Facts
Parties and procedural history:
The Federal Office for Spatial Development (RPTSO) filed a complaint with the Administrative Court of the Canton of Grisons on 27 March 2017 against a building permit issued by the municipality of Arosa on 20 February 2017. The subject of the complaint was the conversion of a barn building into a holiday/weekend building in the area “Blackter Stafel”, Fondei (former municipality of Langwies, now Arosa). The parcel is located in the preservation zone “Nigglisch Hus/Blackter Stafel”, which, according to the zoning plan of 1996/1997, is designated as a non-building zone. On 27 January 2017, the Cantonal Heritage Conservation Office of Grisons had approved the project with modifications.
The Administrative Court of Grisons dismissed the complaint filed by the RPTSO with a judgment dated 29 November 2017. The RPTSO appealed this decision to the Federal Supreme Court (public law appeal) on 1 February 2018 (1C_62/2018, judgment dated 12 December 2018). The RPTSO requested the annulment of the contested permit and a ruling that the building permit could have been issued without the consent of the cantonal authority.
Facts of the case:
The disputed parcel is located in a preservation zone that, according to the General Development Plan and General Design Plan of 1996, is not developed (no water, wastewater or electricity supply; access only by off-road vehicles). The zoning plan of the former municipality of Langwies (now Arosa) provides that for the preservation zone “Nigglisch Hus/Blackter Stafel”, new buildings, extensions and demolition and reconstruction are excluded. Only the conversion and extension of existing buildings for residential purposes is permitted, subject to compliance with form and volume. The zone primarily serves to preserve the existing building fabric.
The respondents (A. and B.) intended to convert an existing barn building into a holiday/weekend building. However, the competent cantonal authority (Office for Spatial Development Grisons, RPTSO/GR) did not issue a CRA permit (permit for construction projects outside the building zone). Nevertheless, the municipality of Arosa approved the project, which the RPTSO contested as unlawful.
Considerations
1. Qualification of the preservation zone as a non-building zone:
The Federal Supreme Court confirmed the previous case law according to which preservation zones under Art. 33 SPO do not constitute building zones within the meaning of Art. 15 SPA. Although they allow limited conversions and extensions, they primarily serve to protect existing building fabric and not to create new residential capacity. The preservation zone “Nigglisch Hus/Blackter Stafel” must therefore be qualified as a non-building zone, even if it permits certain construction activities. This has the consequence that construction projects in such a zone require the consent of the cantonal authority under Art. 25 para. 2 SPA. Such consent was not granted in the present case, although the RPTSO/GR considered the project to be eligible for a permit.
2. Preliminary examination of the zoning plan:
The Federal Supreme Court held that zoning plans generally become final and cannot be reviewed in preliminary proceedings during the building permit procedure. An exception applies, however, if the factual or legal circumstances have changed significantly since the plan was adopted. In the present case, the zoning plan was adopted in 1996/1997 and approved in 1997. Since then, the legal situation (e.g. introduction of the Second Homes Act in 2015, SPA revisions) and factual circumstances (e.g. conversions of barn buildings to residential use already carried out) have changed significantly. Moreover, the planning horizon (10–15 years) has been significantly exceeded. Therefore, a preliminary examination of the zoning plan in the building permit procedure is justified.
3. Failure to qualify as a small settlement and circumvention of exception permits:
The preservation zone “Nigglisch Hus/Blackter Stafel” does not meet the requirements of a small settlement under Art. 33 SPO, as it lacks a closed structural unit with at least five to ten originally inhabited buildings and a support function for the surrounding area. Furthermore, allowing the conversion of barn buildings to second homes in an undeveloped, remote zone constitutes a circumvention of the strict requirements for exception permits outside the building zone (Art. 24d para. 3 lit. c and e SPA, Art. 43a lit. c and e SPO). Such conversions are contrary to the objectives of spatial planning, in particular the separation principle…