Use of lands or buildings within an urban plan in violation of zoning restrictions will be penalized(Taiwan)

Luke Hung

The Supreme Administrative Court rendered the 105-Pan-509 Decision of September 29, 2016 (hereinafter, the “Decision”), holding that use of lands or buildings within an urban plan in violation of zoning requirements will be penalized.

According to the facts underlying this Decision, the Appellee’s building at issue was located in a Type III residential zone. The Appellant’s Commerce Department, which detected that the building was used illegally for fitness service business, imposed a NT$60,000 fine in accordance with Article 79 of the Urban Planning Law and requested that the illegal use be discontinued within three months upon receipt of the Appellant’s notice. The Appellant’s Commerce Department subsequently found, as a result of its inspection, that since Article 34 of the Urban Planning Law as well as the Autonomous Statute for Urban Planning of Taipei City and the Autonomous Statute for Land Zoning Control of Taipei City were violated, the original disposition was rendered to impose a NT$100,000 fine on the Appellee and demand that the illegal use be discontinued within one month. Dissatisfied, the Appellee brought administrative action pursuant to the required procedure. The original trial court set aside the original disposition, and the Appellant filed this appeal out of dissatisfaction.

According to the Decision, the lands within an urban plan may be delineated for residential, commercial or industrial use and may be further delineated, controlled and restricted, depending on actual needs. In this case, the lands or buildings within the urban plan for Taipei City were used in violation of the zoning restrictions under the Autonomous Statute for Autonomous Zoning Control. Therefore, the competent authority could penalize in accordance with Article 79-1 of the Urban Planning Law. Since the original disposition relied on Article 79, Paragraph 1 of the Urban Planning Law as the basis of penalty, Article 4 of the Administrative Penalty Law was certainly not violated.

It was further pointed out in the Decision that Article 8 of the Autonomous Statute for Land Zoning Control was legislated by way of positive listing. “Massage business” is not a line of business that is positively listed among the lines of business that may be operated in Type III residential zones. However, permission or rejection under laws and regulations should be considered based on “statutory criteria.” Therefore, the original decision, which held that since the existing autonomous control statute did not specifically include massage in the fitness service business, which was prohibited, there was no control effect, was certainly flawed for erroneous application of laws and regulations. Therefore, the original decision was reversed and remanded.