Planning and Construction Attorney
Nonconforming Use Permits: Obtaining Authorization for Alternative Land Use
Under Israeli planning and construction law, each municipality operates a local planning and building committee responsible for overseeing urban development and land use within its jurisdiction. This committee prepares and approves city building plans — known as Town Building Schemes (TBS) — that define permissible land uses for every parcel of land. The designated use, or “land designation,” dictates whether a given property may be used for residential, commercial, industrial, agricultural, or other purposes. Understanding your property’s designated use is the critical first step before pursuing any change or nonconforming use permit.
By Igal Mor, Adv. & Notary
Accuracy in Legal Advice. Excellence in legal support.
Building restrictions imposed on a property are derived directly from its designated use. These restrictions specify the types of structures permitted, their dimensions, and the activities that may lawfully be conducted on the premises. Any use that falls outside the scope of the designated use constitutes a deviation and may require a special permit from the local planning and construction committee. Failure to obtain proper authorization can result in enforcement actions, fines, or demolition orders.
How Is a Property's Designated Use Determined?
As noted above, a property’s designated use — commonly referred to as its “land designation” — is the specific purpose assigned to that parcel by the local planning and construction committee. Only the designated use is permitted by default; any other use requires a nonconforming use permit. Property owners, prospective buyers, and developers must verify the designated use before making any decisions regarding the property’s intended function.
To accurately determine a property’s designated use, the most reliable source is the current building permit and the applicable Town Building Scheme (TBS). While other documents — such as land registry (Tabu) records or municipal property tax classifications — may reference the property type, they do not always reflect the most current zoning status. An in-force building permit provides the most up-to-date and authoritative information regarding permitted land use, and should always be consulted before relying on secondary sources.
It is important to note that a building permit consists of two components, both of which must be examined together. The first is the written portion, which details the permitted uses and any conditions. The second is a graphic plan that illustrates the property layout and zoning boundaries. Both parts should be reviewed simultaneously to gain a complete understanding of the permitted and intended uses of the land or property in question.
What Constitutes Nonconforming Use of a Property?
Nonconforming use occurs when a property is utilized for a purpose not authorized under its current zoning designation. The term “nonconforming use” may refer to either an unauthorized use of the building itself or an unauthorized use of the land on which the building stands. In both cases, the use deviates from what the applicable planning documents permit, and the property owner may face legal consequences unless a proper nonconforming use permit is obtained.
Nonconforming use can arise in several situations. For example, if a Town Building Scheme authorizes the construction of a residential building, but the owner operates a commercial business on the premises, that constitutes a nonconforming use. Similarly, constructing a structure that exceeds the permitted dimensions or height restrictions under the applicable TBS may also be classified as a deviation requiring special authorization.
Additionally, a situation may arise where a valid TBS exists, but the landowner wishes to use the property for a purpose different from its designation. In such cases, the landowner may apply for a nonconforming use permit — sometimes referred to as a “special use permit” — to obtain legal authorization for the intended use. This process is governed by the Planning and Building Law, 1965, and requires approval from the local planning and construction committee.
It is important to emphasize that nonconforming use is not automatically prohibited under Israeli planning and construction law. The local planning and construction committee has the authority to approve deviations from the designated use under certain conditions. However, the scope of permissible deviations varies depending on the nature and extent of the departure from the original zoning designation.
How to Obtain a Nonconforming Use Permit in Israel
As discussed, nonconforming use may involve either a deviation from the conditions of an existing building permit (where the TBS does not prohibit the intended use) or a deviation from the Town Building Scheme itself. Applications for nonconforming use permits may be submitted in either case; however, it is important to understand that significant deviations from the designated use are unlikely to be approved. Under the Planning and Building Law, the local committee must evaluate each application based on compatibility with the surrounding environment and the overall planning objectives of the area.
It is essential to distinguish between two categories of nonconforming use applications:
- Deviation from the permit: The intended use differs from the specific use authorized in the building permit, but is not prohibited by the applicable TBS. A permit for this type of deviation may be granted on a permanent basis.
- Deviation from the Town Building Scheme: The intended use conflicts with the provisions of the TBS itself — for example, operating a commercial establishment in an area zoned exclusively for residential use. A permit for this type of deviation may only be granted for a limited period, subject to periodic renewal.
As noted above, a permit for use that deviates from the building permit may be granted without a time limitation, whereas a permit for use that deviates from the TBS may only be issued for a defined period. The distinction between these two categories is critical, as it determines both the duration of the permit and the conditions attached to its approval. In practice, many nonconforming use disputes arise from a failure to properly categorize the type of deviation involved.
Who May Apply for a Nonconforming Use Permit?
There is no restriction on who may apply for a nonconforming use permit. However, the application itself must be submitted by a licensed professional — specifically, an architect, structural engineer, architectural engineer, or building engineer. These professionals are authorized to prepare and file the required documentation on behalf of the applicant. For this reason, property owners seeking a nonconforming use permit typically engage a qualified professional to manage the application process.
Stages of the Nonconforming Use Permit Process
1. Request for Information
The first step in the process is submitting a request for information, known as a “permit information file.” This request must clearly state the nature and purpose of the intended nonconforming use, along with the reasons supporting the application. The local planning and construction committee reviews the request and provides the applicant with the relevant planning information necessary to proceed with a formal permit application.
Review of the Nonconforming Use Permit Application
Once the application has been formally submitted and published, the local committee may proceed to review the nonconforming use request. If objections are filed by neighboring property owners or other interested parties, the local committee will conduct a hearing on those objections before reaching a decision. This process ensures that the rights of all affected parties are considered before a permit is issued or denied.
The hearing on the nonconforming use permit application takes place before the local planning and construction committee and is conducted in accordance with the principles of administrative law. After hearing all parties, the committee issues its decision — either approving the application (with or without conditions), or rejecting it. The committee’s decision must be reasoned and based on relevant planning considerations.
If the local committee rejects the application or imposes conditions that the applicant considers unreasonable, an appeal may be filed with the district appeals committee. Each district in Israel has an appeals committee whose members are appointed by the Minister of the Interior. Under the Planning and Building Law, the appeals committee has the authority to overturn the local committee’s decision or to modify the conditions of approval. This appellate review provides an important safeguard for applicants who believe their rights have been unjustly denied.
Case Study: Nonconforming Use Permit Ruling
A notable example is the case of ATM (TA) 21835-07-10, Haim-Zvi Shafarn v. Tel Aviv Local Planning and Building Committee.
This ruling addressed a request by a grocery store owner to obtain a nonconforming use permit. The property in question was designated for use as a bank, but the owners sought to operate a supermarket instead. The court drew a critical distinction between an application that deviates from the building permit and one that deviates from the Town Building Scheme — a distinction that determines the applicable legal standard and the duration of any permit that may be granted.
The court determined that the case involved a deviation from the building permit, and therefore applied the compatibility test. Under this test, the committee examined whether the surrounding infrastructure — including parking facilities, road access, and pedestrian traffic patterns — could accommodate the proposed supermarket use without causing undue disruption to the neighborhood. The committee also considered the impact on neighboring businesses and residents.
Applying the compatibility test, the court found that the majority of customers accessed the grocery store by bicycle, public transportation, or on foot, which mitigated concerns about parking and traffic congestion. Based on this analysis, the court concluded that the proposed use was compatible with the surrounding environment and upheld the grant of the nonconforming use permit. This ruling illustrates the practical application of the compatibility standard in Israeli planning law.
Generally Summary - The appeal committee was entitled to examine the planning situation in relation to the plans applicable to the building after the Supreme Court had referred the permit issue back to it for reconsideration. According to the appeals committee, the use of the building as a grocery store is consistent with the plans, but not with its construction permit. Therefore, as determined by the appeals committee, this request is for an extraordinary use, which deviates from the permit but not from the plan. It was not denied, in this case, the respondents' claim that the market should be analyzed in light of the "suitability test." In addition, I do not accept the petitioners' claim that the unloading and loading of the trucks caused excessive noise. The claims regarding noise levels that exceeded the permissible limit were not substantiated by an opinion as required, and are in conflict with the conclusions of the appeals committee. In any event, if the petitioners or any of them are indeed suffering a noise nuisance, or if the petitioners suspect such a nuisance will occur in the future, they may decide to take measures in accordance with the law as they see fit It is the same with respect to other nuisances, such as those caused by the supermarket's operation, or by its possible deviation from the license's terms... Based on all the evidence presented to her, she determined that: This supermarket meets the requirements. There is no reason to interfere with her conclusion, since according to the parking regulations, it is not required that the supermarket's operation have a parking lot and that the proposed parking solution is not unreasonable to the extent that the court will intervene, let alone that it be implemented in practice and approved by the relevant party within Tel Aviv Municipality.
Why Legal Representation Is Essential
Obtaining a nonconforming use permit involves navigating complex regulatory requirements, strict documentation standards, and multi-stage administrative proceedings. The guidance of an experienced planning and construction attorney is invaluable throughout this process. At Mor & Co. Law Firm, we specialize in real estate, planning, and construction law, and provide comprehensive legal support for clients seeking nonconforming use permits and other zoning authorizations.
The Real Estate, Planning, and Construction Department at Mor & Co. brings extensive experience in both real estate transactions and planning proceedings before local and district committees. Our firm is committed to delivering professional legal representation that protects our clients’ property rights while ensuring full compliance with Israeli planning and construction regulations. Contact us today for a consultation regarding your nonconforming use permit application.