美國 都市計劃法制에 관한 硏究 : Zoning과 Master Plan을 中心으로

미국의 용도지역제와 종합계획을 중심으로 도시계획 법제를 연구했다.

(1) In the highly urbanized contemporary industrial society, a diversity of politics, including formation, maintenance, preservation, development, adjustment in the urban area, and the relevant law systems are developed, which is commonly noted by any country. Though this phenomenon has accompanied with the expansion of the economic growth in today's cities, this process for them is far from dependent upon its own capital growth by virtue of the market theory in practical. In addition, with a certain aim suggested in terms of the public and society in the contents and usage of the urban space formed thereby, the political and legal intervention is indispensable in its conscious control.

This is true of cities in our country. In particular, the brief and marked economic growth in Korea has led to a lot of problems in the relevant law, and in practical, different from the advanced countries whose industrialization and urbanization have been done in a long time. Hereby, in this study, the United States is sam pled because of the necessity of studying and examining the urban planning law in the advanced countries.

(2) The system of the urban planning law in the United States includes the master plan within the constitution of the State and the statute from the top of the Federal Constitution, and the land use regulation system (zoning, subdivision control, official mapping, etc.), which is crossed in the vertical direction, and the expanding structure of zoning, subdivision control, official mapping centered on master plan in the horizontal direction. That is, the master plan as in the urban planning of the United States, has the characteristic of the constitution and provides guidelines to all land use regulations by pointing to the direction.

This systematic urban planning law began to be formed after the end of 1960s, combined with the contemporary urban planning in the United States, slow and steady. In the early 20C, when the history of the urban planning nearly emerged in the United States, zoning, a kind of regulation system made the core of the urban planning. Especially, even as the model Act, the Standard State Zoning Enabling Act concerning zoning enhanced by the Federal Government in 1924 is marked 「……shall be made in accordance with a comprehensive plan」in its relation with master plan.

However, in 1928,‘master plan’took the place of comprehensive plan in the Standard Planning Enabling Act, and regulated the decision of master plan as in itself, which brought about the long argument centered around the interpretation of consistency requirement in the relation between zoning and master plan. In addition, it is common that zoning ordinance existed in the practical modern urban planning of the United States instead of master plan. So to speak, the modern urban planning features the prominence of master plan in zoning.

In this regard, the Court separated zoning from master plan, and decided the satisfaction of consistency requirement depending upon whether its ordinance was comprehensive. On the other hand, in 1926, the United States Supreme Court declared zoning to be constitutional at Village of Euclid v. Ambler Realty Co., and it was introduced rapidly throughout the country. Then, zoning was generally formed cumulative zoning, disputed at the Euclid judgment, which specializes in protecting the owners housing area and the pre-confirmative regulations. This Euclidian Zoning became the model in the United States later then.

However, at the end of 1960s, meantime, the rapid development in the suburbs caused the phenomenon of sprawl, and scarcity of public facilities, diminished open space, the environmental preservation in nature and history, etc. were elevated to surface. So, the recent pursuit of growth became followed by the necessity of growth management. With this regard, various methods such as cluster zoning, PUD, floating zoning, incentive zoning, TDR, etc. to which flexibility was added out of the zoning descriptive of rigidity in the type of zoning. This Non-Euclidian Zoning requ ired the master plan for the comprehensive management of the urban land use.

In addition, as the growth management policy started in order after the late 1970s, the basis got to derive from master plan. Hereby, I'll say that master plan cemented the position as the constitution of land use regulations. That is, one major streamline is that the present urban planning in the United States seeks the consistency based on master plan. (3) So far, we have covered the relevant system and cases along with the whole streamline centered on zoning and master plan within the great frame of the urban planning law in the United States.

From this examination, the features of the urban planning law in this country can be summarized as follows; 1) the existence of strong master plan independent of the regulations and businesses, 2) the existence of detailed and strong regulations focused on zoning 3) the preparation of various methods beyond uniformity in the pre-confirmative regulations; zoning, and its basis is found in master plan 4) the frequent use of discretion.

As for the measure, in the sense of procedure, the system given centered on the public hearing is made up to work 5) the legislature in charge of deciding the planning and the regulations, the executive in which the planning and the regulation, the executive in which the planning and the regulations are put into practice, and the judicature section which sets up the specific standards of the urban planning by virtue of judgment, where respective independent of the three branches of government produces the principle of mutual control and balance.

(4) The deregulation and the growth management which the United States shows us cannot be inconsistency in its glanced picture, but merely two complementary sides in a system; the fair procedure is required in a part of the strict regulations, and the various methods whose regulations are changeable are prep