construct of a new segment of access road, approximately 80 meters long, without the court's permission. Construction of the segment was halted before it was completed.
The National Planning Council was due to decide whether to approve the new town planning outline scheme on September 20, 2006. Had it done so, the High Court likely would have rejected the Peace Now petition and allowed the companies to continue building. However, one day before the scheduled hearing, the Civil Administration discovered the new road segment and informed the National Planning Council that the builders had violated the court-ordered freeze. As a result, the National Planning Council, with government backing, declined to decide whether to approve the new outline plan.
Since September there has been no movement either regarding approval of the new outline scheme or the Peace Now petition. But in the interim, Hefziba petitioned the High Court for permission to build a temporary access road (essentially to approve the road segment currently under construction without calling it a road segment) to serve the residents until the new outline scheme was approved. Lawyers representing other respondents in the case went further, asking the court to change the terms of the court-ordered building freeze to retroactively legitimize the road segment under construction.
The lawyers argued that it was a matter of "life and death" for the families already living in East Matityahu. They said that as long as the National Planning Council did not approve the new outline scheme and the High Court of Justice did not approve the request to retroactively legitimize the illegal road segment, the true victims of the stalemate were the residents, even though they had done no wrong.
A lawyer told the court that a child in one of the buildings had got stuck in an elevator. When a fire truck was dispatched to rescue him it got stuck in the mud of the unfinished road segment. Another fire truck was sent, but it also got stuck in the mud. Finally a third truck was dispatched. Its team pulled the first two trucks out and extricated the boy. But the child, whose father brought him to the courtroom, had remained in the elevator for a long time, and during that time was frightened and in tears.
Sfard argued that the court should not let the building companies off by retroactively legitimizing their illegal actions. He said this was the problem in this case. The builders and public officials involved in the affair had built apartments illegally and would be let off the hook as soon as the new outline scheme was approved by the National Planning Council. The construction companies were asking the court to let them off the hook regarding the road segment that had been built in violation of the court order.
Sfard demanded that the companies be held accountable for their deeds. He said that according to the contracts they had signed with the tenants, there were penalties in case they did not provide what they had promised. The companies should compensate the tenants and find alternative housing for them until all of the problems holding up construction were solved.
The state's representative, Orit Koren, told the court that the builders should be made to take all the routine steps required for permission to build a road. Until then, the National Planning Committee should withhold final approval to the new outline scheme.
Justice Ayala Procaccia, who issued the interim injunction halting all construction in Matityahu East almost one year ago, indicated that she believed the companies should be fined for starting construction of the road segment in violation of the court order.
The court, headed by Supreme Court Deputy President Eliezer
Rivlin, will rule on the request at a later date.
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