Construction in Conservation Areas — Permits, Restrictions, and Compensation

Conservation areas (sit alanlari) are areas subject to special protection regimes for the purpose of preserving cultural and natural values. Conservation areas, regulated by the Law on Conservation of Cultural and Natural Assets No. 2863, are an important legal concept that directly affects property rights due to construction restrictions. This article comprehensively examines the concept of conservation areas, conservation area classifications, conservation-oriented zoning plans, construction restrictions, and compensation claims arising from property rights.

What Is a Conservation Area and What Are Its Legal Bases?

A conservation area refers to areas that represent products of various civilizations from prehistoric times to the present, forming a unique landscape in combination with topography, or areas where important historical events took place, and regions of nature that need to be protected. Pursuant to Article 3 of Law No. 2863, conservation areas are classified as urban conservation areas, archaeological conservation areas, natural conservation areas, and historical conservation areas.

The declaration of conservation areas is made by the Regional Conservation Boards for the Conservation of Cultural and Natural Assets. In areas declared as conservation areas by board decision, transitional period construction conditions apply until a conservation-oriented zoning plan is prepared. During this period, constructing new buildings, making substantial changes to existing buildings, and changing land use are generally prohibited.

The legal bases of conservation areas include: the Law on Conservation of Cultural and Natural Assets No. 2863, the Zoning Law No. 3194 (provisions regarding conservation-oriented zoning plans), the Regulation on the Preparation, Presentation, Implementation, Supervision, and Authors of Conservation-Oriented Zoning Plans and Environmental Design Projects, and Article 63 of the Constitution (protection of historical, cultural, and natural assets).

Conservation Area Classifications and Construction Conditions

Conservation areas are divided into different classes according to their degree of protection. Pursuant to Law No. 2863 and related regulations, conservation area classifications and the construction conditions for each grade differ.

Grade I Archaeological Conservation Area

Grade I archaeological conservation areas are the most sensitive areas under protection. No construction is permitted in these areas. These are conservation areas that must be strictly protected and preserved as-is, except for scientific studies. Even agricultural activities may be restricted. Only scientific excavation work and essential infrastructure work can be conducted in Grade I conservation areas.

Grade II Archaeological Conservation Area

In Grade II archaeological conservation areas, limited construction is possible provided that conservation and use conditions are determined by the conservation board. Construction permitted in these areas is subject to the conditions specified in the conservation-oriented zoning plan. A favorable opinion from the regional conservation board is mandatory for construction permits.

Grade III Archaeological Conservation Area

In Grade III archaeological conservation areas, construction permits may be issued in accordance with the conservation-oriented zoning plan. These areas have more flexible construction conditions compared to Grade I and Grade II conservation areas. However, a favorable opinion from the regional conservation board is required for construction permits, and construction conditions are determined by the conservation-oriented zoning plan.

In urban conservation areas, construction conditions are determined by the conservation-oriented zoning plan. The preservation of registered buildings is essential, and compatibility with the surrounding fabric is required for new construction. In natural conservation areas, restrictions vary according to the degree of conservation.

What Is a Conservation-Oriented Zoning Plan and How Is It Prepared?

A conservation-oriented zoning plan is a special-purpose zoning plan prepared for the purpose of preserving and developing natural and cultural values in conservation areas. Pursuant to Article 17 of Law No. 2863, no development can be implemented in conservation areas without a conservation-oriented zoning plan. This plan contains construction conditions, use decisions, and implementation provisions appropriate to the area's conservation grade.

The authorized institution for preparing the conservation-oriented zoning plan is the municipality or special provincial administration. However, the approval of the plan depends on the favorable opinion of the relevant Regional Conservation Board. The Board monitors the plan's conformity with conservation principles and may request necessary changes.

The preparation process for the conservation-oriented zoning plan is quite lengthy and complex. First, a detailed analysis of the area is conducted. Registered buildings, archaeological remains, natural values, and the existing building stock are identified. Then, plan decisions are formed with due regard to the conservation-use balance. Experts from different disciplines, including urban planners, archaeologists, art historians, restoration specialists, and environmental scientists, participate in the plan's preparation.

The failure to prepare or delay in preparing the conservation-oriented zoning plan constitutes one of the most important problems in conservation areas. Transitional period conditions are applied until the plan is prepared, and construction is largely restricted during this period. This situation seriously limits the property rights of property owners.

Construction Permit Process in Conservation Areas

The construction permit process in conservation areas requires a different and more complex procedure than the normal zoning process. The following steps must be followed to obtain a construction permit:

The first step is to determine whether a conservation-oriented zoning plan exists. If there is no conservation-oriented zoning plan in the conservation area, transitional period conditions apply and, as a rule, no new construction permits are issued. In areas with a conservation-oriented zoning plan, a project must be prepared in compliance with the construction conditions permitted by the plan.

The second step is to apply to the Regional Conservation Board. The prepared project is submitted to the relevant Regional Conservation Board. The Board evaluates the project's compliance with the conservation area protection conditions. If the Board provides a favorable opinion, the project is submitted to the municipality for a building permit application.

The third step is obtaining a building permit from the municipality. After obtaining a favorable opinion from the Regional Conservation Board and ensuring compliance with the conservation-oriented zoning plan, a building permit is obtained from the municipality. Construction activities can begin after the building permit is obtained.

The fourth step is construction inspection. Construction inspection in conservation areas is conducted more strictly than in normal areas. The Regional Conservation Board can check whether the construction is being carried out in accordance with the project. If construction violating the project is detected, the construction can be halted and a demolition order can be issued.

Effect of Conservation Area Declaration on Property Rights

The declaration of a conservation area is an administrative act that directly and significantly affects the property rights of property owners. Construction restrictions, use limitations, and disposition restrictions arise in properties declared as conservation areas. These restrictions can reach dimensions that may affect the essence of property rights.

In the decisions of the Constitutional Court and the European Court of Human Rights, the question of whether restrictions imposed by conservation area declarations violate property rights has been comprehensively evaluated. Both courts accept that restricting property rights for the purpose of public interest is legitimate but emphasize that the restriction must be proportionate and must not impose an excessive burden on the owner.

When property rights become effectively unusable due to the conservation area declaration, this can be evaluated as de facto expropriation from a legal perspective. In this case, the property owner can claim expropriation value or compensation. De facto expropriation lawsuits are filed in civil courts of general jurisdiction.

Compensation and Value Assessment in Conservation Areas

Property owners whose property rights are restricted due to conservation area declarations can claim compensation through various legal channels. These channels include:

De facto expropriation lawsuit: When the property becomes effectively unusable due to the conservation area declaration, the property owner can file a de facto expropriation lawsuit to claim compensation. In this lawsuit, the value of the property is determined by an expert, and the administration is obligated to pay the determined value.

Payment through exchange: Pursuant to Article 17 of Law No. 2863, it is possible to exchange properties in conservation areas with Treasury properties. The exchange transaction is carried out by the Ministry of Environment, Urbanization, and Climate Change upon the application of the property owner. The exchange value is determined based on the market values of the properties.

Transfer of development rights: It is also possible to provide compensation to the owner by transferring the development rights of the property in the conservation area to another parcel. However, transfer of development rights has not yet been comprehensively regulated in Turkish law, and various problems are encountered in practice.

Property tax exemption: Properties declared as conservation areas are exempt from property tax under certain conditions. Pursuant to the Property Tax Law No. 1319, properties located in Grade I and Grade II archaeological conservation areas are exempt from property tax.

Objection and Annulment Lawsuit Against Conservation Area Decision

Legal remedies can be pursued against the conservation area declaration. The conservation area decision is an administrative act and can be subject to an annulment lawsuit in the administrative court pursuant to the Administrative Procedure Law No. 2577. The annulment lawsuit must be filed within 60 days from the notification of the decision.

Grounds for unlawfulness that can be raised in the annulment lawsuit include: the conservation area declaration not being based on scientific and technical data, the decision being unreasoned, the conservation grade being disproportionately determined, the conservation area boundaries being incorrectly drawn, and procedural errors.

The request for stay of execution is also of great importance in lawsuits filed against conservation area declarations. Since the implementation of the conservation area decision would seriously restrict the property owner's rights, obtaining a stay of execution order is critically important for preventing irreparable damages.

Restoration of Registered Buildings in Conservation Areas

The restoration of registered buildings in conservation areas is subject to special rules. Permission from the Regional Conservation Board is mandatory for repair, restoration, and alteration works on registered buildings. Unauthorized changes are subject to criminal and administrative sanctions.

Preserving the original characteristics of the building is essential in preparing the restoration project. The main objectives of the restoration process are removing elements added to the building that distort its original fabric, strengthening the structural system, and making the building functional.

State contribution may also be available for the restoration of registered buildings. Pursuant to Law No. 2863, financial support can be provided by the state for the conservation and restoration of registered immovable cultural assets. This support may be in the form of project preparation assistance, restoration credit, or direct financial contribution.

Conservation Areas in Court of State and ECHR Decisions

The Court of State monitors the legality of conservation area decisions from various perspectives. According to decisions of the 6th Chamber of the Court of State, conservation area declarations must be based on scientific and technical data. Conservation area decisions made without reasons or with insufficient reasons are annulled.

The Court of State also emphasizes that the conservation grade must be determined in accordance with the principle of proportionality. It has been stated that the absolute application of construction bans may violate property rights and that the conservation-use balance must be observed.

The European Court of Human Rights (ECHR) has evaluated conservation area restrictions within the framework of property rights (ECHR Additional Protocol 1, Article 1) in numerous cases against Turkey. While the ECHR finds the restriction of property rights for the purpose of public interest legitimate, it has emphasized that the restriction must be proportionate and the owner must receive reasonable compensation. It has been ruled that long-term restrictions without payment of compensation violate property rights.

Unauthorized Construction and Sanctions in Conservation Areas

Unlicensed construction or construction that violates conservation rules in conservation areas faces severe sanctions. Pursuant to Article 65 of Law No. 2863, persons who conduct unauthorized excavations in conservation areas, damage registered buildings, or construct in violation of conservation area rules are punished with imprisonment and judicial fines.

The crime of zoning pollution under Article 184 of the TCC can also be applied to unauthorized buildings in conservation areas. Since conservation areas are considered within the scope of areas subject to special zoning regimes, Article 184 of the TCC can be applied even outside municipal boundaries. This increases the deterrent effect in conservation areas.

In terms of administrative sanctions, demolition orders are issued and administrative fines are imposed for unlicensed buildings in conservation areas. The execution of demolition orders is followed up more strictly in conservation areas. When Regional Conservation Boards detect unauthorized construction, they immediately notify the relevant administration.

Disclaimer: This article has been prepared for general informational purposes and does not constitute legal advice. It is recommended to consult a specialized attorney for specific disputes regarding construction and property rights in conservation areas.