2012Guhap579 Revocation of Disposition of Cancelling Application for Planning of Private Park Creation

A

Daegu Metropolitan City Mayor

August 17, 2012

September 12, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On March 21, 2011, the defendant's disposition to return the proposal for the creation of a private park (part of the proposal) to the plaintiff shall be revoked.

1. Details of the disposition;

A. On February 2, 1965, in accordance with the former Urban Planning Act, the Minister of Construction and Transportation decided to install urban planning facilities (name B park, and hereinafter referred to as the “instant park”) in one district of C in accordance with the city planning (public notice D). The Plaintiff is the owner of the instant proposal site (hereinafter referred to as the “instant proposal site”), which is the sum of 24,700 square meters, both Daegu-gu E-gu and 8 parcels located in the instant park.

B. On February 10, 2004 with respect to the instant park, there was a decision on the building plan for Daegu Urban Planning Facility (B Park), a park building plan (B Park), and an announcement of topographic drawings (F of Daegu Metropolitan City Public Notice) (hereinafter referred to as the "decision on building plan for a park building plan on February 10, 2004"), pursuant to the former Urban Park Act (wholly amended by Act No. 7476 of March 31, 2005; hereinafter referred to as the "former Urban Park Act"). According to the above park building plan on February 10, 2004, the entire park area was 1,643,749 square meters, and 328,000 square meters of which amount to 19.95% of which amount was 328,000 square meters of the total park area, among the park facilities area, one district among the park facilities area was located in the center of the instant park, and the area was 298,000 square meters of the instant park area was 200 square meters of the end.

C. On March 14, 201, the Plaintiff: (a) filed with the Defendant a proposal to amend the said plan to change the park building plan (hereinafter “instant proposal”); (b) on March 21, 201, the Defendant returned the instant proposal to the Defendant on the following grounds: (c) on March 21, 201, the Plaintiff returned the instant proposal for the following reasons (hereinafter “instant disposition”). (d) on the instant proposal, the Plaintiff returned the instant proposal to the Defendant for the following reasons.

(1) According to the proviso of Article 6(1)5 and Article 6(4) of the former Enforcement Rule of the Urban Park Act (wholly amended by Ordinance of the Ministry of Construction and Transportation No. 488, Dec. 30, 2005; hereinafter referred to as the “former Enforcement Rule of the Urban Park Act”), sports facilities, etc. may be grouped in a certain area (park facility zone) that does not exceed 20% of the area of the urban natural park. The proposed area is outside of park facilities zone, and the ratio of the area of park facility zone to the whole area of the park in comparison with the park in the above 2004 park building plan is adjacent to the legal upper limit (19.95%) so if the proposed area is changed to be included in park facilities zone, the ratio of park facility zone is 21.46%, and the upper limit is exceeded.

(2) Under the J Basic Plan for Park Park, G’s surrounding areas in the instant park are “dine park,” and other areas are set as “urban natural park areas,” and the proposal in the instant case belongs to the urban natural park area, so it cannot be the location of the driving range.

(3) On October 26, 2010, the Plaintiff’s opinion that the instant proposal was not the place of installation of a golf practice range as a result of the advice of the 'Tgu Metropolitan City Urban Park Committee on the draft of the change of park building plan (the withdrawal on December 24, 2010, hereinafter “Initial Proposal”) submitted to the Defendant on October 26, 2010. The content of the instant proposal is not significantly different from the initial proposal.

D. On June 17, 2011, the Plaintiff filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on November 15, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 1, 2, 7, 11, and 17, and the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

A. The defendant cannot refuse the proposal of this case for reasons other than the grounds for restrictions stipulated in relevant Acts and subordinate statutes. The proposal of this case does not constitute grounds for restrictions under Acts and subordinate statutes.

B. Since the two districts are not yet installed in the existing park facilities zone, it is more appropriate to exclude the two districts from the park facilities zone and incorporate the instant proposal site into the park facilities zone and establish a golf practice range, the Defendant’s refusal of the instant proposal without balancing such interests is a discretionary abuse.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

(a) Facts of recognition;

(1) Under the Act on Urban Parks, Greenbelts, Etc. (amended by Act No. 7476 of March 31, 2005, hereinafter referred to as the "Urban Park Act"), the "Urban Natural Park" under the former Urban Park Act is classified into the "Urban Park Act" and the "Urban Natural Park Act". The defendant publicly announced the "J Basic Plan for Park Park" on December 30, 2010 (Seoul Metropolitan City public notice K), and according to the above basic plan for parks and greenbelts, the park of this case, which is an urban natural park, is divided into urban park and urban natural park area, is designated as a river (waterside park) and the remaining park is located.

1,325,535 meters (including the proposal in this case) were set as urban natural park areas. On January 20, 201 in accordance with the above master plan for parks, the Defendant formulated a draft amendment of the urban management plan concerning the park in this case on January 20, 201, and announced the decision on the urban management plan (revision) and topographic map on October 20, 201 through the public announcement of resident inspection on March 20, 201 ( Daegu Metropolitan City L/B, No. 10).

(2) The instant proposal is located in the village along about 400 meters away from the village, and the 3 pages are surrounded by mountain, and the remaining side of the entrance is cut off from the park facilities area in the park planning area in 2004, and it is also cut off by the highway. In order to enter the instant proposal from the MV distance, it is always necessary to pass through the expressway underground passage (the width of 4.5 meters, the height of 4.5 meters, the length of 62 meters, hereinafter referred to as “the underground passage of the above expressway”). From the MV distance, the method of reaching the above expressway underground passage at the NV distance is ① a method of using a village with a width of about 3 meters at the NN entrance, and ② a method of expanding the road in the buffer zone (the width of 5.6 meters to 6 meters) on the left side of the highway is too narrow and it is impossible to expand the width of the above expressway.

(3) After purchasing the instant proposal site on May 7, 2010, the Plaintiff has used it as a tree nursery and dry field until now.

(4) The Plaintiff’s initial proposal was to change the above plan for creating a park in order to install a golf range with a size of 762 square meters in the land of 33,200 square meters, total floor area of 1,94 square meters in the land of 33,00 square meters including the instant proposal site, 1,610 square meters in the field of 33,94 square meters in the field of a park, parking lot of 1,610 square meters in the parking lot, 6,000 square meters in the landscape, and 6,000 square meters in the size of a golf range (16,529 meters in donations). The Defendant consulted with the Urban Park Committee on the above proposal from December 1, 201 to December 8, 2010. According to the former Urban Park Act, if the instant proposal is included in the park facility zone, preferential and similar civil petitions are likely to occur if it exceeds the above standard, and the instant proposal is likely to undermine the residential environment and natural landscape.

(5) Since 1990, the Defendant decided to restrict the installation of a golf driving range in a park on the grounds that the golf driving range is sufficient in Daegu Metropolitan City, and did not accept a request from each landowner in the 16 parks to change the proposed park building plan more than 58 times.

(6) On March 3, 2011, the Defendant made a public announcement of the 'Urban Natural Park Maintenance Plan and the Amendment Plan for Urban Management Planning’ to residents on October 20, 201, and made a public announcement of the decision of urban management planning (amended) and topographical map (Seoul Metropolitan City L) on October 20, 2011 (hereinafter “former 201 Park Maintenance Plan”). According to the above 2011 Park Maintenance Plan, the instant proposal was not reflected, and the instant proposal was created as the 'urban natural park area’ in which it is impossible to install a golf course.

[Ground of recognition] Unsatisfy facts, entry of evidence Nos. 1 to 30, the result of on-site inspection by this court, the purport of the whole pleadings

B. Determination

(1) Judgment on the Plaintiff’s assertion No. 2. A

According to Article 16(3) and (4) of the former Act on Urban Parks, Greenbelts, Etc. (amended by Act No. 11020, Aug. 4, 201; hereinafter referred to as the “former Act on Urban Park and Greenbelts”), a person (private park promoter) who is not the Special Metropolitan City Mayor, Metropolitan City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun (private park promoter) may propose to the Metropolitan City Mayor, etc., who is a person who has the right to develop a park on his/her own cost and responsibility for any urban park for formulating a park building plan. The Metropolitan City Mayor, etc. shall notify whether to expropriate such urban park after consultation with the Urban Park Committee, and if he/she intends to accept the proposal, it shall be reflected in the formulation of the park building plan. Such park building plan is a kind of administrative agency's discretionary act based on the professional and technical judgment. Thus, even if it does not fall under the grounds for restrictions provided for in relevant Acts and subordinate statutes, it may not accept a proposal for park building plan.

(2) Judgment on the Plaintiff’s assertion No. 2.B.

Administrative plans are established as an activity standard to realize certain order at a certain point in the future by integrating and coordinating relevant administrative means to achieve specific administrative objectives, such as the construction, maintenance, improvement, etc. of a city based on professional and technical judgments on administration. The relevant Acts and subordinate statutes only provide abstract administrative goals and procedures, but do not provide for the contents of administrative plans, and thus, administrative agencies have relatively broad freedom in formulating and determining a specific administrative plan. However, the freedom of such formation, which is held by an administrative body, is not unlimited, but also limited to the public interest and private interest between the public interest and private interest as well as the legitimate comparison between the public interest and private interest. Thus, if an administrative body fails to pay the benefits at all in formulating and determining an administrative plan, or omits any matters that should be included in those subject to consideration of the benefits and interest, but lacks legitimacy and objectivity, such administrative plan’s decision is unlawful in balancing (see, e.g., Supreme Court Decision 200Du4164, Nov. 26, 201).

In full view of the following circumstances acknowledged by the aforementioned facts and each of the aforementioned facts, the instant disposition is lawful, and the Plaintiff’s assertion is without merit, inasmuch as it is deemed that the instant disposition was not conducted at all or omitted matters to be included in the subject of consideration of the balancing of interests, or that it lacks legitimacy and objectivity in the balancing of interests.

(A) According to paragraph (4) of the Addenda to the Urban Park and Greenbelts Act (No. 9860 of Dec. 29, 2009) and paragraph (4) of the Addenda to the Enforcement Rule of the same Act, the construction or alteration of park facilities to an urban natural park under the former Urban Park Act shall be governed by the former Urban Park Act, and Articles 6(4) and 8(1)1(c) of the former Enforcement Rule of the Urban Park Act shall exceed 20% of the relevant park’s total site area of park facilities that can be installed within an urban natural park under Article 6(4) and 8(1)1(c) of the former Enforcement Rule of the Urban Park Act. According to the aforementioned park nature plan, 328,00 meters of the entire park area of the instant park shall have already been designated as a park area (facilities area). Thus, if the instant proposal site is additionally designated as a park area, the area exceeding the legal standard for the area of the park facilities area shall be additionally designated as a park facilities area.

(B) According to Article 5(1) of the former Act, a person who has a right to develop a master plan for parks and greenbelts, including a Metropolitan City Mayor, shall establish a master plan to comprehensively indicate the direction of expanding, managing, and using parks and greenbelts for urban areas within his/her jurisdiction on a ten-year basis. According to Article 10(1) of the same Act, an urban park management plan concerning urban parks and greenbelts shall conform to the master plan for parks and greenbelts. The proposed plan in the master plan for parks and greenbelts publicly announced on December 30, 2010 by the Defendant constitutes an urban natural park area, and the urban management plan that establishes a driving range in the instant proposal does not conform to

(C) According to Article 16(4) of the former Act, a Metropolitan City Mayor, etc. who has received a proposal from a private park promoter to formulate a park creation plan shall determine whether to accept the proposal after consultation with the Urban Park Committee. On October 26, 2010, the Plaintiff submitted to the Defendant on the first proposal that the members of the Urban Park Committee are unable to establish a golf practice range. The instant proposal reduces the size of the training hall from 9,900 square meters to 8,200 square meters, reduces the size of the parking lot from 140 to 72 square meters, reduces the size of the parking lot from 140 to 16,529 square meters to 20,807 square meters, and the remainder is the same as the first proposal.

(D) According to Article 38-2(1) of the former National Land Planning and Utilization Act (wholly amended by Act No. 10580, Apr. 12, 2011), an urban natural park area needs to restrict the development of a mountainous district with excellent vegetation in an urban area in order to protect the natural environment and scenery of the city and to provide citizens with a sound leisure and resting space. Construction of a golf practice range, which is a commercial facility, in the instant proposal, in the urban natural park area, does not seem to be in the urban natural park area. On the other hand, preserving the instant proposal in the green area would assist the improvement of the urban landscape, the sound rest and the living environment of the general public.

(E) On May 7, 2010, the Plaintiff purchased the instant proposal, knowing that it does not constitute a park facility zone, and continued to use it as at the time of purchase.

5. Conclusion

If so, the plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Kim Yong-nam

Maximum Judge

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.