Facts

The appellant ([A. AG] ) is the owner of parcel No. 1405 in the municipality of Speicher (area 'Obere Schwendi', approx. 23'000 m²). In the 1978 zoning plan the parcel was assigned to the single- and two-family residential zone; the appellant acquired it in 1983 and submitted a building application in 1984.

Following the 1985 de-zoning initiative, the parcel was re-zoned in several attempts. In 1992 the Federal Supreme Court set aside the approval decision (BGE 118 Ia 165). In 1994 the Cantonal Government instructed the municipality to adopt a partial zoning plan assigning the parcel to the agricultural zone. A third partial zoning plan was rejected by voters in 1994; the fourth partial zoning plan was approved without the public inspection and voting procedure. The Administrative Court (now the Cantonal Court of Appeal) partially set aside this decision in 1998 and remitted the matter for the ordinary planning procedure. It held that since 1 January 1988 the parcel had been located in a non-building zone pursuant to Art. 36 para. 3 SPA.

On 8 July 1998 the municipal council adopted the fifth partial zoning plan, which assigned the parcel to the agricultural zone and the agricultural priority area. Voters approved this on 29 November 2009; on 26 March 2013 the Cantonal Government dismissed the appellant's appeal. On 19 October 2020 the Cantonal Court of Appeal dismissed the appeal insofar as it was admissible. An expert report by Geotest AG found that 9'400 m² of the parcel meet the federal minimum requirements for farmland of special quality (FFF).

Before the Federal Supreme Court the appellant sought annulment of the decision, a finding that the conditions for invalidating the zoning and for an FFF requirement in the cantonal structure plan were not met, and appeal of several interlocutory decisions (1998, 2016, 2018, 2020). She alleged, inter alia, procedural defects (participation of a retired court clerk, lack of a balancing of interests by the municipality), the classification as FFF, a violation of the guarantee of property and of the protection of legitimate expectations, and the excessive length of proceedings of over 35 years, with an alleged damage of CHF 1'753'038. She further objected to the imposition of the costs of the expert report.

The Federal Supreme Court dismissed the appeal insofar as it was admissible. Court costs of CHF 5'000.-- were imposed on the appellant; no party compensation was awarded.

Considerations

Admissibility: The appeal against the final cantonal decision is available under Art. 82 lit. a, 86 para. 1 lit. d and 90 FSCA; the appellant, as owner, has standing under Art. 89 para. 1 FSCA. The 1998 remittal decision remains appealable as an interlocutory decision under Art. 93 para. 3 FSCA, since it affects the final decision. The interlocutory issue concerning the participation of the court clerk concerns court organisation questions under Art. 92 para. 1 FSCA and should have been challenged separately; the appeal against it is out of time. No ground of nullity exists. Complaints about voting irregularities are inadmissible in the absence of a voting rights appeal. The request for a declaratory finding is inadmissible under Art. 99 para. 2 FSCA, as annulment provides adequate legal protection. Complaints of violations of fundamental rights are subject to the reasoning requirements of Art. 106 para. 2 FSCA.

Procedural complaints: The production of the files is unnecessary. The complaint regarding the lack of standing of [B.] in the appeal fails, since the cantonal building act requires an objection only for lodging an appeal, not for joinder; moreover, [B.] agreed with the plan.

Zoning plan 1978 and Art. 36 para. 3 SPA: Under Art. 35 para. 1 lit. b SPA the cantons were required to adopt a federally compliant land-use plan by 1 January 1988. The 1978 zoning plan was never approved under Art. 26 Cst. and was, moreover, materially oversized (capacity for 5'800 inhabitants, former Art. 15 SPA). It therefore lapsed on 1 January 1988. The deadline could not be extended; the legal consequence occurred regardless of any possible planning delay. Accordingly, Art. 36 para. 3 SPA is decisive, under which only the largely built-up area counts as building zone. The concept is to be interpreted narrowly (BGE 132 II 218). The parcel does not belong to it, so it has been located in a non-building zone since 1988.

Balancing of interests and right to be heard: In its objection decision the municipal council had not carried out a balancing of interests, but it did so in the 2009 voting publication. The appellant was able to comment on this in the appeal proceedings, and the Cantonal Government exercised full powers of review. In view of the excessively long duration of the proceedings, a formal remittal would have been disproportionate; the cure of the defect in the appeal proceedings is admissible.

Farmland of special quality: Farmland of special quality is subject to special protection under Art. 3 para. 2 lit. a and Art. 15 para. 3 SPA as well as Art. 26 ff. SPO. The Cantonal Court of Appeal was entitled to obtain an expert report, since the courts in land-use planning proceedings may review the structure plan, which cannot be appealed independently, as a preliminary question. The report, based on recognised technical criteria from the 2006 implementation aid, found that 9'400 m² meet the minimum requirements. The cantonal structure plan 2019 identifies 797 ha of FFF, while the minimum extent is 790 ha; there is therefore a strong interest in their full preservation.

Requirements for rezoning: Under Art. 30 para. 1bis SPO, FFF may only be rezoned if an important cantonal objective cannot be achieved without using them. This requirement is not met, since the rezoning serves private development interests. Although Art. 30…