The Appeal (H)
After seven years of legal and bureaucratic struggle, on 30 June 2005, the Northern District Appellate Committee (NDAC) decided to accept Adalah's appeal on behalf of Adel and Itaaf Sawaed and to grant a permit to the couple to build a family home on their privately-owned land in the Jewish community town of Kamoun, in the north of Israel. The NDAC acceptance of the appeal is subject to the fulfillment of a number of conditions, toward which the Sawaed family is currently working. Adalah Attorney Suhad Bishara is representing the Sawaed family.
Although the Sawaeds' unrecognized house is surrounded by villas inhabited by Jewish families, the local committee of Kamoun, the Israel Lands Administration (ILA) and the Misgav Local Planning and Building Council (MLPBC) objected to granting a permit to them to build a permanent home, insisting that they should instead establish their home in the nearby Arab village of Kamaneh, which received state recognition in 1995.
In its decision accepting Adalah's appeal, the NDAC criticized the MLPBC's management of the Sawaeds' application for the building permit, and stated that, "Generally, we think that local committees should make the effort to serve a citizen in a way that would make it possible for him to build, and would not do all it can to prevent him from being able to do that."
The NDAC added in its decision that, "It seems that the reasoning mentioned in Article 7 of the local planning committee [that allowing different communities to live together in the same community town would cause social problems, and that it is therefore preferable for the Sawaed family to move to the nearby Arab village of Kamaneh] is the real reason for the way things developed and brought us to the situation we face today. The local planning committee [MLPBC], the local committee [of Kamoun] and the ILA assume that it is better that the appellants move to live in Kamaneh and that they do not live within Kamoun."
One of the NDAC's members stated in the committee's decision that, "I have no doubt that the procedures followed by the different [land and planning] bodies aimed at one thing alone – preventing the appellants from being able to build a house in the settlement [of Kamoun] on the basis of their Arab origin. All the planning arguments made by the respondents are a cover for the real goal. They were used to disguise an act that is based on racist logic and nothing more."
Summarizing their position on the appeal, the NDAC stated that, "a.) It is forbidden to discriminate between one person and another on the basis of religion or nationality; directly or indirectly, in the allocation of land; [and] b.) it is possible to allocate land for a group of people who have special characteristics or who form a religious or national minority and are interested in the preservation of their culture or nationality […] [The settlement of Kamoun, however,] is not a settlement that unites a community with either a distinct philosophy or a culture and set of beliefs that differ from the convention in the state of Israel. Moreover, it is not a settlement that is designated for the advancement of a community with special characteristics. We are dealing with a settlement that contains a diverse community, and although it belongs to the Jewish people, it is, nevertheless, not different from any other similar settlement."
A similar appeal submitted by Adel Sawaed's brother, Hatim Sawaed, who was represented by Attorney Hassan Sawaed, was joined to this appeal. The NDAC's decision applies to both appeals.
Adel and Itaaf Sawaed, both of whom are Palestinian Bedouin citizens of Israel, are currently living with their children in a temporary home constructed on their land in Kamoun. Mr. Sawaed's family bought the plot of land in 1919, and in the 1980s the plot was encircled by the development of the new Jewish community town of Kamoun. In 1997, following their marriage to one another, Mr. and Mrs. Sawaed submitted their first application to the MLPBC for a permit to build on their family's land. In 1998, after failing to receive a response from the MLPBC, the Sawaeds decided to construct a temporary family home. In 2000, the MLPBC obtained a court order, valid after 18 months, to demolish the temporary home. In July 2003, Adalah filed a motion to the Acre (Akko) Magistrate Court, seeking an injunction to delay the demolition of the residence. In October 2003, the MLPBC and Adalah reached an agreement to stay the demolition of the home, pending the MLPBC's decision on the building permit sought by the Sawaeds for the construction of a permanent home. The agreement also contained provisions to ensure that, should the MLPBC decide to reject the Sawaeds' request for a building permit and order the demolition of the temporary home, it must provide 30-days advance notice so that an appeal may be filed. In August 2004, the MLPBC informed the Sawaeds that it had rejected their application to build a permanent home in Kamoun.
In its decision to reject the Sawaeds' application for a building permit, the MLPBC claimed that in 1984, the Sawaeds' plot of land was mistakenly designated for residential, rather than agricultural, use, owing to a lack of knowledge on the part of the settlement bodies who originally drafted the master plan that the land in question was privately owned. The committee also justified its decision to reject the Sawaeds' application by arguing that the family would be better suited to life in Kamaneh. "On 3 August 2000, master plan G/9378 was approved for the Arab village of Kamaneh on Mt. Kamoun, which is designated for the Bedouin community who live on the mountain," the committee stated. "The committee believes that if the intent of the applicant to build his house on the mountain is sincere, then, taking into consideration the planning, proprietary and engineering problems in the field, it would be appropriate [for the applicant] to request a plot of land within the boundaries of master plan G/9378, or by an exchange deal with the ILA or by direct lease."
The MLPBC argued further that it "cannot ignore the social problems that arise from different communities living together in the same small community town, such as Kamoun. For this reason too, the option of [the Sawaeds] living in Kamaneh is preferable."
In September 2004, following the MLPBC's rejection of the Sawaed's application for a building permit, Adalah filed an appeal to the NDAC on behalf of the Sawaeds. In the appeal, Adalah argued, inter alia, that the decision to reject the Sawaed's application for a building permit: is arbitrary; was not taken for a legitimate aim and was not based on relevant considerations; lacks the appropriate factual basis; is a disproportionate and illogical measure; was taken in violation of the Planning and Building Law – 1965; was taken by a body exceeding its authority; was not taken in good faith; and violates the basic rights of the appellants. Adalah emphasized that the MLPBC's decision discriminated against the Sawaed family on the basis of nationality.
Appeal No. 192+303/04 Adel Sawaed, et. al. v. Misgav Local Planning and Building Council, et. al. (Northern District Appellate Committee).