Admissibility of a Second Extension of a Planning Zone under Art. 27 SPA

Facts

The appellants [A.] and [B.] are the owners of plot Parz.-No. 508 of the land register of Bilten, which lies within the perimeter of a planning zone of the municipality of Glarus Nord.

On 9 October 2013 the Municipal Council of Glarus Nord established a planning zone valid until 31 December 2015. The Administrative Court of the Canton of Glarus confirmed it in final instance on 14 January 2016.

On 2 December 2015 the Municipal Council extended the planning zone until 31 December 2017, and on 22 November 2017 it extended it again until 31 December 2020. The Department of Construction and Environment (DBU) partially upheld an appeal by the owners and limited the planning zone to 9 October 2020. The Administrative Court of the Canton of Glarus, First Chamber, dismissed the owners' appeal against this decision on 27 June 2019 (GLA.2019.00034).

By public law appeal of 30 August 2019, the owners requested the annulment of the decisions of the Administrative Court, the DBU and the municipality concerning the second extension. The lower court, the DBU and the municipality requested dismissal of the appeal.

Subject matter of the dispute: Whether Art. 27 para. 2 SPA permits a planning zone to be extended twice.

Considerations

Admissibility: The enactment of a planning zone is considered a final decision (Art. 90 FSCA). The owners, as affected landowners, have standing to appeal (Art. 89 para. 1 FSCA). The appeal is admissible insofar as it is directed against the judgment of the Administrative Court; as regards the decisions of the municipality and the DBU, the appeal is inadmissible due to the devolutive effect, but these decisions are deemed to be contested as well (BGE 134 II 142 E. 1.4).

Legal framework: Under Art. 27 para. 2 SPA, planning zones may be fixed for a maximum of five years, whereby cantonal law may provide for an extension. Art. 31 para. 3 RBG of the Canton of Glarus provides for an extension by a further two years at most. The owners do not object to the total duration of seven years, but complain that Art. 27 para. 2 SPA allows only a single extension.

Interpretation: The wording of the German and Italian versions is not unequivocal as to whether only one extension is permissible. The French text contains no restriction to a single extension and rather supports the view of the lower court. Further interpretive elements must therefore be considered; the legislative materials provide no indications. The primary focus is on the purpose of the temporal limitation and the possibility of extension.

Purpose and case law: The planning zone secures the freedom of decision of the planning authorities and results in a restriction of property, which is permissible only with a legal basis, a public interest and proportionality (Art. 26 and 36 Cst.). Art. 27 SPA leaves room for detailed cantonal regulations, provided that the purpose is preserved. A planning zone may not serve to postpone the enactment of new provisions indefinitely. Since not all difficulties are foreseeable at the time of enactment, a possibility of later extension is required under federal law; a cantonal regulation that excludes an extension a priori violates Art. 27 SPA (Judgment 1C_141/2014 E. 5.4).

Admissibility of the…