Dismissal of appeal against building permit for new single-family house with consideration of the second-home restriction

Facts

Parties and procedural history:

The appellants [A.A.] , [B.A.] and [C.A.] are owners of the neighbouring property (plot no. 3168) immediately southeast of the construction site at [U.] weg in Gstaad. The respondents [D.E.] and [F.E.] are owners of the plot Saanen Gbbl. no. 3100 in residential zone W3b, on which an existing chalet ([G.] I) and an underground garage stand. They applied for the construction of a second chalet ([G.] II) and the expansion of the garage. The municipality of Saanen granted a building permit with a total decision dated 26 May 2020 and granted an exemption for the reduction of the regular forest clearance distance. At the same time, the appeals of the appellants and another person were dismissed and a restriction on use as a primary residence was noted in the land register.

The appellants and the other appellant filed an appeal with the Building and Transport Directorate of the Canton of Bern (BVD), which consolidated both proceedings and dismissed the appeals with a decision dated 27 January 2021. The Administrative Court of the Canton of Bern upheld this decision with a judgment dated 6 April 2022. The appellants then filed an appeal in public law matters with the Federal Supreme Court, which they submitted with a pleading dated 23 May 2022. The respondents, the municipality of Saanen and the Administrative Court requested the dismissal of the appeal.

Subject of the dispute:

The appellants particularly allege a violation of the second-home restriction (Art. 75b Cst. and Art. 6 para. 1 SHA) as well as deficiencies in local image and landscape protection. They argue that the building permit constitutes a circumvention of the second-home restriction, as the planned chalet [G.] II, due to its size, layout and location, is not suitable as a primary residence. They also complain that the cantonal commission for the preservation of local and landscape images (OLK) was not consulted.

Considerations

Admissibility of the appeal:

The Federal Supreme Court reviews the appeal in public law matters pursuant to Art. 82 lit. a and Art. 86 para. 1 lit. d FSCA. The appellants are particularly affected as owners of the neighbouring property and are thus entitled to file an appeal (Art. 89 para. 1 FSCA). There is no ground for exemption pursuant to Art. 83 FSCA. The appeal was filed in due form and within the deadline and is therefore admissible.

Review standard and principle of specific objections:

The Federal Supreme Court reviews violations of federal law ex officio (Art. 106 para. 1 FSCA), but limits itself to the objections raised, unless there are obvious legal deficiencies (Art. 42 para. 2 FSCA). The application of cantonal law is only reviewed for arbitrariness (Art. 95 FSCA in conjunction with Art. 9 Cst.). An arbitrariness ruling applies if the decision is obviously untenable or violates undisputed legal principles. The factual findings of the lower court are binding (Art. 105 FSCA), unless they are obviously incorrect or based on a legal violation.

Second-home restriction and circumvention intent:

The appellants allege a violation of the second-home restriction (Art. 75b Cst. and Art. 6 para. 1 SHA). According to the case law of the Federal Supreme Court, in building permit proceedings, it must be examined ex officio whether there are concrete indications that the intention or possibility of primary residential use appears unrealistic. Factors to be considered include the location of the property, the structural design, the price and the circumstances of the users (e.g. current place of residence and work, intentions to move). Abuse is only obvious if it is clearly recognisable (BGE 144 II 49 para. 2.2).

The lower court concluded that there were no indications of an intention to circumvent the restriction. It relied on a confirmation letter from the daughter of the respondents, who stated that she would use the chalet as her primary residence. The size of the new building (gross floor area of approx. 850 m²) and the construction costs (CHF 6.3 million) did not suggest an intention to circumvent the restriction, as wealthy individuals also reside in the Saanenland. Any potentially atypical layout does not preclude use as a primary residence. The lower court also took into account that the chalet is accessible year-round and is located in a residential zone. The appellants did not present any concrete evidence that would render the daughter’s intentions to move unrealistic. Their objections, such as those regarding the layout or school options, were unconvincing as they did not establish an obvious intention to circumvent the…