Comparative Analysis of Exceptions to Planning in the U.S. and South Korea

Abstract

Urban planning involves determining in advance the developmental requirements for a specific geographic area. In this regard, the functions of Korea's urban management plan—especially, the special purpose area—and the U.S. zoning are comparable. However, it is debatable whether the special purpose area and zoning can be comprehended at the same—or comparable—level. Additionally, their mutual differences can be studied from the marginal aspect of both institutions, that is, the admissibility of exceptions to the existing plan and the means and procedures for allowing exceptions. In short, zoning in the U.S. can permit exceptions to application through variance or special permit for individual cases even if the contents of zoning itself are not modified. However, In Korea, it is impossible to grant these exceptions through individual administrative procedure without the procedure for modification and change in the urban management plan itself. Examining the contexts in which each system is situated in both countries explains this difference. As a “safety valve” to ensure the legitimacy of zoning, which is an intervention and limitation on property rights in the U.S., exceptional measures, such as variance and special permit, are necessary. From this protective viewpoint, it is also possible to infer the reason for the generous practice of the grant of variance. Additionally, the essence of variance or special permit must be comprehended through a comprehensive approach to the U.S. context in terms of the distribution of planning authority, standards for judicial review, and participatory factors. In this regard, it can be inferred that the need for exceptional measures similar to those in the U.S. was relatively less in Korea, where the protection of property rights is relatively weaker and urban management plans are acknowledged to have significant binding power.