Can a real estate developer annex a part of the natural coastline that was intended to be public property, then turn it into a prosperous commercial enterprise? What are the state and local authority supposed to do to ensure that the coast remains designated for public use only?

The Ashkelon beach. – Photo: Eliyahu Hershkowitz

These fundamental issues are today being put to the test in the wake of a controversy over the future of a property on Ashkelon’s beachfront, in a spot where a commercial enterprise is operating. The Ashkelon municipality is trying to ensure that the property continues to be designated for public use, and to determine which activities can be carried out there. Meanwhile, the municipality has failed to attain either goal.

More than 40 years ago, a local resident received a permit for setting up a kiosk on the beachfront. The kiosk was known as the White Booth. According to the municipality, over the years the entire beachfront was designated for public use and the area on which the kiosk was located was expropriated. A few years ago, the leasing rights to the property on which the kiosk had been set up were transferred to Ronen Tabakol, a local businessman. At that point, the structure located there was already dilapidated.

Tabakol wanted to build a reception hall on the property; the municipality claims he carried out unauthorized construction work and that part of the structure went beyond the boundaries of the property he had leased. Last year the municipality sued him in Ashkelon Magistrate’s Court for the allegedly illegal construction work, and even got a court injunction suspending all activity on the property.

Tabakol claims he simply renovated an existing structure and did not exceed the property’s boundaries. Moreover, he claims, the municipality without justifcation prevented him from receiving a permit and even promoted the planned development of a promenade that would block his access to the site. Pledging to subpoena dozens of municipal officials to court, he says they will corroborate his arguments and refute the municipality’s claim that he carried out illegal construction work.

When the municipality’s refused to grant him a building permit, Tabakol turned to the Southern District Planning and Building Committee’s appeals panel. The panel decided last week that Tabakol should have his building permit as well as the right to request another one. Even before that decision was made, Ashkelon Mayor Itamar Shimoni said the municipality would oppose plans to build a reception hall and garden, and at most agree to a coffee shop or small restaurant operating, as before, on the disputed property.

Thus the municipality, while still suing Tabakol for unauthorized construction, is being forced to give him a building permit and even grant him an additional one. In response, the municipality appealed the granting Tabakol a lease for the property. The municipality decided a few months ago to ask the Be’er Sheva District Court to recognize its rights (and, in effect, those of the general public) to the beachfront property. Tabakol argues that the property was never legally expropriated from him.

Meanwhile, a state representative told the court that Ashkelon municipality and the Israel Lands Authority sought to exclude the property from the beachfront areas that had been expropriated. In this manner, the property dispute with Tabakol would be terminated. No explanation was given for this decision, which was made after the municipality gave the court numerous documents at the start of legal proceedings. These documents, the municipality claims, prove the property was legally expropriated and thus belongs to the municipality. Moreover, the state did not explain how its decision conforms to the definition of the beachfront as “dedicated lands” intended for public use.

In response, the Ministry of Justice argues that “from the historical standpoint, various planning activities were carried out over the years that were intended to serve as the expropriation of a portion of a general-purpose area. These activities are controversial. In this portion of land which was intended to serve as an open public area there were and still are enclaves of commercial lots (where eating establishments are to be located) in the city’s urban plans. The boundaries of the expropriation, if it was ever conducted, are unclear, as is the question of the applicability of the expropriation to these enclaves. This is especially the case in light of the fact that, over the years, the authorities approved the transfer of rights for this property. Moreover, during that period, the municipality collaborated with the state in the allocation of those properties to private entities. Recently, in the wake of the legal dispute between the municipality and Tabakol over other issues, a need has arisen to clarify the issue of the original expropriation. This subject is currently being discussed by the municipality and the state in an effort to resolve the problems and therefore we cannot elaborate any further on this subject.”

Apparently, Shimoni has already conceded this property after stating that the court seems to be hinting that there is a problem with the expropriation. Surprisingly enough, the legal adviser to the municipality of Ashkelon, attorney Shani Stern, is not prepared to see the public beachfront be transferred to private hands. In the course of the discussion of issue the before the appeals committee, she stated categorically: “The municipality owns this property; this is an unquestionable fact. We have presented our motion and are arguing that the question of ownership regarding this property must be decided by a court verdict.”

One cannot help but be troubled by the Justice Ministry’s position in this affair. Instead of adopting a position that makes every attempt to return part of the beachfront to its original category as being designated solely for public use, the prosecution is relying on the lack of clarity in the Ashkelon municipality’s past policy of expropriations and land allocations. The result is the exclusion for the benefit of a real estate developer of a property on a natural beachfront that contains no other commercial property. This policy could create a precedent that might encourage other players to utilize the mechanism of leasing or land allocation in order to anchor property rights in virgin landscapes.

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