Facts
Parties and procedural history:
The complainant ([A.] ) is the owner and resident of a penthouse apartment above the contested rock cellar in Chur. The respondent ([B.] ) has operated the "Blue Wonder" music store there since 1988 and has used the middle part of the rock cellar as the "Purple Groove Club" for cultural events since 2015. In 1992, the City of Chur granted a building permit for the conversion of the rock cellar back into a wine cellar with tasting room, subject to a reservation for changes of use outside the building zone. On 5 April 2019, the City of Chur determined that the existing use of the music store was in conformity with zoning and waived a building permit procedure. The complainant appealed this decision, whereupon the City Council of Chur issued a partially approving decision on 14 January 2020 that the club room could not be used permanently for public commercial events. The Administrative Court of the Canton of Graubünden dismissed the appeal on 24 November 2021. The complainant filed an appeal against this decision with the Federal Supreme Court on 10 January 2022.
Detailed facts:
The rock cellar extends partly over the residential zone W4 and partly over a forest area (non-building zone). The contested club room is located in the middle part of the rock cellar. The complainant objected to the use as illegal, since there was no building permit for the conversion into a club room and the use was neither in conformity with zoning nor with building regulations. In addition, the consent of the owners was lacking. The City of Chur and the ARE argued that the use was permissible under the principle of acquired rights pursuant to Art. 24c SPA, while the complainant emphasised the necessity of a cantonal CRA permit (Art. 25 para. 2 SPA).
Considerations
1. Admissibility of the appeal:
The complainant is entitled to file the appeal, as it has a legitimate interest in the annulment of the contested decision. Although it could not be proven that noise emissions directly entered her apartment, noise pollution caused by guests entering and leaving the club at her open windows is evident. In addition, the complainant has a legitimate interest in compliance with spatial planning regulations.
2. Subject matter of the dispute and procedural economy:
The subject matter of the dispute is limited to the legality of the use of the club room in the middle part of the rock cellar. The sound studio in the rear part of the cellar, which is located entirely outside the building zone, is not the subject of the proceedings, as the complainant did not raise any specific objections in this regard and the lower court was right not to consider it. The complainant has inadmissibly expanded its requests in the Federal Supreme Court proceedings by now also contesting the legality of the sound studio.
3. Building permit requirement and conformity with zoning:
The conversion of the tasting room (approved in 1992) into a club room constitutes a change of use, which, according to Federal Supreme Court case law, is generally subject to a building permit requirement. This applies in particular since the new use is associated with significant impacts on the surroundings, e.g. through increased public traffic, noise emissions and requirements for fire protection and escape routes. The building permit requirement follows from Art. 22 SPA, as the change of use has spatial and operational consequences that require prior control by the authorities.
4. Application of the rules for construction outside the building zone:
The club room is located partly outside the building zone (forest area). For changes of use outside the building zone, the strict provisions of Arts. 24 et seq. SPA apply. An exceptional permit from the competent cantonal authority (Art. 25 para. 2 SPA, Art. 87 CRA) is required, as the use is not in conformity with zoning. The reservation in the 1992 building permit, according…