Zoning revision: rezoning of an equestrian sports facility in the BLN object – annulment due to inadequate site evaluation, balancing of interests and water protection assessment

Facts

The appellants [A.] , [B.] , [C.] and [D.] (neighbours) challenge the judgment of the Administrative Court of the Canton of Graubünden, 5th Chamber, of 2 December 2019 (R 18 60), which dismissed their appeal against the approval decision of the Government of 7 August 2018 concerning the zoning revision for horse-breeding facilities in Champfèr of the Municipality of Silvaplana. The co-party and project developer is [E.] .

The undeveloped parcel No. 347 (approx. 2.2 ha) lies in BLN object No. 1908 'Oberengadiner Seenlandschaft und Berninagruppe', in a groundwater protection zone and in the Au water protection area. It was assigned to the agricultural zone. The Regional Structure Plan Upper Engadine was supplemented in 2012 by a site for a regional equestrian sports facility.

On 9 March 2016 the Municipal Assembly adopted a partial revision (rezoning to an equestrian sports zone, GEP 2016, GGP 2016). In its opinion of 16 June 2017, the ENHK expressed reservations, considered the project a serious impairment of the BLN object and demanded a site outside the object; for the case of an inner-site solution, it specified downsizing criteria. On 6 September 2017 the Municipality of St. Moritz rejected the alternative site.

In Phase I, on 24 October 2017 the Government approved the rezoning of approx. 1.18 ha in the eastern part, suspended the rezoning of approx. 1.02 ha in the western part until a revised GGP, approved the GEP 2016 and the partial revision of the Building Act, but not the GGP 2016. This decision was not contested.

In Phase II, the public participation took place from 2 November to 4 December 2017. The Municipal Assembly of 7 December 2017 adopted the revised GGP 2017. On 7 August 2018 the Government approved the rezoning of approx. 0.58 ha and the GGP 2017 subject to conditions, refused the equestrian sports zone for approx. 0.44 ha and dismissed the planning appeal. The Administrative Court dismissed the appeal after an inspection on site.

Before the Federal Supreme Court, the appellants request the annulment of the judgment of the Administrative Court as well as of the decisions of the Government and the Municipality, and request an opinion from the ENHK. The Municipality requests dismissal and the obtaining of a report from the Swiss National Stud. The Government, the Administrative Court and [E.] request dismissal. The ARE refers to the Administrative Court; the FOEN comments without a request.

Considerations

Admissibility: The appeal in public law matters against the final cantonal decision on land-use planning is admissible (Art. 82 let. a, Art. 86 para. 1 let. d, Art. 90 FSCA). The appellants are entitled to appeal as neighbours and direct addressees (Art. 89 para. 1 FSCA). The complaints are to be examined under Art. 95 and 106 para. 2 FSCA; the complaint regarding the establishment of facts is subject to Art. 97 para. 1 FSCA.

Subject matter of the dispute: The subject matter of the proceedings is limited to the decision points of Phase II (rezoning of the partial area of approx. 0.58 ha and GGP 2017). The components approved in Phase I and not contested have become final and can no longer in principle be called into question; to that extent, the appeal is inadmissible. The examination of alternative sites nevertheless remains part of the subject matter insofar as it concerns the rezoning in Phase II and buildings on the subsequently rezoned part, in particular the site of St. Moritz.

Public participation (Art. 4 SPA, Art. 29 para. 2 Cst.): The public participation took place at the draft stage; proposals were addressed on the merits, and the ENHK opinion was mentioned in the planning report. The fact that the invitation to the Municipal Assembly was issued before the conclusion of the participation procedure does not alter the openness of the outcome. The complaints are unfounded.

Protection of nature and cultural heritage (Art. 6 NCHA, OILNM): The rezoning is a federal task (Art. 2 NCHA, Art. 15 SPA). Deviating from the undiminished preservation of an inventory object is permissible only where interests of equal or higher value of national significance are at stake (Art. 6 para. 2 NCHA). For minor interventions, a more weighty interest suffices. The overall effect of related interventions must be assessed (Art. 6 para. 3 OILNM). Interests of national significance for equestrian sport have not been demonstrated; an intervention that is more than slight would be impermissible. Phase II follows on from Phase I and must be assessed in its overall effect. Even for a slight intervention, the examination of alternative sites is required; the requirement of the greatest possible protection continues to apply.

Site evaluation and balancing of interests: The rejection of the alternative site by St. Moritz related to the entire facility; it was not examined whether a partial relocation (outdoor installations) is possible and whether suitable fields of the project developer come into consideration. The weight of the intervention in Phase II (riding arena with round pen, group paddock) was not sufficiently assessed; the lower court did not adequately address the landscape qualities of the central alluvial fan of the Suvrettabach, which is to be kept free. A serious impairment is possible. Even in the case of a minor intervention, a sufficient balancing of interests is lacking: the need for an indoor riding hall and an open riding arena at the same location was not examined; Art. 26ter para. 8 BauA does not dispense with the public interest; the results of the site examination are not taken into account. The contested judgment therefore violates federal law on nature and heritage protection.

Water protection (Art. 19 para. 2 WPA, Art. 32 WPO, Annex 4 WPO, Art. 46 para. 1bis WPO): The…