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  • Interpretation
  • No.336【Under Translation】
  • Date
  • 1994/02/04
  • Issue
    • Does Article 50 of the Urban Planning Act, which does not require the government to procure land reserved for public facilities within a limited period, violate the Constitution?
  • Holding
    •        The Amendment to Article 15 of the Urban Planning Act which was amended and promulgated on July 15, 1988, does not require the government to take land reserved for public facilities within a limited period. It is to maintain the integrity of urban planning, and is necessary for enhancing the public interest, and does not violate the Constitution. As for protection of property owners* interest, whether the competent authority should review the statutes and regulations concerned and make the necessary amendments is a matter of legislation.
  • Reasoning
    •        To ensure the planned growth envisaged in urban planning, the competent authority sets aside land for public facilities within an urban planning area according to the Urban Planning Act to be the backbone of city development. Before such land is set aside, it is called land reserved for public facilities. Articles 6 and 51 and other relevant stipulations prevent property users from using property as an obstruction of a reserved purpose.   Planning by estimation of the next 25 years of city development, urban planning has its integrity, and this is obvious in the stipulation of Article 5. For this reason, land reserved for public facilities as mentioned above, when compared to urban planning as a whole, is a relation of a part to a whole. Unless there is a change in an urban plan, it is impossible to require that such land be reserved for public facilities within a limited period, and, without acquiring the land before the expiration of that period, this will cause abolition of reservation, and alter the whole urban plan.   For a change in an urban plan, Articles 26 to 29 stipulate a specific procedure, which is not replaceable by a "preset plan within a limited period." This is different from Article 214 of Land Act, which stipulates that not taking the land before the expiration of the reserved period will cause abolition of the reservation. There is also no relation here of specific law and general law. Thus, Article 50 of the Act, which was amended and promulgated on July 15, 1988, does not require the government to take land reserved for public facilities within a limited period. This is to maintain the integrity of urban planning, and urban planning is necessary for enhancing public interest, and does not violate Articles 23 and 143 of the Constitution.   Since urban planning is developed by estimation of the next 25 years of city development, it should be reviewed comprehensively at least every 5 years according to Article 26 of the Urban Planning Act. When a plan to reserve land for public facilities, having been reviewed comprehensively, is considered unnecessary to change, the competent authority should acquire said land quickly, to avoid reserving it for too long. If it is not acquired (not limited to expropriation), the property owner not only can not receive the payment in time to conduct other business, but also can not abolish the land use control for the integrity of the urban plan and this will cause diminution of the property value. The interest burden on the property owner will also increase as time passes. Though Article 49 to Article 50-1 provide the compensatory stipulation of overcompensation, temporary building permit and tax exemption, they do not differentiate the period of reservation, and provide different compensation for those who suffer specific injury and make special sacrifices. Thus, for the protection of the property owners* interest, whether the competent authority should review the statutes and regulations concerned and make the necessary amendments is a matter of legislation. 
      
    • *Translated Jer-Shenq Shieh.
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