Building permit for three primary residences: no circumvention of the second homes ban where demand for primary residences is proven

Facts

[E. AG] (respondent) filed a building application on 21 February 2012 for the construction of an apartment building with five flats and an underground car park on plot Gsteig Gbbl. No. 880 in the WG3 residential and commercial zone. The Regierungsstatthalteramt Obersimmental-Saanen granted the project on 21 August 2012. The objection of the condominium owners' association STWE [A.] and of [B.] , [C.] and [D.] (appellants) was dismissed. The Bern Cantonal Administrative Court supplemented the permit with the condition that the flats be used as primary residences; the Federal Supreme Court confirmed this on 10 July 2015 (1C_114/2015).

On 4/18 November 2014 the respondent filed a new building application for the same plot: construction of a residential and commercial building with a motor vehicle maintenance and sales business on the ground floor, three primary residences and an underground car park. The Regierungsstatthalteramt granted the project on 25 July 2016 subject to the condition of primary residence use. The Department of Construction, Transport and Energy (ACI) and the Administrative Court dismissed the appellants' appeal.

By judgment of 15 June 2018 (1C_592/2017) the Federal Supreme Court upheld the appeal and remitted the matter to the Administrative Court to supplement the establishment of facts. The latter had to examine of its own motion whether concrete indications made the intention or possibility of primary residence use appear unrealistic. The Administrative Court obtained information, held a public final hearing and dismissed the appeal on 7 May 2019.

On 7 June 2019 the appellants lodged a public law appeal with the Federal Supreme Court. They requested the annulment of the decision, the nullity or annulment of the building permits, the rejection of the building application, a finding that the first building permit of 2012 had lapsed, and, in the alternative, the taking of further evidence. The respondent, the Administrative Court, the ACI and the Federal Office for Spatial Development (ARE) requested dismissal. The Municipality of Gsteig maintained its submissions. Suspensive effect was granted, and an application for provisional measures (dismantling) was dismissed.

The question at issue is whether the building permit for three primary residences constitutes a circumvention of the second homes ban under Art. 75b Cst. and Art. 6 para. 1 SHA. The appellants particularly complain about the consideration of taxpayers subject to lump-sum taxation, the assessment of population growth, the sale prices, the failure to address applications concerning the excavation pit, and the rejection of evidentiary requests.

Considerations

The Federal Supreme Court entertains the appeal only to a limited extent. Complaints that were already assessed on the merits in judgment 1C_592/2017, or were not addressed due to insufficient reasoning, may no longer be reviewed, as the Federal Supreme Court and the lower court are bound by the considerations of the remittal decision. The legally binding building permit of 2012 is not the subject of the proceedings; its nullity could at most be examined as a preliminary question, which is not necessary here. Cantonal law is reviewed only under the aspect of arbitrariness, provided that a qualified statement of reasons is made (Art. 106 para. 2 FSCA, Art. 42 para. 2 FSCA).

After the remittal, the Administrative Court had to examine whether there is demand for primary residences. If demand is manifestly insufficient, a permit may be granted only where there are serious and concrete assurances of acquisition by year-round residents (BGE 144 II 49). The municipality reported five existing primary residences in the upper segment, no further permit procedures and no vacant stock; the three planned flats are therefore the only current offer. The population rose by around 0.9% between 2007 and 2017, and a population increase of 8 to 11 persons appears possible. That no sale from plan to local residents has so far succeeded is only one of several indications.

The tax or civil domicile is sufficient to determine a primary residence under Art. 2 para. 2 SHA and Art. 3 let. b RHA. The type of taxation (income or lump sum) is irrelevant. The Federal Supreme Court rejects the complaint that population growth was assessed arbitrarily: in 2017 there was…