Restoration of the lawful state and construction fine for deviations from design guidelines on an alpine hut; remittal for insufficient reasoning on equal treatment in unlawfulness and on proportionality

Facts

Parties and Instances: The Municipality of Davos (appellant) appealed to the Federal Supreme Court against the judgment of the Administrative Court of the Canton of Graubünden, 5th Chamber, of 15 January 2020 (R 17 69 ses). Respondent is [A.A.] (usufructuary), represented by lawyer Thomas Hess; [B.A.] (owner of parcel No. 7918 in the preservation zone of Davos Wiesen) participated in the proceedings before the lower court, and on his appeal the lower court declined to enter into the matter.

Facts: In 2007 an alpine hut on the parcel burned down, together with 13 other of the approximately 40 huts on the Wiesner Alp. On 2 April 2009 the Municipality issued design guidelines (developed together with the Heimatschutz). On 14 July 2009/25 May 2010 it approved the building application of 2 July 2009, except for the second door on the south-east side. During a shell construction inspection in spring 2013, the Municipality identified deviations (windows 100 cm x 70 cm instead of 90 cm x 90 cm, second entrance door, additional cellar). Following a revision application of 22 August 2014, the Municipality on 24 February 2015 approved some changes; the cellar (10.5 m²), the second door, four multi-leaf glazing-bar windows of 100 cm x 70 cm on the ground floor and the glazing bars on the upper floor were not approved. This refusal of the building permit is final.

Order and Lower Court: On 8 August 2017 the Municipality ordered restoration within a deadline until 31 July 2018 and imposed a construction fine of CHF 20,000.--. The Administrative Court, after an inspection on site, annulled the order and remitted the matter. It issued, in substance, tolerance orders for the windows, the double entrance door and the cellar, and set the construction fine at CHF 4,000.--. It reasoned that a considerable variety of deviations had been tolerated on the Wiesner Alp (log construction, double purlins, concrete plinths, etc.), that restoring the windows was not aesthetically necessary and was disproportionate, that window formats already existed in older alpine huts, and that the comfort gained from the cellar was minor.

Applications before the Federal Supreme Court: The Municipality applied for annulment and remittal so that the order of 8 August 2017 would be confirmed and an appropriate fine imposed. The Administrative Court applied for dismissal. The respondent applied for non-entry and, in the alternative, dismissal. ARE waived its observations. The respondent requested an inspection on site by the Federal Supreme Court and submitted new documentation.

Legal Question: Whether the restoration order and fine are permissible under federal and cantonal law (municipal autonomy, equal treatment in unlawfulness, guarantee of property, proportionality) and whether the Administrative Court sufficiently reasoned its decision.

Considerations

Admissibility (entry into the matter): The Federal Supreme Court treats the remittal decision as a final decision, because the Municipality retains no further margin of assessment (Art. 90 FSCA; BGE 142 II 20). Under Art. 89 para. 2 lit. c FSCA the Municipality has standing to appeal for violation of municipal autonomy (Art. 50 para. 1 Cst., Art. 65 para. 1 KV/GR); whether the autonomy actually exists is a question for the substantive assessment. The alternative request to include [B.A.] is not to be entered into, because the lower court declined to hear his appeal for lack of party status, and the Municipality does not allege a violation of law (Art. 95 FSCA) (Art. 42 paras. 1 and 2 FSCA). The request for an inspection on site is dismissed, since the facts sufficiently appear from the file. New evidence remains disregarded (Art. 99 para. 1 FSCA).

Municipal Autonomy: The Graubünden municipalities are largely autonomous in the areas of spatial planning and construction (Art. 3 para. 1, Art. 22 CRA). The municipal building authority is primarily competent for restoration orders (Art. 94 para. 2 CRA), and the design provisions belong to the sphere of autonomy under Art. 22 para. 3 SPA in conjunction with Art. 24 para. 2 CRA. Art. 31 para. 3 no. 2 CRA leaves the municipalities considerable discretion. The Federal Supreme Court reviews freely whether the lower court respected this margin of assessment.

Equal Treatment in Unlawfulness (Art. 8 para. 1 Cst.): A claim exists only where there is a consistent unlawful practice that the authority is unwilling to abandon, and only in comparable situations (BGE 146 I 105). In the view of the Federal Supreme Court, the examples cited by the lower court (log construction, double-leaf balcony doors, double purlins, concrete plinths) do not justify an unlawful practice, because the guidelines partly expressly permit them, or because the lower court did not justify its interpretation by reference to the guidelines, which violates Art. 29 para. 2 Cst. The glued laminated timber and the oversized purlins remain, but alone do not establish an unlawful practice. The respondent cites numerous further cases that the lower court did not examine; it is not the task of the Federal Supreme Court to assess these for the first time. The matter must therefore be remitted. Furthermore, it must be noted that the Municipality had no knowledge of the cases outside the building zone in relation to the enforcement competence of the BAB authority (Art. 94 para.…