🔴【2018】국토의 계획 및 이용에 관한 법률 관련 질의회신 사례집(경기도)

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제1장 도시‧군기본계획 ················································································· 3
◦ CASE 1 : 시가화예정용지의 물량 조정 관련 ···················································· 3
◦ CASE 2 : 시가화용지의 물량 조정 관련 ···························································· 3
◦ CASE 3 : 시가화용지의 물량 조정 관련 ···························································· 4
◦ CASE 4 : 지구단위계획 물량 조정 관련 ···························································· 4
◦ CASE 5 : 시가화예정용지의 주용도 관련 ························································ 5
◦ CASE 6 : 공공기관 지방이전계획에 따른 도시‧군기본계획 변경 관련 ········ 5
◦ CASE 7 : 도시‧군기본계획 수립지침상 인구배분계획 관련 ···························· 6
◦ CASE 8 : 인구배분 및 시가화예정용지 관련 ···················································· 7
◦ CASE 9 : 도시‧군기본계획의 계획인구 부합 여부 관련 1 ······························ 8
◦ CASE 10 : 도시‧군기본계획의 계획인구 부합 여부 관련 2 ··························· 9
◦ CASE 11 : 도시‧군기본계획의 사업계획 반영 여부 판단 ································ 9
◦ CASE 12 : 민간공원조성에 따른 도시‧군기본계획 변경 ······························· 10
◦ CASE 13 : 도시공원 실효에 따른 도시‧군기본계획 변경 ····························· 11
◦ CASE 14 : 실효된 근린공원에서 지구단위계획 수립시 도시‧군기본계획 변경 · 11
◦ CASE 15 : 건축물이 없는 부지에 둘이상의 용도지역 조정시 도시‧군기본계획 변경· 12
◦ CASE 16 : 도시‧군기본계획 일부변경시 재해취약성평가 대상 여부 ·········· 12
◦ CASE 17 : 도시‧군기본계획 수립시 토지적성평가 제외 대상 관련 ············ 13

 

제2장 도시‧군관리계획 ·············································································· 19
1. 도시‧군관리계획 입안의 제안 ······························································ 19
◦ CASE 1 : 도시‧군계획시설 변경 결정시 주민제안 동의 요건 ······················ 19
◦ CASE 2 : 지구단위계획구역에서의 도시개발구역 지정 제안시 동의 요건 · 20
◦ CASE 3 : 주택건설사업지구에서 지구단위계획 결정 의제 및 소유자 동의 요건 · 21
◦ CASE 4 : 다른 법률에 따른 지구단위계획 결정 의제시 동의 요건 등 ····· 22
◦ CASE 5 : 민간투자법에 따른 지구단위계획 결정 의제시 동의 요건 등 ··· 23
◦ CASE 6 : 지구단위계획구역 내 도시‧군계획시설 입안 제안시 동의 요건 ·· 29

◦ CASE 7 : 준공된 택지개발사업지구의 지구단위계획 변경 입안 제안시 동의 요건· 29
◦ CASE 8 : 지구단위계획 변경시 토지소유자 동의 요건 ······························· 30
◦ CASE 9 : 지구단위계획구역 변경시 토지소유자 동의 요건 ······················· 31
2. 도시‧군관리계획 입안을 위한 기초조사 등 ··············································· 33
◦ CASE 1 : 적법훼손지 적용등과 관련 ································································ 33
◦ CASE 2 : 토지적성평가 보전대상지역 판정기준 완화 관련 ························· 34
◦ CASE 3 : 토지적성평가 경과조치 적용 기준 ·················································· 35
3. 도시‧군관리계획의 결정 ·················································································· 36
◦ CASE 1 : 도시‧군관리계획 의제 시 기초조사 및 결정 신청 여부 ·············· 36
◦ CASE 2 : 도시‧군관리계획 의제 시 절차 이행 ············································· 37
◦ CASE 3 : 도시‧군관리계획 수립시 관계기관 협의 1 ····································· 38
◦ CASE 4 : 도시‧군관리계획 수립시 관계기관 협의 2 ····································· 38
◦ CASE 5 : 도시‧군관리계획 결정(변경)시 협의 ················································· 39
◦ CASE 6 : 행정 절차 이행시 입안내용 변경에 따른 절차 ····························· 40
◦ CASE 7 : 지구단위계획을 용도지역간 변경을 포함하여 수립시 행정절차 · 41
◦ CASE 8 : 도시‧군관리계획 입안시 주민의견 청취 ········································· 42
◦ CASE 9 : 지구단위계획 구역내 기 결정된 도시‧군계획시설의 폐지 결정권한 · 50
◦ CASE 10 : 경기도 사무위임 조례 중 용도지역 변경 권한 1 ···················· 55
◦ CASE 11 : 경기도 사무위임 조례 중 용도지역 변경 권한 2 ···················· 55
◦ CASE 12 : 경기도 사무위임 조례 중 용도지역 변경 권한 3 ······················ 56
◦ CASE 13 : 경기도 사무위임 조례 중 용도지역 변경 권한 4 ······················ 57
◦ CASE 14 : 지구단위계획 경미한 변경 사항에 가구수 변경 포함 가능 여부 · 57
4. 도시계획시설 ························································································ 73
◦ CASE 1 : 완충녹지의 도시‧군관리계획 결정 및 무상귀속 여부 ·················· 73
◦ CASE 2 : 완충녹지의 설치 예외 ······································································ 74
◦ CASE 3 : 액화석유가스저장소의 도시계획시설(가스공급설비) 해당 여부 · 75
◦ CASE 4 : 대학교내 노유자시설 설치 가능 여부 ·········································· 75
◦ CASE 5 : 체육시설 부지 내 편익시설 설치 범위 관련 ································· 76
◦ CASE 6 : 민간골프장내 숙박시설 설치가능 여부 ·········································· 77
◦ CASE 7 : 사회복지시설(양로시설)의 도시‧군계획시설 입안 제안 여부 ······ 77
◦ CASE 8 : 소하천예정지 도시계획시설(하천) 결정 관련 ································ 78
◦ CASE 9 : 하수도 내 폐기물처리시설 중복 결정 여부 ··································· 79

◦ CASE 10 : 도시‧군계획시설의 변경 결정 대상 ··············································· 79
◦ CASE 11 : 공사완료 공고된 도시‧군계획시설의 입안 제안 및 실시계획 인가 대상 여부 80
◦ CASE 12 : 체육시설 사업계획 승인 취소 전 도시‧군관리계획 변경 여부 · 81
◦ CASE 13 : 도시‧군계획시설의 폐지시 이전 용도지역으로의 환원 절차 ···· 82
◦ CASE 14 : 토지와 건축물을 분리하여 매수결정 할 수 있는지 ················· 83
◦ CASE 15 : 도로 폭 확장에 다른 추가 편입 부지의 매수청구 대상 여부 · 83
◦ CASE 16 : 지목 변경을 사유로 매수통보 철회 가능 여부 ·························· 84
◦ CASE 17 : 매수청구 보상완료 토지의 환매권 적용 여부 ···························· 85
◦ CASE 18 : 도시‧군계획시설 폐지 후 건축물 보상 및 토지환매권 발생 여부 ·· 86
◦ CASE 19 : 도시계획시설 실효기산일 ································································ 93
5. 지구단위계획 ························································································ 106
◦ CASE 1 : 자연녹지지역에 지구단위계획 수립 가능 여부 ··························· 106
◦ CASE 2 : 보전관리지역에 지구단위계획구역 지정 관련 ····························· 107
◦ CASE 3 : 법령에서 위임하지 않은 사항을 조례로 정할 수 있는지 ········· 108
◦ CASE 4 : 하나의 도시계획시설부지에 지구단위계획구역 지정 관련 ······· 109
◦ CASE 5 : 단일 시설을 대상으로 하는 지구단위계획 수립 및 동의 요건 · 110
◦ CASE 6 : 지구단위계획구역을 판단시 하천의 범위에 지천 포함 여부 ··· 112
◦ CASE 7 : 도시‧군계획시설(공원) 부지내 지구단위계획구역 수립 가능 여부 · 113
◦ CASE 8 : 지구단위계획으로 결정한 도시‧군계획시설에 편익시설 설치 관련 · 114
◦ CASE 9 : 주거형 지구단위계획의 도로율 산정시 교통광장 포함 여부 ··· 115
◦ CASE 10 : 주거형 지구단위계획 수립시 공원‧녹지 면적 관련 ················· 116
◦ CASE 11 : 경사도가 있는 지역에서 층수 범위 및 변경 적용의 판단 ····· 117
◦ CASE 12 : 특정형 지구단위계획 수립시 공원 확보 기준 ·························· 118
◦ CASE 13 : 도시지역에서 지구단위계획 수립시 용적률 완화 관련1 ········· 119
◦ CASE 14 : 도시지역에서 지구단위계획 수립시 용적률 완화 관련2 ········· 119
◦ CASE 15 : 녹색건축의 인증을 받은 경우 용적률 등의 완화 가능 여부 · 120
◦ CASE 16 : 녹색건축물 건축으로 용적률 완화를 받은 경우에도 이를 공공시설
등의 제공으로 볼 수 있는지 ························································· 121
◦ CASE 17 : 공공시설 등을 설치‧제공하는 경우 이에 상응하는 가액의 부지 관련· 122
◦ CASE 18 : 지구단위계획 결정이 의제되는 경우 기반시설 기부채납 운영기준 적용 여부· 122
◦ CASE 19 : 지구단위계획의 기반시설 기부채납 관련 1 ······························ 124
◦ CASE 20 : 지구단위계획의 기반시설 기부채납 관련 2 ······························ 125

◦ CASE 21 : 지구단위계획의 기반시설 기부채납 관련 3 ······························ 127
◦ CASE 22 : 준공된 택지개발지구 내 특별계획구역에 대한 지구단위계획 변경 가능여부· 128

 

제3장 개발행위허가 ················································································· 145
◦ CASE 1 : 건축물 용도변경의 개발행위허가 대상 여부 ······························ 145
◦ CASE 2 : 개발행위허가의 추인허가 가능여부 ·············································· 145
◦ CASE 3 : 개발행위허가의 규모산정 방법 및 도시계획위원회 심의 대상 · 146
◦ CASE 4 : 2m 이상 농지의 성토행위를 개발행위허가를 받지 않은 경우 처벌 가능 여부·· 148
◦ CASE 5 : 경사진 농지를 계단식 농지로 조성하는 경우 개발행위허가 대상 여부· 149
◦ CASE 6 : 관계법령에 따른 허가‧인가 등을 받지 아니하고 행하는 토지분할 여부· 160
◦ CASE 7 : 산업단지개발시 기반시설을 제외한 부지조성이 개발행위허가 대상인지· 161
◦ CASE 8 : 공사 중 암석제거를 위해 더 절토한 경우 변경허가 여부 ······· 161
◦ CASE 9 : 단일시설물 규모초과 개발행위허가 변경허가 관련 ··················· 162
◦ CASE 10 : 지목변경의 의미 ············································································· 163
◦ CASE 11 : 조성이 완료된 기존 대지 인정 여부 1 ······································ 164
◦ CASE 12 : 조성이 완료된 기존 대지 인정 여부 2 ······································ 165
◦ CASE 13 : 조성이 완료된 기존 대지 인정 여부 3 ······································ 166
◦ CASE 14 : 경미한 개발행위 해당 여부 ························································· 166
◦ CASE 15 : 개발행위허가 규모초과 심의관련 ················································ 170
◦ CASE 16 : 개발행위 규모의 제한 관련 ························································· 171
◦ CASE 17 : 개발행위허가 명의변경 및 구거에서 개발행위 관련 ··············· 172
◦ CASE 18 : 개발행위허가 신청 후 토지사용동의를 철회한 경우 효력 여부 · 173
◦ CASE 19 : 개발행위허가를 위해 제출하는 토지사용승낙서 관련 ············· 174
◦ CASE 20 : 개발행위허가 명의변경 관련 ························································ 174
◦ CASE 21 : 도시·군계획조례에 건축법에 따른 도로 지정·공고 규정 관련 · 185
◦ CASE 22 : 개발행위허가운영지침에서 마을안길의 구체적인 개념 ··········· 193
◦ CASE 23 : 진입도로 폭 확보 관련 ································································· 194
◦ CASE 24 : 공사 중인 시도를 진입도로로 개발행위허가 가능 여부 ········· 195
◦ CASE 25 : 공작물 설치 시 도로 확보 기준 관련 ········································ 196
◦ CASE 26 : 개발행위허가 변경시 개정된 진입도로 폭 기준 적용 여부 ··· 197
◦ CASE 27 : 기존 도로 및 배수로 등의 부지소유자 동의 관련 ·················· 198
◦ CASE 28 : 경사도를 도시계획위원회 자문을 거쳐 완화 가능 여부 ········· 199

◦ CASE 29 : 성장관리방안 수립 관련 ······························································· 200
◦ CASE 30 : 도시계획위원회 심의를 거쳐 건축물 용도변경 가능 여부 ····· 201
◦ CASE 31 : 용도변경금지조건이 부여된 건축물의 용도변경 관련 ············· 205
◦ CASE 32 : 건축물 집단화 유도지역 관련 ······················································ 206
◦ CASE 33 : 지구단위계획구역에서 도로 폭 기준 완화 심의 가능 여부 ··· 207
◦ CASE 34 : 「주택법」에 따른 개발행위허가 의제 및 도시계획위원회 심의 관련 · 208
◦ CASE 35 : 개발행위에 대한 도시계획위원회 심의 관련 1 ························ 208
◦ CASE 36 : 개발행위에 대한 도시계획위원회 심의 관련 2 ························ 209
◦ CASE 37 : 개발행위허가가 의제처리된 후 주된 인허가 취소시 토지원상회복 여부· 222
◦ CASE 38 : 개발행위허가시 산지전용허가를 의제한 경우 효력발생 시점 등 · 223
◦ CASE 39 : 관광농원 조성 시 도로 폭 및 산지전용허가 의제된 개발행위 준공 · 224
◦ CASE 40 : 개발행위 준공검사 관련 ······························································· 230
◦ CASE 41 : 개발행위 준공 관련 ······································································· 231
◦ CASE 42 : 개발행위허가 제한 관련 ······························································· 234
◦ CASE 43 : 도시·군계획시설 부지에 가설건축물 건축 관련 1 ··················· 234
◦ CASE 44 : 도시·군계획시설 부지에 가설건축물 건축 관련 2 ··················· 236

 

제4장 공공시설 등의 귀속 ······································································ 239
◦ CASE 1 : 도시계획시설사업에 편입된 국유지의 무상귀속 관련 ··············· 239
◦ CASE 2 : 공공시설로 이용되고 있지 아니한 공공용재산의 무상귀속(양도) 관련 1 · 239
◦ CASE 3 : 공공시설로 이용되고 있지 아니한 공공용재산의 무상귀속(양도) 관련 2 · 240
◦ CASE 4 : 무상귀속시 점용 및 사용료 면제 관련 ········································ 241
◦ CASE 5 : 사권이 설정된 공공시설의 무상귀속 관련 ·································· 242
◦ CASE 6 : 폐철도의 무상귀속 대상 여부 ························································ 242

 

제5장 건축물의 건축제한 등 ·································································· 255
◦ CASE 1 : 부속시설의 건축제한 ····································································· 255
◦ CASE 2 : 국토계획법 시행령 개정(네거티브 방식 전환) 시행일 관련 ····· 256
◦ CASE 3 : 도시공원특례사업의 건축제한 및 공원확보 관련 ······················· 257
◦ CASE 4 : 폐기물 임시보관장소 적합 여부 관련 질의 ································ 258
◦ CASE 5 : 복합 건축물에 대한 층수 적용 관련 ············································ 258
◦ CASE 6 : 바닥면적에 부설주차장의 면적 포함 여부 ·································· 263

◦ CASE 7 : 건축물의 건축이 수반되지 아니하는 경우 용도지역 행위제한 위반 ·· 264
◦ CASE 8 : 위락시설의 지형지물에 따른 차단 관련1 ···································· 271
◦ CASE 9 : 위락시설의 지형지물에 따른 차단 관련2 ···································· 271
◦ CASE 10 : 위락시설의 지형지물에 따른 차단 관련3 ·································· 272
◦ CASE 11 : 단독주택 범위의 조례 제정 관련 ················································ 273
◦ CASE 12 : 무단 용도변경 건축물 관련 ························································· 287
◦ CASE 13 : 보전관리지역내 특수학교 입지 관련 ·········································· 287
◦ CASE 14 : 생산관리지역내 공장등록관련 관련 ············································ 288
◦ CASE 15 : 계획관리지역내 건축제한 기준 해석 관련 ································ 293
◦ CASE 16 : 계획관리지역 내 자원순환관련시설의 건축제한 관련 ············· 293
◦ CASE 17 : 계획관리지역 내 자연보전권역 및 특별대책지역의 공장 관련 ·· 294
◦ CASE 18 : 계획관리지역 내 공익사업에 편입된 공장에 대한 이전 관련 1 · 295
◦ CASE 19 : 계획관리지역 내 공익사업에 편입된 공장에 대한 이전 관련 2 · 296
◦ CASE 20 : 준주거지역에서의 용적률 완화 관련 ·········································· 319
◦ CASE 21 : 생산관리지역 내 건폐율 적용 관련 ············································ 320

 

제6장 기존건축물 특례 ··········································································· 327
◦ CASE 1 : 기존 공장에 특례 중 건폐율 관련 ················································ 327
◦ CASE 2 : 기존 공장의 해당 여부 ··································································· 328
◦ CASE 3 : 기존 공장의 대기배출시설 증설관련 ············································ 335
◦ CASE 4 : 기존 건축물에 대한 특례 관련 1 ·················································· 341
◦ CASE 5 : 기존 건축물에 대한 특례 관련 2 ·················································· 342
◦ CASE 6 : 기존 건축물에 대한 특례 적용시 건폐율 산정 관련 ··············· 342
◦ CASE 7 : 기존 건축물에 대한 특례 관련 ···················································· 343
◦ CASE 8 : 기존 업종보다 오염배출 수준이 같다는 의미 ···························· 344

 

제7장 도시‧군계획시설사업의 시행 ······················································· 363
◦ CASE 1 : 도시‧군계획시설사업의 공동사업시행자 지정 관련 ···················· 363
◦ CASE 2 : 도시‧군계획시설사업의 위‧수탁 가능 여부 ·································· 363
◦ CASE 3 : 편입토지의 소유권자 등 변경시 실시계획변경인가 대상 여부 364
◦ CASE 4 : 실시계획인가 시 관련 인허가 의제협의 관련 ···························· 380
◦ CASE 5 : 도시·군계획시설 관련 건축물 사용승인 가능여부 ······················ 380

 

제8장 기타 ································································································· 383

 

제9장 대법원 판례 ··················································································· 397
◦ CASE 1 : 도시계획시설결정에 이해관계가 있는 주민에게 법규상 또는 조리상의 신청권이 있는지 여부 및 신청에 대한 거부행위가 행정처분에 해당하는지 여부 ····· 397
◦ CASE 2 : 도시관리계획 입안제안 반려 처분이 행정처분에 해당하는지 여부 및 일반의 사용에 제공하는 사설봉안시설의 의미 등·· 398
◦ CASE 3 : 도시관리계획 주민제안 입안 결정에 대한 행정주체의 자유의 한계 ·· 400
◦ CASE 4 : 도시관리계획안의 내용을 주민에게 공고‧열람하도록 한 취지 등 · 401
◦ CASE 5 : 도시계획 의제시 절차 이행 관련 ·················································· 402
◦ CASE 6 : 인‧허가 의제 규정을 둔 경우 의제 받은 법률의 규정 적용 관련 ·· 403
◦ CASE 7 : 지형도면 자체를 관보‧공보에 수록하지 않은 경우 적법 여부 ·· 404
◦ CASE 8 : 지구단위계획의 건축물 용도제한의 범위 관련 ··························· 405
◦ CASE 9 : 지구단위계획에 적합하지 않은 경우 건축허가 거부 여부 등 · 407
◦ CASE 10 : 개발행위허가 및 개발행위허가가 수반하는 건축허가가 행정청의 재량판단의 영역인지 여부 등 ······ 408
◦ CASE 11 : 용도지역 안에서의 건축허가가 행정청의 재량판단의 영역인지 여부 및 재량권의 일탈‧남용 여부를 심사하는 방법 등 409
◦ CASE 12 : 개발행위허가가 의제되는 건축허가신청이 개발행위허가기준에 부합하지 아니하는 경우 거부 여부 등 · 411
◦ CASE 13 : 개발행위허가가 의제되는 건축신고가 개발행위허가기준에 부합 하지 아니하는 경우 거부 여부 등 ··············· 412
◦ CASE 14 : 경작을 위한 토지의 형질변경의 의미 등 ·································· 414
◦ CASE 15 : 공유물분할 판결에도 개발행위허가기준 등을 고려한 거부처분 여부· 415
◦ CASE 16 : 재정비촉진계획이 수립되고 있는 지역에서의 개발행위허가 제한 여부·· 416
◦ CASE 17 : 도시‧주거환경정비 기본계획에 배치될 가능성이 높다고 하여 건축 허가신청 반려 가능 여부 ··················· 417
◦ CASE 18 : 무상귀속 대상인 종래의 공공시설에 해당 여부 및 해당 시설에 대한 증명 책임의 소재 ··········· 418
◦ CASE 19 : 공공시설을 설치하여 점유‧사용하고 있었던 경우 무상귀속 대상 여부·· 419
◦ CASE 20 : 간선도로로부터 기반시설부담구역까지의 진입도로의 의미 및 하천이 부담할 기반시설에 포함되는지 여부 등  420
◦ CASE 21 : 입법목적을 달리하는 법률들의 규정에 따른 요건을 갖추어야 하는지 등· 423
◦ CASE 22 : 종합병원의 장례식장이 부속용도 인지 여부 및 국토계획법에 따른 용도제한 적용 여부 등 ··· 424
◦ CASE 23 : 하나의 대지가 녹지지역과 그 밖의 용도지역 등에 걸쳐 있는 경우 행위제 등···· 426
◦ CASE 24 : 자동차정류장의 부대시설로 설치하려는 자동차용 가스충전소가 도시계획시설결정을 득하여야 하는지 ··· 428
◦ CASE 25 : 도시‧군계획시설결정에 하자가 있는 경우, 그 하자가 실시계획인가에 승계되는지 여부 등 ······ 430
◦ CASE 26 : 도시계획시설사업의 시행자 요건의 취지 및 시행자지정이 당연 무효인 경우 실시계획인가 처분도 무효인지 여부 등 432
◦ CASE 27 : 도시계획시설사업 시행자 지정 및 실시계획 인가 의제의 효력의 범위 및 도시계획시설로 설치되는 주차전용건축물의 실시계획 인가 요건 충족 여부 등 ······················ 435
◦ CASE 28 : 유원지의 실시계획 인가 요건 등 ················································ 437
◦ CASE 29 : 도시계획시설사업의 시행자 지정을 위한 동의요건 기준 등 · 438
◦ CASE 30 : 실시계획인가 실효후 그 시행기간을 연장하는 변경인가로 인가 효력을 회복하는지 여부 등 ····· 439
◦ CASE 31 : 이행명령에서 정한 기간을 지나서 이행한 경우 이행강제금 부과 여부·· 441
◦ CASE 32 : 개발행위허가를 받은 자가 사망한 경우 상속인의 승계 여부 등 · 441

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17.12.질의회신사례집(완).pdf

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