Facts
On 20 September 1951, the State Council of the Canton of Zurich issued a landscape protection regulation around the Forch soldiers' monument (Forchschutzverordnung, FSchV), which established a Zone I with an absolute prohibition on construction. Three parcels belonging to Emil Bäggli and two parcels belonging to Arnold Schulthess were located in this Zone I. After the publication of the regulation, Bäggli and Schulthess filed a public law appeal with the Federal Tribunal, which was partially upheld in 1952. The Federal Tribunal then referred the matter back for examination of the issue of compensation.
In 1959, the Canton of Zurich acknowledged that the construction ban was equivalent to a material expropriation and initiated an assessment procedure in accordance with the Expropriation Act. The assessment commission set the compensation based on the market value of the land at the time the regulation entered into force on 9 October 1951. Bäggli and the heirs of Schulthess contested this decision before the Administrative Tribunal of the Canton of Zurich, which partially upheld the canton's claim.
Considerations
The Federal Tribunal considers that the decisive moment for calculating the compensation in the case of a property restriction equivalent to expropriation is the moment the restriction enters into force, and not the moment of the assessment decision. This solution is justified by the differences between formal expropriation and material expropriation. In the case of formal expropriation, there is an exchange of services between the expropriated party and the expropriating party, which justifies basing the calculation on the moment of the assessment decision. In contrast, in the case of a material restriction of property, the depreciation of the property occurs as soon as the restriction enters into force, and it is at this…