Amendment 3A To NOP 38

Background and purpose of the amendment

It has been over a decade since the National Outline Plan (NOP) 38 in the matter of building reinforcements from earthquakes, was first approved. One of the substantial amendments to the provisions of NOP 38, is the second amendment approved in 2010 which added demolition and construction provisions to the plan, under the framework of an NOP 38 project ("NOP 38/2").

Throughout actual implementation of the provisions of NOP 38/2, it transpired that the calculation of rights under the NOP 38/2 format, is not clear enough, and is open to different interpretations, leading to two entirely different main calculation methods regarding the scope of building rights provided under the provisions of NOP 38/2.

On November 21, 2016, amendment 3A to the provisions of NOP 38 was approved ("Amendment 3A"). Amendment 3A focuses mainly on the method of calculating building rights under the NOP 38/2 format (demolition and construction); the local committee's discretion in NOP 38 projects and; in the matter of demanding a letter of indemnification from the developer. In this article, we will focus on the issue of calculating building rights.

In order to comprehend the provisions of Amendment 3A which relate to the way of calculating the scope of building rights, we will shortly describe the two different methods for calculating building rights prior the amendment, after which we will describe the method of calculation determined under the framework of Amendment 3A.

For the sake of good order, it is noted that Amendment 3A relates only to projects under NOP 38/2 format (i.e. demolition and construction). The scope of rights under an ordinary format of a NOP 38 project - building reinforcement and adding floors - remains unchanged.

Calculation methods prior Amendment 3A

The customary method for calculating the scope of building rights was based on a typical floor which is possible to build upon, according to the zoning plan applicable in the area, as distinct from what is built in practice (the "New Building Method").

The above method was rejected by the district appeals committee of Tel Aviv, headed by the chairman of the committee, Adv. Gilat Eyal, which determined that calculating building rights under NOP 38/2 shall be done based on the actual existing typical floor (the "Existing Building Method").

The differences between the two methods are substantial with regard to the scope of building rights which may be granted...