Facts
On 13 July 2012, L. AG submitted a building permit application for a multi-family house in the municipality of Breil/Brigels. Several condominium owners filed an objection to the construction project, as it violated the new constitutional provision on second homes (Art. 75b FC). The Breil/Brigels municipal council dismissed the objection and granted the building permit.
The objectors filed a complaint with the Administrative Court of Graubünden, which dismissed the complaint on 12 November 2012. The Administrative Court assumed that Art. 75b FC and its transitional provisions (Art. 197 No. 9 FC) would only apply to building permits issued from 1 January 2013 onwards.
The objectors appealed the decision of the Administrative Court to the Federal Supreme Court with a public law appeal and a subsidiary constitutional appeal. The Federal Supreme Court overturned the contested decisions and refused the building permit.
Considerations
The Federal Supreme Court stated that Art. 75b FC and its transitional provisions (Art. 197 No. 9 FC) entered into force on 11 March 2012. Constitutional provisions can be sufficiently specific to be directly applicable (in whole or in part) to private individuals upon their entry into force, without the need for implementing legislation.
Art. 75b(1) FC sets a maximum quota of 20% for second homes, which applies to both the total stock of residential units and the gross floor area used for residential purposes in a municipality. This provision is generally subject to direct application.
Art. 197 No.…