Urban Planning Long-term Non-performance Case

(11-2 KCCR 383, 97Hun-Ba26, October 21, 1999)

A.Background of the Case

In this case, the Court reviewed Article 4 of the Urban Plan-ning Act that limited change in use or construction activities on thedesignated urban planning sites, and found it nonconforming to theConstitution for excessively limiting the land owners' right to prop- erty.

Article 4 of the Urban Planning Act bans all changes in use orconstructions except on permits and yet does not provide for any com-pensation for the limitation on the property rights.

The complainants are land owners in City of Sung-nam. Theirproperties were designated for school sites in 1982 but were neverdeveloped for such purpose for more than ten years. The complain-ants filed a suit against the state claiming property loss in the Seoul District Court, and requested constitutional review of the Urban Plan- ning Act. When denied, they filed a constitutional complaint. (Orig-inally, the petitioners requested review of Article 6 of the Act. TheCourt considered the basis for the complaint andsua spontechangedthe subject matter to Article 4.)

Since the 1962 enactment of the Urban Planning Act and until theend of 1997, about two hundred thirty thousand urban planning sitedesignations applied to 2.9 billion m2. However, the sites were notdeveloped on 1.3 billion m2. About 0.5 billion m2were left undevel-oped for less than ten years, 0.4 billion m2for at least ten and lessthan twenty years, 0.3 billion m2for at least twenty years and lessthan thirty years, 0.1 billion m2for more than thirty years.

B.Summary of the Decision

The Court found Article 4 of the Urban Planning Act noncon-forming to the Constitution while holding it temporary applicable asfollows:

When a private property is designated for development of roads,parks, schools, and other urban planning facilities, it cannot be im-proved upon or changed in any way that makes the designated de-velopment more difficult until it is bought and developed by the state. The no-change duty is imposed on the owner of the property. Whenprivate use is excluded or the previously permitted use is banned bythe urban planning site designation, causing substantial monetary loss,such designation goes beyond social limit and is tantamount to ataking that

needs be compensated.

The compensation for the urban planning site designation mustbe resolved by balancing the mandatory and important public natureof the state or local governing entities' urban planning tasks and theproperty right of the monetarily affected landowner. Therefore, thelegislature must set up a compensatory provision that compensatesthe loss from the point where the use restriction becomes a taking.In establishing that point, the legislature must consider the entirefield of laws restricting property rights in lands, foreign legislativeprecedents, and other circumstances. In any way, we find that an uncompensated exclusion of private use for more than ten years isan excessive restriction on the constitutional right to property thatcannot be justified by any accomplishment of public interest.

The statute here is unconstitutional because it overly infringes upon the landowners' property right in violation of the principle ofproportionality. The albeit, important public interest aimed at by thestatute cannot justify the uncompensated ban on the preexisting useor the complete exclusion of private use. In revising the provisionconsistently with the principle of proportionality, the legislature must set up a compensatory provision that diffuses the cruel burden on thelandowners. In doing so, the legislature can choose from monetarycompensation, release from the urban planning designation, and requestfor a public purchase or public taking.

In this case, immediate invalidation of the provision will eliminatethe statutory authorization for the important national task of urbanplanning, making its administration impossible. We therefore holdthe provision temporarily valid until it is revised by the legislatureby December 31, 2000.

Justice Lee Young-mo dissented, arguing that the urban planning site designation merely executes a social limit inherent in one's prop-erty right in land, and the harm it causes the owner outweighs con-tributions to the public interest. Justice Cho Seung-hyung advocatedfor simple invalidation.