Risk Area Identification Phase in Urban Transformation

When urban transformation is limited to making a single building earthquake-resistant, it becomes impossible to achieve the macro goals of modern urbanism, such as infrastructure integrity, green space creation, transportation planning, and the creation of social facilities. While the renovation of individual buildings on a plot-by-plot basis (on-site transformation) may ensure safety, it does not solve the chronic problems of the city such as narrow streets, insufficient parking, and infrastructural decay. Therefore, Law No. 6306 on the Transformation of Areas Under Disaster Risk has shifted its focus not only to individual "risky buildings" but also to the broader "Risky Areas .

Identifying risky areas is one of the largest and most radical legal instruments of urban transformation. Because when this decision is made, hundreds, even thousands, of buildings within those boundaries (even those that are completely sound and new) are included in the transformation scope with a single administrative decision. Since this enormous authority constitutes one of the most severe public interventions against property rights, critical issues such as its legal limits, declaration criteria, and especially the subsequent amendment to the law ( "Additional Article 1") , form the areas where administrative law and constitutional rights are most intensely debated.

This article analyzes the "Risky Area" identification phase in urban transformation, the legal criteria for this identification, its relationship with concepts such as "reserve building area" and "implementation integrity" which have led to major controversies and loss of rights, the crucial Annex Article 1 regulation of the law, and the legal remedies (litigation processes) available to property owners against these decisions , adhering to an academic systematic approach but using clear language easily understandable by every citizen.

1. What is a Risky Area? Conceptual and Legal Framework

Law No. 6306 includes two types of risky area definitions and processes. The first is the classic definition of a risky area found in the original text of the law; the second is the area covered by Additional Article 1, which came into force later and aims to overcome bottlenecks in the field.

Classic Definition of a Risky Area

According to the general definition of the law, a risky area is an area that carries the risk of causing loss of life and property due to its ground structure or the buildings on it, and is determined by the Ministry or TOKİ (Housing Development Administration of Turkey) and declared by a Presidential decree.

• Risk Due to Soil Structure: This includes geological reasons such as the area being prone to landslides, floods, avalanches, or directly passing through an active fault line. In this case, even if the buildings on it are new and solid, the entire area is declared risky because the soil is hazardous.

• Risk Due to Construction: This refers to a situation where the vast majority of buildings in the area (at least 65%) were constructed in violation of engineering and architectural standards, lacked engineering services, and consist of unlicensed or illegal structures, thus posing a collective risk of collapse.

2. Authority and Determination Process: Who Makes the Decision and How?

Declaring an area at risk is not a simple process that a single municipality or individual can undertake unilaterally. It is a hierarchical process requiring approval from the highest levels of government.

Application and Proposal Phase

The process of identifying at-risk areas generally begins in two ways:

1. Public Sector Application: The relevant municipality, Provincial Special Administration, or TOKİ (Housing Development Administration of Turkey) prepares technical reports for a region within its boundaries. These reports include soil surveys of the area, photographs showing the general condition of buildings, satellite images, and the region's disaster history. The prepared file is submitted to the Ministry of Environment, Urbanization, and Climate Change.

2. Application Upon Citizen Request: The administration can also initiate this process upon the written request of property owners (at least 15%) within the boundaries. However, this method is quite rare in practice.

Decision and Announcement Stage: Presidential Authority

The Ministry examines the technical file it receives and, if it deems it appropriate, submits it to the Presidency along with its own opinion. The area officially gains legal status as a "Risky Area" a Presidential Decree . The moment this decree is published in the Official Gazette, the area officially acquires the status of a "Risky Area," and all construction and property transactions in the region are frozen.

3. Revolutionary Amendment: What is Additional Article 1?

In the early years of Law No. 6306, declaring large areas as risky based solely on criteria such as "ground conditions" or "dilapidated structures" faced legal obstacles. The Council of State repeatedly overturned decisions by the administration that declared areas as risky simply because "this is an old neighborhood," without conducting sufficient technical analysis, in order to protect property rights.

To circumvent these administrative cancellation decisions and accelerate the area-based implementation of urban transformation, Additional Article 1 was added to the law. This article introduced much more practical and flexible new criteria alongside the "technical disaster risk" criteria for declaring risky areas.

What are the criteria for Additional Article 1?

ADDITIONAL ARTICLE 1- (Added: 14/4/2016-6704/25 art.)

(1) a) In places where public order or security is disrupted in a way that will stop or interrupt normal life; areas where planning or infrastructure services are inadequate or where there is construction contrary to the building regulations or where the building or infrastructure is damaged,

1. b) Areas where at least 65% of the total number of structures are in violation of zoning regulations or were constructed without a building permit but subsequently obtained building and occupancy permits

In order to create healthy and safe living environments in accordance with the norms and standards of science and art, and to ensure the orderly provision of public services such as health, education, and transportation, an area may be designated as a risky area by the President. The boundaries of the risky area are determined by considering the integrity of the implementation.

(2) a) A lawsuit can be filed against the risky area decision from the date of its publication in the Official Gazette. No lawsuit can be filed against the risky area decision regarding the implementation procedures.

1. (b) All procurement of goods and services and construction works carried out using public funds in risky areas determined in accordance with subparagraph (a) of the first paragraph shall be considered as works based on the conditions specified in subparagraph (b) of the first paragraph of Article 21 of Law No. 4734.

According to Additional Article 1, it is not necessary to scientifically prove that an area will collapse in an earthquake or that a fault line passes beneath it in order for it to be declared a risky area. An area can also be declared a risky area in the following cases:

• Implementation Integrity Criterion: In areas where public order or security is disrupted to the point of halting normal life; and where "regional decay" occurs due to inadequate infrastructure services, narrow transportation routes, or the inability to implement urban development plans, this area may be declared a risky area in order to ensure holistic urban development practices (implementation integrity).

• High Density of Unlicensed and Illegal Buildings: Areas where at least 65% of the total number of buildings consist of buildings that violate zoning regulations, are unlicensed, lack occupancy permits, or do not have building use permits, may be declared risky areas under this article without a direct disaster risk analysis.

• Preservation of Historical and Cultural Fabric: The boundaries of this article may also be used to remove substandard, illegal, or aesthetically unappealing structures surrounding historical sites or cultural heritage areas, thereby revealing the historical fabric.

Academic Evaluation of Additional Article 1

In academic circles, Additional Article 1 is heavily criticized for significantly narrowing the scope of property protection. While in classic risky areas the administration is under strict burdens of proof such as "scientific soil surveys and core tests," Additional Article 1 grants the administration the authority to transform large properties based on more easily provable grounds such as "the rate of unlicensed buildings" or "inadequate infrastructure." This is criticized for allegedly shifting urban transformation from a "disaster-focused" to a "zoning-focused" approach. However, from the administration's perspective, this article is a vital practical tool for the mass demolition of dilapidated and irretrievably slum-infested areas.

4. Legal and Practical Consequences Arising from the Declaration of a High-Risk Area

The moment a region is declared a risky area or a transformation area under Additional Article 1 by presidential decree, life and the rule of law in that region change radically:

• Suspension of Construction Activities: All licensing, construction, renovation, and mapping activities in the area will be immediately halted. Existing development plans will be suspended.

• Consolidation and Subdivision: The administration may merge or separate parcels in a region, or alter their boundaries in the land registry, even without the parcel's consent.

• Ease of Notification: The requirement to notify each property owner individually, as in the case of individual building assessments in risky areas, has been relaxed. Publication of the decision in the Official Gazette and its physical announcement in the area (posting at the local administrative office, etc.) serves as notification. This situation makes it more difficult to track the deadlines for seeking redress.

• Disconnection of Infrastructure Services: Electricity, water, and natural gas services will be disconnected by administrative decision for buildings that are not evacuated within the specified timeframes.

5. Legal Remedies Against Risk Area Designation: A Guide to Legal Action

The decision designating an area as a risky zone, signed by the President and published in the Official Gazette, is a final and enforceable "administrative act" in administrative law. In accordance with Article 125 of the Constitution, which states that "Judicial review is open against all actions and decisions of the administration ," citizens have the right to file a lawsuit for the annulment of this decision.

However, high-risk cases differ significantly from ordinary administrative cases in terms of procedure and the court to which they are subject.

A. Competent and Authorized Court: Directly the Council of State!

While lawsuits against classic risk assessment reports are filed in local "Administrative Courts," the authority to which a lawsuit should be filed is the Council of State , the highest administrative judicial body of the state, since the declaration of a risky area is made by a Presidential Decree .

• The Sixth Chamber of the Council of State hears these cases as a court of first instance .

• Therefore, citizens must submit their lawsuits directly to the Council of State in Ankara, not to local courts (petitions can also be sent through local administrative courts, but the defendant is the Council of State).

B. Time Limit for Filing a Lawsuit: A Narrow 30-Day Period

The principle of rapid progress in Law No. 6306 also applies here. The time limit for filing a lawsuit against the declaration of an area as a risky zone 30 days.

• Critical Warning: In classic legal cases, the time limit begins the day the notification reaches the individual. However, in decisions concerning high-risk areas, the date of publication in the Official Gazette is considered "notification by announcement," meaning even a citizen who hasn't received any letter must follow the decision in the Official Gazette and file their case within 30 days. Missing this deadline completely eliminates the possibility of seeking justice.

C. Plaintiff Status: Who Can File a Lawsuit?

Within the boundaries of the aforementioned risky area;

• Property owners (properties) who own real estate (apartments, shops, land),

• Holders of limited real rights,

• Professional organizations operating in the region and directly affected by the decision (such as the Chamber of Architects and the Chamber of City Planners) have the legal standing to file lawsuits to protect the public interest in the region.

D. Defendant: Against Whom is the Lawsuit Filed?

The lawsuit is filed against the Ministry of Environment, Urbanization and Climate Change, which prepared the risky area proposal, and the Presidency , which signed the decision (jointly or separately).

6. Grounds for Legal Irregularities That Can Be Raised in a Council of State Case

In an annulment lawsuit filed with the Council of State, mere emotional or personal reasons such as "I love my house, I don't want it demolished" have no legal value. The plaintiff must present scientific arguments demonstrating the administration's technical and legal errors. In this context, the following claims should be made in court:

1. Insufficient Technical Reports (For Classic Risky Areas)

When declaring an area a high-risk zone, the administration is obligated to submit comprehensive scientific reports on soil surveys and the condition of buildings. If the administration makes a decision based solely on exterior photographs of buildings in the area, without conducting any core tests or soil drilling, and makes generalizations ("the buildings in the area are old and may collapse," for example), the Council of State will directly annul this decision on the grounds of "insufficient and abstract technical examination." Established Council of State precedents are very strict on this matter; generalized administrative decisions lacking scientific data are doomed to be annulled.

2. Incorrect Application of the Criteria in Additional Article 1

If the area has been declared under Additional Article 1 (on the grounds of unlicensed building ratio or integrity of implementation), the plaintiff may raise the following irregularities:

• Claim that the 65% Threshold Has Not Been Exceeded: If it is scientifically proven (by examining municipal archive records) that the rate of unlicensed or illegal buildings in the area is not actually above 65% as claimed, and that the majority of the area consists of licensed and legal buildings, the decision will be overturned.

• Arbitrariness of Boundaries: In cases where the administration, under the guise of "implementation integrity," unfairly includes an area containing perfectly sound, licensed, and luxurious residential complexes within an adjacent slum area simply to maintain "project integrity," the Council of State may decide to exclude the area with sound buildings from the risky zone boundaries.

3. The Importance of Expert Examination

The Sixth Chamber of the Council of State, after receiving the administration's defense in the cases filed, always appoints an expert committee consisting of independent university professors (from the departments of Civil Engineering, Geophysics, and Urban and Regional Planning). This committee visits the area and conducts an on-site investigation. The court shapes its decision based on the scientific data in this expert report.

7. What happens if the case is won or lost?

When the annulment case before the Council of State comes to an end, one of two scenarios will occur.

Scenario A: Acceptance of the Case and Decision to Annul it

If the Council of State finds the risky area designation or the application of Additional Article 1 to be unlawful and annuls it, this decision shall be nullified with retroactive effect and all its consequences

• The "Risk Area" designation for the region will be removed.

• Construction restrictions are lifted, and property owners regain their previous construction rights.

• Any eviction or demolition notices issued by the administration based on this decision become completely null and void.

• If the authorities have demolished some buildings during this process, property owners have the right to file a lawsuit against the state for very serious material and moral damages.

Scenario B: Dismissal of the Case

If the Council of State finds the administration's decision to be in accordance with the law and scientific principles and rejects the case, the risky area designation becomes final. After this stage, property owners have only one remaining step within domestic law: an individual application to the Constitutional Court (AYM).

• Citizens can apply to the Constitutional Court within 30 days of the Council of State's decision becoming final, on the grounds that their property rights and the right to a fair trial have been violated . However, an individual application to the Constitutional Court does not actually stop the demolition process unless there is a very extreme violation of rights (for example, the complete non-payment of compensation for expropriation or the complete disregard of the right to defense).

Conclusion: Legal Protection at the Boundaries of Public Security

The identification of risky areas in urban transformation and the expansion of these boundaries with Annex 1 constitute one of the most aggressive defense mechanisms developed by the state against collective threats such as earthquakes and natural disasters. Annex 1 has provided the administration with a great scope for action in overcoming bureaucratic obstacles, creating comprehensive urban development plans, and clearing dilapidated areas.

However, this broad authority, if not clearly defined and applied fairly, has the potential to lead to serious violations of property rights, the right to housing, and constitutional rights. In a state governed by the rule of law, the guardian of this balance is the high court. Annulment lawsuits filed with the Council of State are the greatest legal shield available to citizens against arbitrary or profit-driven boundary determinations by the administration that are not based on scientific data.

It is vital for citizens to defend their rights with professional legal and technical support within the very narrow 30-day period that begins with the publication of the decision in the Official Gazette, both to protect individual property rights and to ensure that urban transformation is guided by justice and science, not by profit.