Facts

The Municipal Executive of the Municipality of Malans (Canton of Grisons) issued a planning zone covering the entire municipal territory on 13 August 2019. Its purpose was to examine provisions on mobile antenna installations in the municipal land-use planning. The planning zone was enacted for two years and entered into force immediately upon publication in the Cantonal Gazette on 16 August 2019. During its validity, nothing could be undertaken that might complicate or conflict with the new planning; construction projects could only be approved if they did not contradict either the legally binding or the planned new plans.

The mobile network operators Sunrise Communications AG, Salt Mobile SA and Swisscom (Schweiz) AG filed an appeal. The Government of the Canton of Grisons dismissed it on 17 December 2019; the Administrative Court of the Canton of Grisons (5th Chamber) likewise dismissed the appeal by judgment of 23 March 2021. The mobile network operators then lodged a public law appeal with the Federal Supreme Court and requested the annulment of the lower court's judgment. The Administrative Court, the Department of Economy and Social Affairs and the Municipality of Malans requested dismissal.

During the proceedings before the Federal Supreme Court, the municipality informed the court that the planning zone had been extended by two years and that on 28 October 2021 the municipal assembly had adopted a partial revision of the local planning concerning mobile antenna installations, which, until approval by the cantonal government, has the effect of a statutory planning zone and replaces the disputed planning zone. The mobile network operators maintained their appeal.

Central question: Whether the appeal is admissible despite the subsequent loss of the current legal interest in proceedings, and whether the municipality-wide planning zone for mobile antenna installations was proportionate (Art. 26 Cst., Art. 36 Cst., Art. 27 SPA, Art. 21 CRA/GR).

Considerations

Admissibility and entry into the merits: The enactment of a planning zone constitutes a final decision within the meaning of Art. 90 FSCA. The appellants had standing to appeal (Art. 89 para. 1 FSCA). Although the current practical legal interest in proceedings lapsed subsequently due to the replacement of the planning zone (BGE 147 I 478 consid. 2.2), the Federal Supreme Court exceptionally dispenses with this requirement where the questions may arise again under similar circumstances at any time, timely review would hardly ever be possible, and the matter is of fundamental importance in the public interest. Since several other Grisons municipalities had enacted similar municipality-wide planning zones, and the two-tier cantonal instance procedure hardly allows review by the Federal Supreme Court, the Federal Supreme Court entered into the merits of the appeal.

Legal basis and admissibility of a planning zone: Under Art. 27 SPA, planning zones may be designated for precisely defined areas where land-use plans need to be amended or do not yet exist. They may last for no more than five years. Art. 21 CRA/GR specifies this and permits planning zones only for areas affected by the planned amendment. A reasonably concrete planning intention suffices for enactment. The planning zone constitutes a restriction of property within the meaning of Art. 26 Cst., which requires a legal basis, a public interest and proportionality (Art. 36 Cst.). A public interest is lacking if the planning intention would be manifestly impermissible. Protection against non-ionising radiation is exhaustively regulated under federal law (BGE 138 II 173 consid. 5.1); however, cantons and municipalities may enact rules to protect against non-material immissions and to protect townscapes, such as site evaluations, cascade models and aesthetic clauses, which take into account the objectives of telecommunications legislation. A de facto ban on antennas in built-up areas is impermissible (BGE 133 II 353 consid. 4.2).

Proportionality in spatial and substantive terms: A planning zone may not, in spatial, substantive or temporal respects, go beyond what is necessary to secure the planning objective. The lower court had justified the municipality-wide zone on the grounds that the ISOS townscape and green spaces as well as a holistic site planning also had to be taken into account. The Federal Supreme Court agreed in principle: the draft of a new Art. 51a of the municipal building regulations provided for a site evaluation that afforded protection against non-material immissions only for residential areas, but not for work or…