Government officials have instructed GOC Central Command Maj. Gen. Nitzan Alon to sign an order to allow the placement of temporary structures near Migron in the West Bank, without going through the legally mandated planning procedures.
The structures are to serve as temporary housing for the residents of Migron, an outpost built on private Palestinian land which is slated to be evacuated in the summer.
The Military Prosecutor's Office objects to the move. In a letter written recently to Attorney General Yehuda Weinstein, Central Command legal adviser Col. Eli Baron wrote that this was a dangerous suggestion that creates "a slippery slope of exemptions and variances" and undermined the foundations of planning and building law.
In the weeks following the High Court of Justice's rejection of the compromise that would have left Migron where it was for another three years, the government has been working to set up a temporary site for the residents until permanent homes for them can be built elsewhere.
Defense authorities wanted the temporary site to be in the settlement of Adam, where the permanent homes are most likely to be built, but the settlers are demanding that the temporary site be on "Winery Hill," which is on the same ridge as Migron.
The winery area has an approved building plan that zones it for tourism facilities. To meet the time frame set by the High Court of Justice, which calls for Migron to be vacated by July 31, the state wants to circumvent the rezoning procedure required by law.
The political echelon thus wants Alon to sign an order "Permitting the construction and exceptional use of a temporary residential area of regional importance."
The order would allow the placement of temporary structures there for four years, at points that have regional importance and reasons to justify them. Those erecting the buildings would have to dismantle them within four years or face legal action. Though couched in general language, the order is clearly meant to allow the construction of a temporary site for Migron residents.
The Civil Administration's Supreme Planning Committee, which is responsible for planning and building procedures in Judea and Samaria, could in theory approve the temporary sites quickly, without taking into account broader planning concerns. The planning committee met yesterday and decided to recommend that Alon sign the order.
But Baron, in his letter to Weinstein two weeks ago, explained that "there is significant difficulty in promoting changes to primary legislation to provide a solution for the outpost residents."
Baron noted that "To the degree that changes are made, they must be examined in accordance with previous arrangements, which require the military government to obey the law in the field, including planning and building laws. We thus must determine whether this change is justified because it serves to preserve security or public order, or is being proposed for purposes of governance, or is for the benefit of the local population [meaning the Palestinians]."
Baron added that, "Without elaborating on what is self-understood, creating a slippery slope of exemptions and variances in the regular planning processes under the general mantle of 'public need' undermines the rationales that are the foundation of planning and building regulations.
"In an instance where there can be a regular planning solution, that solution should be preferred over another solution that strays from the regular procedure," he said, noting in this context that there are no obstacles to setting up the temporary site in the settlement of Adam.
Only when there is "a specific diplomatic instruction" that points to "weighty public need" should one consider allocating permits by military order, he concluded.
The IDF Spokesman said, "In accordance with the Supreme Court decision regarding Migron, the state's request to organize the move of Migron's residents to 'Winery Hill' by 2015 was rejected. Instead, the Supreme Court said its verdict must be carried out and Migron evacuated by August 1, 2012.
"The document in question [Baron's letter] from April 11, 2012, is an internal document that presents legal alternatives for dealing with said decision. The document was prepared in response to instructions received to explore an alternative that would be in keeping with the court decision, and would enable the quick and orderly evacuation of Migron residents to Winery Hill.
"In the document, the legal adviser of Judea and Samaria states that despite the legal difficulties attached to the proposal to evacuate Migron residents to Winery Hill, it can be done from a legal perspective, and he outlines the legal way to do so."
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