Planning gain levy on upzoning and rezoning: prohibition of further municipal levies contrary to federal law, exemption threshold of CHF 50,000 not justified

Facts

The Cantonal Parliament of Basel-Landschaft enacted on 27 September 2018 the Act on the Compensation of Planning Gains (GAP). The Act was adopted in the popular vote of 10 February 2019 and entered into force on 1 May 2019.

Pursuant to § 2 para. 1 GAP, a levy of 20 % of the land value gain is charged on the new assignment of land to a building zone. § 2 para. 2 GAP prohibits the municipalities from levying further planning gain levies. § 2 para. 3 GAP allows the municipalities, in the case of quarter plans and exceptional developments according to a uniform plan, to agree on an infrastructure contribution with the landowner in an administrative law contract. § 4 para. 2 GAP provides for an exemption threshold of CHF 50,000. According to § 5 para. 1 GAP, the planning gain levy accrues 75 % to the canton and 25 % to the municipality in which the site is located.

The municipality of Münchenstein and a landowner (A.) filed a public law appeal with the Federal Supreme Court on 6 May 2019 and requested the annulment of § 2 paras. 2 and 3, § 4 and § 5 para. 3 GAP. They complained in particular of a violation of Art. 5 SPA, of the principle of equal treatment (Art. 8 para. 1 Cst.), of the prohibition of arbitrariness (Art. 9 Cst.) and of municipal autonomy.

The canton considered the regulation to be compliant with federal law. The Federal Office for Spatial Development (ARE) pointed out that, with regard to compensation provisions, the cantons have wide discretion beyond the minimum requirements, and described an exemption threshold of CHF 50,000 as a borderline case.

The Federal Supreme Court partially upheld the appeal.

Considerations

The Federal Supreme Court holds that the general legislative mandate in Art. 5 para. 1 SPA remains binding law even after the revision of 15 June 2012. The new paragraphs 1bis-1sexies merely specify a minimum scope (new zoning). Cantonal law must therefore also adequately compensate significant advantages arising from upzoning and rezoning. The canton may fulfil the mandate itself or leave the municipalities the necessary scope.

It is contrary to federal law if a canton merely implements the minimum requirements of Art. 5 para. 1bis-1sexies SPA while at the same time prohibiting the municipalities from introducing their own advantage compensation. The prohibition in § 2 para. 2 GAP is therefore incompatible with federal law.

Compensation must be carried out in an equal and non-arbitrary manner (Art. 8 para. 1 and Art. 9 Cst.). The planning gain compensation itself is based on considerations of equality, which is why the principle of equal treatment has here an independent content going beyond the prohibition of arbitrariness. The canton does indeed have a wide margin of discretion regarding the instruments of compensation, including contractual solutions. However, the scope of § 2 para. 3 GAP, which permits contractual solutions only for quarter plans and exceptional developments, excludes upzoning and rezoning from the levy without an objective reason. This violates the principle of equal treatment. Since only para. 2 is incompatible with federal law when para. 3 is removed, only para. 2 is to be annulled.

Pursuant to Art. 5 para. 1quinquies lit. b SPA, the levy may be waived if the yield is in an unfavourable relation to the collection costs. The exception is to be interpreted narrowly. In BGE 143 II 568 the Federal Supreme Court named an indicative value of CHF 30,000; an exemption…