No violation of the right to participate and the right to be heard in the subsequent amendment of a zoning plan

Facts

The city of Chur conducted a participation procedure for the overall revision of urban planning from May 14 to June 14, 2004. As part of this procedure, the General Development Plan (GEP) and the General Development Plan 2005 (new) were available. Private individuals had the opportunity to comment in writing on the overall revision until June 14, 2004. On November 26, 2006, the voting population of the city of Chur approved the total revision of urban planning and passed it for governmental approval.

The GEP includes, among other things, the so-called slow traffic planning (pedestrian and bicycle traffic). To this end, the city established footpaths/walkways, distinguishing between "existing" and "new/planned" paths. The city provided for such a footpath/walkway in the residential area of Loë to realize a new direct and straight pedestrian connection. However, this new pedestrian connection was only included in the GEP after the participation procedure.

The affected landowners X. and Y.Z. were informed of this by the city after the popular vote, namely on April 3, 2007. They then filed a planning complaint with the government, with the implicit request that the corresponding provisions not be approved.

Considerations

The Federal Court had to decide whether the subsequent amendment of the zoning plan without a new participation procedure and without prior information of the affected parties about the plan change constitutes a violation of the right to participate and the right to be heard.

The court concluded that participation in the sense of Art. 4 SPA is an opportunity for influence that must be distinguished from the instruments of direct democracy and legal protection. Participation serves political opinion formation and enables the necessary breadth of interest balancing. The court found that the subsequent inclusion of the disputed footpath section in the GEP is a minor change to the entire development plan and that the waiver of a repetition of the participation procedure is not contrary to federal law.

The court also examined whether the subsequent granting of a remedy against an already decided zoning plan is compatible…