The Tokyo High Court reversed a lower court ruling Wednesday and withdrew an order for a real estate developer to remove the top seven floors of an apartment building in Kunitachi, western Tokyo.
The building is part of a four-structure apartment complex on a scenic tree-lined street, known locally as Daigaku Dori or University Avenue, built by Meiwa Estate Co. in December 2001 amid strong protests from local residents that it infringed on their right to scenery.
In a landmark ruling in December 2002, the Tokyo District Court ordered Meiwa Estate to remove the top 23-meter section of the 44-meter-high east building — the one structure out of the four that faces the avenue — recognizing the residents’ decades of effort to protect the scenery by not building structures higher than the 20-meter tree line.
The ruling Wednesday by presiding Judge Satoshi Ohto was read by proxy Judge Yoshihisa Takano.
“Beautiful scenery is a mutual asset that benefits all people and residents. But this does not mean that individual residents can claim private rights to enjoy the scenery,” the high court said.
It said that acknowledging such a right of individuals would hinder the creation of “a socially balanced pleasant scenery.”
Meiwa Estate had presented a plan in August 1999 to Kunitachi city to build an 18-story, 53-meter-high apartment on the avenue.
Residents protested fiercely and the mayor of Kunitachi issued nonbinding “instructions” to Meiwa Estate to respect the city residents’ voluntary rules on the height of buildings. But the developer went ahead with construction after altering the plan to a 14-story, 44-meter-high complex in January 2000.
Immediately afterward, the city government passed an ordinance banning construction of buildings on the avenue taller than 20 meters.
But Meiwa Estate started to sell the apartments in February 2002, saying it had not violated the Building Code as the Kunitachi ordinance was passed after construction had started.
Forty-nine nearby residents and the nearby Toho Gakuen elementary, junior high and high school filed a lawsuit with the Tokyo District Court in March 2001, claiming that the apartment seriously violated their rights to scenery and sunlight, and created a strong feeling of oppression among the residents.
In a news conference following the ruling, Nobuya Onishi, director of Toho Gakuen, said the plaintiffs would immediately appeal the case to the Supreme Court. Onishi, one of the plaintiffs, said he is confident the ruling will be reversed again by the top court.
“We have seen several judicial judgments regarding this case and understand that the court decision is completely split in two — one which is on the residents’ side and the other on the contractor’s,” he said. “But we know that the Supreme Court has recently been making correct decisions that do not just follow those by the high court.”
There have been several court cases involving the Kunitachi apartment building, resulting in a variety of decisions.
In a lawsuit filed by local residents against the Tama area architectural guidance center, which oversees Kunitachi, the Tokyo District Court ruled in December 2001 that construction of the apartment section higher than 20 meters was illegal.
But this decision was reversed by the Tokyo High Court in June 2002. That case is now before the Supreme Court.
In a lawsuit filed by Meiwa Estate against Kunitachi city for enacting and enforcing the ordinance, the Tokyo District Court ordered the municipality to pay 400 million yen in damages to the developer in February 2002. The city has appealed to the high court.
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