Facts

Parties and proceedings: The Municipality of Davos (appellant, represented by the Small Council of the Landrat) files a public law appeal against the judgment of the Administrative Court of the Canton of Graubünden, 5th Chamber, of 15 January 2020 (R 17 68 ses). The respondent is [A.] (owner), represented by attorney Thomas Hess. The subject matter is the restoration of the lawful state and a construction fine.

Facts: [A.] is the owner of parcel No. 7917 in the preservation zone of Davos Wiesen, a non-building zone. The alpine hut on the parcel burned down in 2007 together with 13 other huts out of roughly 40 on the Wiesner Alp. On 2 April 2009 the municipality issued design guidelines for the reconstruction (in cooperation with the Heimatschutz). These require square windows of at most 90 cm x 90 cm, single-leaf and without glazing bars. The building permit of 14 July 2009 (recte 2010) was granted for the project plans with the corresponding windows, with the exception of a second east door. During the shell inspection in spring 2013 the municipality found deviations. On 22 August 2014 [A.] submitted a revision application. By decision of 24 February 2015 the municipality approved all changes except four multi-leaf glazed-bar windows (100 cm x 70 cm) on the ground floor and glazed-bar windows on the upper floor. The Administrative Court dismissed the appeal against this decision on 4 October 2016. By decision of 8 August 2017 the municipality ordered that the windows be replaced with single-leaf windows without glazing bars measuring 90 cm x 90 cm (deadline 31 July 2018) and imposed a construction fine of Fr. 18'000.--.

Lower court: After an inspection on site, the Administrative Court upheld the appeal, annulled the decision of 8 August 2017 and remanded the matter to the municipality. It considered a tolerance order for the windows appropriate and set the construction fine at Fr. 1'500.--. It reasoned that the municipality had permitted a considerable variety of deviations, that restoration was not aesthetically necessary and was disproportionate, that the window format already occurred in old alpine huts, and that a consistent practice had existed.

Proceedings before the Federal Supreme Court: The municipality requests that the lower court's judgment be set aside and that the decision of 8 August 2017 be confirmed, as well as an appropriate fine. The Administrative Court requests dismissal. [A.] requests non-entry on the appeal, alternatively dismissal, and requests an inspection on site by the Federal Supreme Court. The SFOT (ARE) waived a statement of position.

Considerations

Admissibility: The remand decision is an interlocutory decision but is treated in accordance with practice as a final decision, since the municipality no longer has a margin of assessment given the binding determination of the tolerance and the fine (Art. 90 FSCA). Under Art. 89 para. 2 lit. c FSCA the municipality is entitled to invoke municipal autonomy (Art. 50 para. 1 Cst., Art. 65 para. 1 KV/GR); whether the autonomy actually exists is a substantive question. The request to set aside the entire judgment is to be interpreted in good faith in light of the reasoning, since the municipality agrees to the reduction of the fine. The appeal does not require authorisation by the Small Council of the Landrat, since it was signed by the Landammann and the Landschreiber under Art. 39 GG. The request for an inspection on site is dismissed, since the facts sufficiently emerge from the file.

Municipal autonomy: A municipality is autonomous where superior law does not regulate the field exhaustively and grants it relatively substantial freedom of decision; the protection concerns the disputed area. The Federal Supreme Court examines freely whether the appellate authority respected a margin of assessment. Graubünden municipalities are autonomous to a large extent in spatial planning and construction (Art. 3 para. 1, Art. 22 CRA). Municipal building authorities are primarily responsible for restoration orders (Art. 94 para. 2 CRA); the design provisions fall within the municipality's competence. Art. 31 para. 3 no. 2 CRA leaves the municipalities considerable scope.

Equal treatment in unlawfulness: In principle a person seeking legal protection cannot invoke errors in other cases. Only where there is a consistent unlawful practice whose continuation the authority has recognised does a claim to the same unlawful favourable treatment exist under Art. 8 para. 1 Cst. The authority must also furnish proof of the practice through construction inspections (Judgment 1C_398/2011). A claim exists only for comparable facts. The examples cited by the Administrative Court (log construction, double-leaf balcony doors, double purlins, concrete plinths) are, in the view of the Federal Supreme Court, not suitable to demonstrate an unlawful practice, since the design guidelines partly expressly permit such elements; the Administrative Court did not give reasons for the municipality's differing interpretation, which constitutes a breach of the duty to give reasons (Art. 29 para. 2 Cst.). Only the laminated timber in two cases and oversized purlins remained, which do not establish an unlawful practice. The Administrative Court did not address the respondent's extensive dossier; the Federal Supreme Court is not the first instance for establishing facts, so the matter must be remanded.

Competence of cantonal authority: Under Art. 94 para. 2 sentence 2 CRA, outside the building zones the BAB authority has subsidiary competence if the municipality remains inactive despite a request. There is no refusal to enforce, since it is not established that the BAB authority had knowledge (Art. 25 para. 3 SPA). The lower court must take…