Can You Sue Over a Local Ordinance in Japan? The "Concreteness" Test for Challenging Municipal Rules

Local ordinances (jōrei - 条例) are a cornerstone of local governance in Japan, enacted by prefectural and municipal assemblies to regulate a wide array of activities and address local needs. These ordinances can have significant impacts on the rights and obligations of individuals and businesses operating within their jurisdictions. A crucial question then arises: if a party believes a local ordinance is unlawful or unconstitutional, can they directly challenge the ordinance itself in court through an administrative revocation suit (torikeshi soshō - 取消訴訟)? Or must they wait until a specific administrative action is taken against them pursuant to that ordinance? The answer largely depends on the "concreteness" (gutaisei - 具体性) of the ordinance's legal effect, a key aspect of the overarching requirement of shobunsei (処分性 – dispositivity or actionability) for judicial review.

The General Rule: Ordinances as Abstract Norms Typically Lack Shobunsei

As a general principle of Japanese administrative law, ordinances, much like national laws or cabinet orders, are considered to be general and abstract norms. They are designed to apply to an unspecified number of people or situations and usually require further administrative acts by government agencies to implement them with respect to specific individuals or particular cases.

Because of this inherently abstract nature, an ordinance itself is generally not considered an "administrative disposition" (gyōsei shobun - 行政処分) that can be the direct target of a revocation suit under the Administrative Case Litigation Act (ACLA). The ACLA primarily provides for the review of specific administrative acts that directly and concretely affect a party's legal rights or duties.

The usual pathway for challenging the legality or application of an ordinance is therefore an incidental review. This means that when a specific administrative act taken based on an ordinance (e.g., a permit denial, an order to cease an activity, a tax assessment, or a demand for payment) is challenged in a revocation suit, the court, in the course of reviewing the legality of that specific administrative act, can (and often must) examine the legality of the underlying ordinance provision upon which the act was founded. If the ordinance provision is found to be unconstitutional or to violate higher laws (such as national statutes), then the administrative act based upon it will typically be deemed unlawful.

The Exception: When Can an Ordinance Itself Be Treated as a "Disposition"?

Despite this general rule, the Supreme Court of Japan has recognized a narrow exception. An ordinance itself can be deemed to possess shobunsei and thus be directly challengeable in a revocation suit if it meets a stringent test: the ordinance, immediately upon its enactment or coming into force, must directly, specifically, and conclusively determine the rights and obligations of particular individuals or restrict the use of specific properties, without requiring any further implementing administrative act by an agency to bring about that legal effect.

The classic examples where ordinances (or administrative acts very similar in nature, like certain types of urban planning decisions) have been found to satisfy this exceptional standard often involve specific zoning designations. For instance, an ordinance that designates a precisely defined geographical area as a "Category 1 Exclusive Low-Rise Residential Zone" directly and immediately alters the land use rights of all identifiable property owners within that demarcated zone. No further administrative act is needed to apply those zoning restrictions to the affected properties; the ordinance itself creates the direct legal constraint.

The Yasu Town Facility Development Burden Charge Ordinance Case (Supreme Court, November 26, 2009)

The Supreme Court (Second Petty Bench) judgment of November 26, 2009 (Minshū Vol. 63, No. 9, p. 2271) provides a clear illustration of how this "concreteness" test is applied to ordinances that impose financial burdens.

Facts of the Case:
The case concerned an ordinance enacted by the former town of Yasu (野洲町 – now Yasu City) in Shiga Prefecture, titled the "Ordinance Concerning Guidance on Residential Land Development and Facility Development Burden Charges" (宅地開発等指導要綱及び施設整備負担金に関する条例 - Takuchi Kaihatsu tō Shidō Yōkō oyobi Shisetsu Seibi Futankin ni kansuru Jōrei). This ordinance stipulated that developers undertaking residential land development projects exceeding a certain scale within the town were required to pay a "facility development burden charge" (shisetsu seibi futankin - 施設整備負担金) of a specified amount per newly created housing unit. These charges were intended to contribute to the costs of public facilities (such as schools, roads, parks, water supply, and sewage systems) that would become necessary or face increased demand due to the new development. Compliance with the ordinance, including the payment of this burden charge (or an agreement to pay it), was effectively made a precondition for obtaining development permission from the town.

A developer who was required to pay such a charge under this ordinance initiated legal action. While the primary claims that eventually reached the Supreme Court on other grounds related to a state redress claim for the return of charges already paid (based on the alleged unconstitutionality and illegality of the ordinance itself), the Supreme Court took the opportunity in its judgment to specifically address the question of whether the ordinance imposing the burden charge, or its relevant provisions, possessed shobunsei for the purpose of a direct revocation suit.

The Supreme Court's Decision on the Shobunsei of the Burden Charge Ordinance:
The Supreme Court reaffirmed its established principle: an ordinance is generally not a "disposition" subject to a revocation suit unless it directly and specifically determines the rights and duties of particular individuals without requiring any further implementing administrative act by the agency.

Applying this principle to the Yasu Town ordinance, the Supreme Court concluded that the provisions imposing the facility development burden charge did not meet this exceptional test for direct shobunsei. The Court's reasoning was as follows:

1. General and Abstract Nature of the Ordinance: The ordinance laid down general criteria for when the burden charge would be applicable (e.g., based on the scale of the development project) and how it would be calculated (e.g., a fixed amount per housing unit). It did not, by its mere existence upon enactment, automatically impose an immediate and specific payment obligation on any particular developer or for any specific project.
2. Requirement of a Subsequent, Specific Administrative Act: The actual legal obligation for a particular developer to pay the charge, and the determination of the specific amount owed for their project, would only arise when that developer applied for development permission for a specific parcel of land. The town authorities would then, through a separate and subsequent administrative act, apply the ordinance's general provisions to that specific project and impose the charge on that developer. This subsequent administrative act could take various forms, such as:
   • Issuing a formal notice of assessment of the burden charge.
   • Making the payment of the charge (or an agreement to pay it) an explicit condition for granting the development permit.
   • Entering into a specific agreement with the developer regarding the amount and payment of the charge, based on the ordinance's framework.
3. Ordinance as a General Rule, Not a Specific Application: Therefore, the Supreme Court characterized the ordinance itself as a general rule setting the framework for the imposition of burden charges. The concrete legal impact on a developer's rights and financial obligations occurred only through the specific application of this general rule by the town in the context of a particular development project via a subsequent administrative decision.
4. Proper Target for Revocation Suit: Consequently, a developer wishing to challenge the imposition of the burden charge through a revocation suit should target the specific administrative act by which the town demanded the payment from them or made the payment a condition of their permit, not the underlying ordinance itself.

Distinguishing from Directly Restrictive Ordinances like Specific Zoning:
The Supreme Court's reasoning in the Yasu Town case implicitly, and its broader jurisprudence explicitly, distinguishes this type of burden charge ordinance from those ordinances that do possess shobunsei because of their direct and immediate self-executing effect on specific rights.

As mentioned earlier, an ordinance that, for example, designates a precisely defined geographical area for a specific zoning category (e.g., "Category 1 Exclusive Low-Rise Residential Zone," "Commercial Zone") has been held by the Supreme Court to be a reviewable disposition. This is because such a zoning designation, immediately upon its enactment and public notification, directly alters and restricts the land use rights of all identifiable property owners within that specific zone. No further administrative act is needed to apply those land use restrictions to individual properties within the designated area; the ordinance itself creates the direct legal constraint on property rights.

The Yasu Town burden charge ordinance, in contrast, did not, by its mere existence, automatically impose a specific financial liability on all potential developers or all developable land within the town. The liability was contingent upon a future, voluntary act by a developer (applying for development permission) and a subsequent, specific administrative decision by the town applying the ordinance's general formula to that particular project.

Alternative Avenues for Challenging the Legality of an Ordinance

It is crucial to understand that a finding that an ordinance itself lacks shobunsei for the purpose of a direct revocation suit does not mean that the ordinance is immune from judicial scrutiny. Its legality (e.g., its constitutionality, or its conformity with empowering national laws that delegate authority to municipalities) can still be robustly examined by the courts through several other avenues:

1. Incidental Review in a Suit Challenging a Specific Implementing Act: This is the most common method. When a developer challenges a specific administrative act that is based on the ordinance (e.g., a demand for payment of the burden charge, or the denial of a permit for non-payment), the court, in reviewing the legality of that specific implementing act, can and will examine the legality of the underlying ordinance provision. If the court finds the ordinance provision to be unlawful (e.g., unconstitutional, ultra vires), then the administrative act based upon it will also typically be deemed unlawful.
2. State Redress Lawsuits (Kokka Baishō Soshō - 国家賠償訴訟): If an individual or business suffers damage as a result of the enforcement of an allegedly unlawful ordinance (e.g., by being compelled to pay an illegal charge), they can file a state redress suit against the municipality. In such a suit, the court will necessarily assess whether the municipality acted illegally in causing the damage, and this assessment will include an examination of the substantive legality of the ordinance itself. Indeed, in the Yasu Town case, the lower courts had found the burden charge ordinance to be substantively illegal (unconstitutional and lacking proper legal delegation from national law) and had awarded damages (restitution of the unlawfully collected charges) to the developer under state redress principles. The Supreme Court's ruling on shobunsei was specifically about the direct actionability of the ordinance in a revocation suit, not about the ultimate possibility of recovering damages if the ordinance was found to be substantively flawed in another type of proceeding.
3. Public Law Party Litigation (Kōhōjō no Tōjisha Soshō - 公法上の当事者訴訟): In certain circumstances, it might be possible for an affected party to file a public law "party suit" seeking, for example, a judicial declaration that no obligation to pay a charge under a particular ordinance exists for them, or confirming the illegality of the ordinance as it applies to their specific situation. The availability and scope of this type of lawsuit for challenging ordinances can be complex and depend on the specific nature of the dispute.

Conclusion: The Importance of "Concreteness" for Direct Judicial Review of Ordinances

The question of whether a local ordinance in Japan can be directly challenged in court via an administrative revocation suit hinges on the crucial element of "concreteness" as an integral part of the broader shobunsei requirement. The general and long-standing rule is that ordinances, being abstract and general norms, lack the necessary shobunsei for such direct review. They are typically reviewed incidentally by courts when a specific administrative act taken pursuant to them is challenged.

However, the Supreme Court has carved out a narrow exception: an ordinance itself can be treated as a reviewable "disposition" if, upon its very enactment, it directly, specifically, and conclusively determines the rights and duties of particular individuals or the use of specific properties, without requiring any further implementing administrative act by an agency to bring about that legal effect. Ordinances enacting specific zoning designations often fall into this exceptional category because they immediately impose direct legal restrictions on land use.

The 2009 Supreme Court decision in the Yasu Town facility development burden charge ordinance case reaffirms that general rulemaking ordinances, such as those imposing obligations like development charges based on defined criteria but requiring a subsequent specific application to an individual project, do not meet this stringent test for direct shobunsei. The concrete legal impact on a developer in such cases arises only from the specific administrative act applying the ordinance to their particular project.

This distinction is vital for legal practitioners and businesses operating in Japan, as it dictates the proper procedural pathway for challenging local rules and regulations. While an ordinance itself may not always be directly assailable in a revocation suit, its underlying substantive legality can still be robustly examined and determined by the courts through challenges to its specific enforcement actions or through other forms of litigation, such as state redress claims.