Staggered development plans and extension of a forest clearance permit; neighbours within the meaning of Art. 29 para. 2 BauG; duty of coordination

Facts

The real estate company [B. AG] (respondent) owns plots in an approximately 58'000 m2 area at Rosenberg in St. Gallen, which is predominantly built on with buildings and facilities of the private school 'Institut auf dem Rosenberg'. The northeast-lying plot No. W1950 is still undeveloped.

The Municipality of St. Gallen enacted a development plan 'Sporthalle Institut auf dem Rosenberg' (ÜP Sporthalle), which was to enable the construction of a new sports hall and secure access to plot W1950, which required forest clearance. The Forestry Office granted the forest clearance permit on 14 January 2014. As a compensatory measure, 1'000 m2 of native shrub structures were planned on plot W1950, to be specified in the special use plan. The permit provided that it would lapse if the clearance was not carried out by the end of 2016. The legal remedies against the permit were dismissed at final instance (decision of the Administrative Court of 22 November 2017, which became final).

At the request of the respondent of 15 May 2018, the cantonal Forestry Office extended the deadline for carrying out the clearance until the end of 2021 and the clearance compensation until the end of 2022.

The City Council initiated the proceedings for the development plan 'Institut auf dem Rosenberg' (ÜP Rosenberg) on 30 June 2015. The appellant [A.] , as owner of a plot adjoining plot W1950 to the north, lodged an objection, which was dismissed. The appeal to the Building Department was dismissed by decision of 7 June 2018. The Administrative Court of the Canton of St. Gallen partially upheld the appeal on 20 May 2019 only with respect to the allocation of the official costs of the appeal proceedings and otherwise dismissed it.

Before the Federal Supreme Court, the appellant requested that the prior decision be set aside and that ÜP Rosenberg not be approved. The heirs of the deceased co-appellant [D.] withdrew from the proceedings. The presidential order of 16 July 2019 rejected the application for suspensive effect. The Administrative Court and the City Council requested dismissal, and the respondent did likewise.

The subject matter of the dispute is essentially: conformity with the zoning and arbitrariness regarding deviations from the standard building regime (Art. 23 lit. b BauG), neighbour status and the right to be heard (Art. 29 para. 2 BauG), the duty of coordination (Art. 25a SPA) and the validity of the extension of the forest clearance permit (Art. 5 para. 5 ForA).

Considerations

The appeal in public law matters against the cantonal final-instance decision approving a development plan is in principle admissible (Art. 82 ff. FSCA). The appellant, as owner of an adjoining plot and a party to the proceedings, has standing to appeal (Art. 89 para. 1 FSCA). The complaint of violation of federal law, including the prohibition of arbitrariness (Art. 9 Cst.), is admissible; complaints concerning fundamental rights are subject to the strict requirement of complaint (Art. 106 para. 2 FSCA). The Federal Supreme Court applies the law of its own motion and bases its review on the facts established by the prior instance (Art. 105 para. 1 FSCA).

The duty to give reasons under Art. 29 para. 2 Cst. is satisfied, since the decision states the essential considerations and can be appropriately contested. The prior instance correctly held that the enactment of two mutually coordinated plans for the rapid realisation of the sports hall was permissible and expedient.

On conformity with the zoning under Art. 11 and Art. 23 lit. b BauG: deviations from the standard building regime must not empty the planned and democratically supported basic order of its substance (BGE 135 II 209). The appellant does not explain why a boarding school could not be regarded as a non-disruptive commercial establishment in a residential zone, and does not sufficiently substantiate the asserted cantonal practice, merely referring to the prior instance's written submissions. A complaint of arbitrariness is insufficiently substantiated in this respect. The complaint is dismissed.

On neighbour status under Art. 29 para. 2 BauG: neighbours are landowners whose plot lies no more than 30 metres from the planning area. The appellant is a neighbour only with respect to ÜP Rosenberg, but not with respect to ÜP Sporthalle and the forest clearance permit, since his plot lies more than 30 metres from the planning or clearance area there. Only ÜP Rosenberg determined the specific location of the compensatory planting. A violation of the right to be heard is therefore denied, and the question of cure does not arise. The same applies to ÜP Sporthalle.

On the duty of coordination under Art. 25a SPA: the principle of unity of the building decision and the requirement of material coordination call for an overall assessment where parts cannot meaningfully be assessed in isolation.…