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 Full Assessment of National Planning Council Appeals Subcommittee Decision on Kedem Compound

On June 7, 2015, the Appeals Subcommittee of the National Planning Council approved the plan for the Kedem Compound in Silwan, albeit with significant amendments, detailed below.  By a simple majority, the subcommittee partially accepted claims raised in appeals against the District Committee’s approval of the plan, including an appeal submitted on behalf of Ir Amim by Atty. Ishay Shneydor.

Concerted and combined efforts by residents of Silwan, Ir Amim, Emek Shaveh, professional bodies, planners, public figures, intellectuals and others led the Appeals Subcommittee to rule that the sweeping plan be reduced by at least half. The subcommittee's decision reveals that once again that the authorities, including the Israel Nature and Parks Authority, the Antiquities Authority and the mayor, have been following Elad’s lead.  Ir Amim profoundly regrets that the subcommittee did not take the additional step of cancelling the plan entirely.  The subcommittee’s decision thereby provides Elad with another platform through which to advance its political agenda and tighten its foothold in the heart of a Palestinian neighborhood located just 20 meters from the walls of the Old City. 

A full outline of the majority opinion and background on the plan’s advancement through the planning process are provided below.  The opinion acknowledges the irreconcilability of the proposed functions and scope of the Kedem plan with the existing national outline plan and instructs that the authority to permit construction on the site must be interpreted restrictively.  It delimits activities to be conducted at the site to those that respect the overriding intention of the national park in which it is sited: the perpetuation of the archaeological, historical and scenic values of the site and their public exposure.  It also prescribes that any deviation from existing principles guiding the appearance, visibility and presentation of the Old City Wall be minimized.

It is important to note that the Appeals Subcommittee’s decision to return the plan to the District Committee for discussion and amendment of the plan is a noteworthy exercise of its authority.  That being said, the Subcommittee interpreted that a redeposit of the plan at the District Committee is unnecessary, thereby opening the door for the District Committee to allow a moderate interpretation of the Subcommittee's decision and to bypass a public objection period.  

The planning and appeals process once again serves to reveal the powerful influence of the Elad settler group on Israeli authorities, including the Israel Nature and Parks Authority (INPA), the Antiquities Authority and the mayor.  Instead of fulfilling their roles as watchdogs of the public interest, the authorities have instead protected the interests of the Elad settler organization.  We regret that the Subcommittee found no fault in the relationship between these private and public entities, rejecting Ir Amim’s argument challenging the privatization of national parks, particularly to a private entity with a divisive political ideology. While the decision underscores that primary responsibility for management and operations should remain with the INPA, Ir Amim’s longstanding work to challenge privatization of daily management of the City of David demonstrates the ongoing symbiosis between the Authority and Elad. Ir Amim once again draws attention to the critical role privatization of national parks plays in consolidating Israeli control of Palestinian land as part and parcel of settlement expansion.

The Decision of the National Planning Council’s Appeals Subcommittee

The subcommittee decided to approve the Kedem Complex plan “with certain amendments."  The required amendments were approved by a simple majority (three subcommittee members – the chair, representing the Justice Ministry, with a double vote; the representative of the Ministry of Environmental Protection; and the representative of the Ministry of Interior Affairs).  Three subcommittee members held the minority opinion: the representative of the Ministry of Construction and two representatives of the local government.v

The subcommittee's unanimous decisions:

1.     In principal, on the statutory and planning levels, there is no reason to prevent the structure being erected on the lot, to serve as a visitors’ center, reception point, and entryway to the Jerusalem Walls National Park.

2.     The subcommittee rejects the claim that it is illegal for the structure to be erected by a private entity with a polarizing ideology. “Nothing prevents allowing Elad, as a private entity, from operating the proposed visitors’ center...while emphasizing that management and operations be subject primarily to Nature and Parks Authority discretion” (Section 386 of the ruling).

3.     The subcommittee clarified that the plan would not allow the excavation of any pedestrian tunnels connecting the site to its surroundings.  Beyond requiring a building permit, excavation of a connecting tunnel would also be stipulated on approval of a detailed statutory plan.

4.     When excavation is complete, a building permit requested, and a conservation plan drawn up, the Local Committee will be required to present it for public review and comments, including those of the appellants, before a construction permit may be granted (section 348).

The majority opinion

§ The nature of functions and extent of land in the proposed plan are inappropriate in light of National Outline Plan 8 and Administrative Appeal 9. The authority to permit construction on this site must be interpreted restrictively. The functions and uses permitted at the proposed visitors’ center must be delimited only to those with a clear and crucial affinity with the purpose of the national park – perpetuation of the archaeological, historical, scenic, and other similar values of the site, and exposing them for the public.

§ According to the principles laid out in 9עמ, the appearance, visibility, and presentation of the [Old City] wall must be preserved, and any deviation therefrom must be kept to a reasonable minimum.

§ Contrary to the position Mayor Barkat has stated before the Appeals Subcommittee and elsewhere as to the need to accommodate touristic needs in light of the increased number of visitors, the majority members of the subcommittee rule that the Givati Parking Lot complex is able to accommodate this need only to a limited extent:

“The Givati Parking Lot site is in fact part of the national park itself, the primary purpose of which, as previously noted, is to preserve its scenery, legacy, etc.  Therefore, erecting such a large structure in the park – even if it serves a need for the visitors at the many sites in and around the park – harms the park itself, and indirectly also the sites located in it” (section 244).

§ Ancillary uses of the structure must be substantially and directly related to the park’s mission. The subcommittee lays out appropriate criteria for determining suitable uses for inclusion in the structure, insofar as an effort is made to minimize the extent of construction required:

  1. Uses serving the need to preserve antiquities onsite and present excavation findings

  2. Uses which would help the public visit the site

  3. Uses which would allow the national park visitors to pass through the site to receive information about sites within the national park

  4. Uses intended to add interest for visitors beyond the findings therein are not in the realm of suitable purposes. For example, there is no justification to conduct any educational activities or informational activities in the structure. The structure may include spaces in which informational activities regarding the findings from the site itself may be conducted.

§ Based on these criteria, the extent of the structure’s area must be examined meticulously. The Subcommittee rules that subtracting purposes according to these criteria should “very significantly reduce the extent of construction on the site (by tens of percentile points)” (section 259). For example:

  1. Construction should be allowed on about half of the antiquities site only. About half of the site in which the antiquities were found must be maintained as open space, with no roofing or under light roofing only.

  2. The height of construction in any section of the structure may not exceed the determinations of the District Committee.  The Appeals Subcommittee notes this as “one story above the level of the sidewalks on Ma’ale Hashalom street and Ma’ale David street” (section 273c).  In contrast, we read differently the District Committee’s ruling on the reduced height of construction “such that it does not exceed the height of the base of the wall and Ophel Street”.

  3. Use of public audiovisual displays will be permitted only on the lower level, and not, as the plan submitters require, in four enclosed halls over 450 sq. m.

  4. The subcommittee is skeptical about the need for the space allocated for displays and presentation rooms in the plan. 

  5. A number of personal lockers will be permitted for site visitors only.

  6. Offices will be permitted only as needed for the site itself.

  7. The extent of parking will be limited to site visitors only. It cannot be used, for instance, as parking for visitors to the Western Wall and Old City or the residents of Silwan.

  8. Consideration must be given to reducing the area allotted for commercial use (400) to a reasonable minimum necessary for food and a souvenir shop.

§ The Subcommittee determines that the plan’s bylaws must clearly lay out all of the possible uses of the complex.

In summary, the majority opinion determines that the plan should be returned for discussion at the District Committee so that the latter may order the plan to be amended according to the tests and principles laid out by the subcommittee and the determinations expressed in the majority opinion as to the specific purposes and extents of construction.

As the subcommittee notes, it avoids setting in stone the precise areas to be reduced and leaves the matter to the judgement of the District Committee.

The Appeals Subcommittee adds that it doubts the amended plan must be deposited anew once is prepared. It determines that as things stand, a re-deposit of the new plan is not necessary. However, the subcommittee states that it “does not set this matter in stone.” 

The Appeals Subcommittee also recommends to the District Committee that the new plan, to be drawn up by the initiators according to the District Committee’s stipulations subject to the guidelines of the Appeals Subcommittee, be brought before the National Parks Council so that the Council can discuss it and advise the Nature and Parks Authority, which it has thus far not done.

The minority opinion held that the District Committee decision should be left standing.

Summary of previous proceedings

On April 3, 2014, the Jerusalem District Planning and Building Committee approved the Kedem Compound plan (Plan no. 13542)—a  plan promoted by the Elad settler organization to construct a five-story structure (more than 16,000 sq. m.) in the Givati Parking Lot in the neighborhood of Silwan, about 20 meters from the walls of the Old City.  The plan was drawn up by architect Arieh Rachamimov and garnered enthusiastic support from the authorities: it was advanced at record speed from the Local Planning and Building Committee to the District Committee, the Israel Nature and Parks Authority joined the plan as an additional submitter, and Mayor Nir Barkat took the trouble of attending the District Committee plan deposit hearing to voice his support for the plan’s approval. Although the District Committee ordered the building to be lowered by one story, it rejected substantive objections to the plan.

Multiple appeals against the plan’s approval were subsequently submitted to the Appeals Committee of the National Planning and Building Council, including those by residents of Silwan; Ir Amim; Emek Shaveh; and a group of 35 planners, conservation experts and intellectuals, represented before the Appeals Subcommittee by Prof. Alona Nitzan-Shiftan.  An appeal was also submitted by Elad and the INPA against the District Committee’s reduction of the structure’s approved height by one story.

Most of the appeals against the plan’s approval were founded on the argument that the plan serves as a pretext for Israel to promote another settlement in the heart of Silwan, in grave violation of conservation principles regarding the Old City and its surroundings. As stated in the appeals, the plan will significantly alter the Old City environs, deviating from rules of conservation and planning practiced for decades, and all without the level of deep and open public debate required for decisions of this magnitude.

The National Planning Council’s Appeals Subcommittee held three hearings. The first commenced on March 12 but was canceled due to an apparent conflict of interests, namely discovery that the representative of the Ministry of Environmental Protection is the son of the plan’s listed conservation adviser.  Two full appeal hearings were held on May 27 and 28.


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