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Land Development Conditions and Development Agreements- A Comparative Study on the Cases and Laws of the Republic of Korea and the United States -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2008, 40(), pp.97-115
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

OH, JUN GEN 1

1경희대학교

Accredited

ABSTRACT

Land Development requires a variety of public facilities - roads, water, parks, schools - to support it. States and local governments expanded developer funded public facility provisions by means of required exactions, dedications and fees and land development conditions. The major legal issue with respect with these conditions is the connection to the land development. The cases and laws of the Republic of Korea and the United States about these land development conditions were compared in this article. It dealt with the cases of the Korean Supreme Court - the Reconstruction of old Apartment Housing Complex in Seoul and the Development of New Collective Housing Area in Yongin and the cases of the United States Supreme Court - Nollan v. California Coastal Commission and Dolan v. City of Tigard. The Results of the analysis were summarized as follows. First, the government agencies of the Republic of Korea and the United States imposed various conditions accompanied by land development permissions. Second, the standards of the legitimacy of these conditions were developed through the decisions of the courts. The Korean Supreme Court used “Proper Connection Doctrine.” The necessity and usefulness of the conditions and mutual consent beforehand were the major contents of this doctrine. According to the decisions of the Supreme Court of the United States land development conditions must seek to promote a legitimate state interest, had to be related to the land development project and must be proportional to the needs or problems which the land development projects were expected to cause. Because both developers and agencies face difficult problems in the land development approval process, the system of “Development Agreement” has been used in the United States. Some specific statutory authorization were established to make clear that the agreements effectuate a public purpose recognized by the state. There had been no legal foundation for the introducing of this system in Korea. But the Korean agencies made actual consent with the developers about the conditions before they gave approvals of the land development projects. The Korean Supreme Court made the confirmity between the contents of the consents and land development conditions as major standard of decision of the legitimacy. This article indicated these problems and discussed the possibility of the introducing the development agreement system.

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