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On 26 April 2013, the Justices of the Constitutional Court issued J.Y. Interpretation No. 709 on a case of urban renewal business outlines and plan review. The interpretation is to address the issues in the case involving the Wang family of Wenlin Garden Residences in Taipei and three cases involving Da-Chin Xin-Yi-Fu-Tun, a five-story residential apartment complex in New Taipei City, undergoing reconstruction after the 921 earthquake. After being defeated in the administrative litigation proceedings, the complainants of those four cases all applied for interpretations of the Justices of the Constitutional Court. The Justices of the Constitutional Court combined the cases because the issues requiring interpretation were the same.
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J.Y. Interpretation No. 709 found the articles of the Urban Renewal Act (the "Act") below unconstitutional, for they conflict with due process in administrative proceedings and violate the property rights and the freedom of residence enshrined in the Constitution.
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1.
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Paragraphs 1 and 2, Article 10 of the Act stipulated and announced on 1 November 1998:
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(1)
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Paragraph 1: It prescribes the procedure for the relevant authorities to approve urban renewal business outlines. Though there are public hearings held by the applicant or the developer, no appropriate organizations have been established to review urban renewal business outlines, nor are there procedures to ensure that the interested parties receive relevant information as well as an opportunity to voice their opinions.
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(2)
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Paragraph 2: It stipulates the minimum owners' support that is needed to apply for approval of urban renewal business outlines. The minimum is 10% of the owners of the land or owners of the legal building, or owners of 10% of the total land area or the total floor area of the legal building. However, the minimum is so low that if only a handful of residents of a property apply for such approval, the majority of the residents of the same property will be forced to be subject to the subsequent urban renewal proceedings. Such low minimum defies the democratic spirit of respecting the majority and encouraging wider participation.
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2.
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The first part of Paragraph 3, Article 19 of the Act amended and announced on 29 January 2003:
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The Act stipulates that before the Urban Renewal Committee reviews the plan, the urban renewal business plan should be publicly exhibited to allow anyone or the community to give their opinions during the exhibition. However, it does not demand that the competent authorities individually provide information relevant to the plan to people other than the applicant, such as other owners of the land or other owners of units in the legal building. Neither does it require that the competent authorities hold hearings and call interested parties to attend and make oral arguments, which deprives the competent authorities of the availability of hearing records to decide whether to approve certain outlines and justify the adoption or rejection of an argument. Also, the Act does not compel the competent authorities to serve the approval along with an urban renewal business plan on owners of the land or owners of the units in the legal building, the owners of other legal rights, the authorities restricting registration, or persons with the right to register cautions.
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The relevant authorities are required to complete a review and revision of the above provisions of the Act within one year of the promulgation of J.Y. Interpretation No. 709; if they fail to comply, the provisions will lose their legal effects from that date.
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Since the interpretation does not apply retroactively, until the Act is amended, all relevant authorities are to follow the guidelines preliminarily issued by the Ministry of the Interior, which are as follows:
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1.
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On deciding whether to approve urban renewal business outlines for which applications have been accepted, the Urban Renewal Committee, established by the competent authorities, shall abide by the legislative spirit of J.Y. Interpretation No. 709 and allow relevant parties to attend hearings to voice their opinions.
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2.
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After the date on which J.Y. Interpretation No. 709 was promulgated, it is advisable for those who have not publicly exhibited the urban renewal business plan to call a public hearing according to the procedure under the Administrative Procedure Act.
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3.
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Those cases which, by the Act, held a public exhibition before the date on which J.Y. Interpretation No. 709 was promulgated shall continue according to the current regulations.
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4.
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Information on all cases regarding local governments' approval of urban renewal business outlines, assessment of urban renewal business plans, rights redistribution plan and the like, shall be served on relevant interested parties in respect of the renewed units according to the Administrative Procedure Act.
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