Decision of the Federal Supreme Court on the Jurisdiction for Exceptional Permits Outside the Building Zone

Facts

On April 4, 2001, the Grand Council of the Canton of Bern adopted an amendment to the Bernese Building Act. According to Art. 84 para. 1 of the amended law, the District Governor (Regierungsstatthalter) decides on the conformity with the zoning regulations in the agricultural zone and on applications for exceptional permits under Articles 24 to 24d of the Spatial Planning Act (RPG).

Elisabeth Gilgen-Müller and Peter Aebi filed a constitutional appeal against this regulation. They argued that Art. 84 para. 1 of the Building Act violates Art. 25 para. 2 RPG, which prescribes a uniform cantonal jurisdiction for exceptional permits outside the building zone.

Considerations

The Federal Supreme Court upheld the appeal and repealed Art. 84 para. 1 of the Building Act. It concluded that the regulation in the Canton of Bern, which distributes the jurisdiction to 26 District Governors, violates Art. 25 para. 2 RPG.

According to the case law and legal doctrine, Art. 25 para. 2 RPG requires that exceptional permits for construction projects outside the building zones are either granted by a single cantonal authority or with its consent. The Bernese regulation does not meet this requirement, as it distributes the…