Facts
The L. AG filed a building application for a multi-family house in the D3 district expansion zone of the municipality of Breil/Brigels on July 13, 2012. Several condominium owners of neighboring properties objected to the construction project and cited the violation of the new constitutional provision on secondary residences (Art. 75b Cst.). The municipal council of Breil/Brigels rejected the objection and granted the building owner a building permit on August 21, 2012, subject to conditions and requirements.
The objectors filed a complaint with the Administrative Court of the Canton of Grisons, which dismissed the complaint on November 12, 2012. The objectors then filed a complaint in public law matters and a subsidiary constitutional complaint with the Federal Supreme Court on December 13, 2012.
Considerations
The Federal Supreme Court had to decide whether Art. 75b Cst. is directly applicable to building permits for secondary residences issued after March 11, 2012. The lower court had denied this and argued that the constitutional provision would only apply to building permits issued from January 1, 2013.
However, the Federal Supreme Court came to the conclusion that Art. 75b Cst. had already entered into force on March 11, 2012, and is directly applicable. The constitutional provision contains a precise specification for the secondary residence quota, which is generally accessible to direct application. The ban on building permits under Art. 197 para. 9 cl. 2 Cst. applies until the entry into force of the implementing legislation and is intended to prevent the desired capping of secondary residences at 20% from being negatively prejudiced.
The Federal Supreme Court overturned the contested decisions and refused the building permit. It found that the secondary residence quota in the municipality of Breil/Brigels exceeds 20% and that the…