VGH Hessen, decision dated August 24, 2012 – 3 A 565/12

Disputed decision by the Administrative Court Frankfurt concerning the high-rise building Eschersheimer Landstraße 14 rescinded by the Hessian Administrative Court of Appeals.

HEAD NOTE

Even in the case of very far-reaching exemptions from the specifications of the development plan, it is decisive in connection with neighborhood lawsuits that a statute protecting neighbors was violated by the building permit.

FACTS

The existing high-rise building at Eschersheimer Landstraße 14 in Frankfurt/Main was approved by the City of Frankfurt in construction permit proceedings in 1974.

The municipality as the building supervisory authority had granted far-reaching exemptions from the specifications of the development plan from 1969 (statutory resolution) in this context. The floor space ratio (GFZ) was, inter alia, increased from 2.0 to 7.06 and the size coverage ratio (GRZ) was changed from 0.6 to 0.71 and instead of an area allocation “common use: parking structure”, the exemption made a use as a commercial and office building possible. Subsequently, an about 22 floor highrise building was built on that site in accordance with the building permit.

After an eventful history, the high-rise building was now meant to undergo a reconstruction and revitalization. For this purpose, the owner of the real property applied for a construction permit for various extensions for the existing building in 2008. Against the building permit issued for this by the City of Frankfurt, a neighbor, owner of a real property built upon with a six-floor residential and commercial building, filed an objection and subsequently a lawsuit.

The Administrative Court Frankfurt (VG) upheld the complaint and cancelled the construction permit. In this context, the VG expressly not only included the current construction application but also the exemption from 1974 in the review and found that it was void, since it violated the basic features of the planning in the development plan. Therefore, the requested new construction permit had to be cancelled, since it was based on the original construction permit. The builder and the City of Frankfurt filed an appeal against this decision.

CONTENT AND SUBJECT OF THE DECISION

The Hessian Administrative Court of Appeals (VGH) now cancelled this decision and dismissed the neighbors’ lawsuit. The VGH does not consider the suing neighbors violated in their rights through the contested construction permit. The VGH emphasizes that only the violation of subjective neighbor rights could be the subject matter of the legal dispute and that therefore only the current permit for the extensions from 2009 was subject to legal review.

Background for this is that it is not only decisive for an administrative court review that the contested administrative act objectively violates applicable law, i.e. is illegal, but that it also violates specifically the subjective rights of the plaintiffs at the same time.

This is not always automatically the case, specifically in building law. A violation of a so-called neighborprotecting statute is required there so that a neighbor can successfully proceed against a construction permit. Therefore, not every legal “defect” of an administrative act leads to its contestability and a successful lawsuit by a neighbor.

The VG Frankfurt was well aware of this distinction and argued not only with the illegality, but also with the invalidity of the previous exemption. An administrative act is void, if it suffers from an obvious and particularly sever defect (Section 44 of the Administrative Procedure Act (VwVfG)). According to the VG, the exemption violated the neighbor-protecting rule of considerateness in several ways (Section 15 of the Building Usage Directive, BauNVO)).

The VG Frankfurt described the historical exemption and the construction permit based thereon even as an “act of pure arbitrariness”. This may be a somewhat strong wording, but there are certainly factual reasons to consider it at least illegal. The reason for this is that an exemption may be granted pursuant to Section 31 paragraph 2 of the German Building Act (BauGB) only if “the basic features of the planning are not affected”. Those may be violated by a high-rise building in an area, where a development plan provides for buildings with a maximum of 4 to 5 floors.

Since the decision of the VGH is currently available only in the form of a short summary of a VGH press release, it is still unclear, how the VGH dealt with this argument. However, the VGH already expressed doubts in its resolution allowing the appeal dated 1 March 2012, whether “through this legal construct, the area of subjective legal protection” stipulated in Section 113 paragraph 1 sentence 1 of the Administrative Court Act (VwGO) and Section 31 paragraph 2 BauGB are left and “objective legal control” is exercised “in an unpermitted manner”.

According to the VGH, the also approved use of the neighboring building with a large-area advertising installation, which would have to be dispensed with in the future due to the extension, was not taken into consideration. Even though this use was permitted by building authorities, the building permit for the advertising installation had been issued at the time with an express reservation to revoke it. Insofar, the neighbor could not rely on the use being possible at all times.

Also negative for the suing neighbor was the fact that the legal predecessors of the two real property owners had already concluded an agreement about an extension in 1956, which was attributable to the plaintiff today, since he knew about it at the time of acquisition.

An appeal on grounds of law was not admitted, however, a non-admission complaint is possible, about which the Federal Administrative Court in Leipzig would decide. Insofar, the future of the proceedings is still open.

IMPACT ON DAY-TO-DAY BUSINESS

The initial decision of the Administrative Court Frankfurt had led to larger tremors in the industry. The Frankfurter Allgemeine Zeitung (FAZ) assumed “several hundred similar cases” in Frankfurt alone. The reason for this is the permit practice during the 1960ies and 1970ies, where the requirements of development plans had been modified with generous exemptions (e.g. commercial use instead of residential, higher usage ratio, etc.).

Many of the buildings and particularly office highrise buildings from that time are currently up for revitalization and the construction permit question comes up again. Project developers usually assume that the present use and cubage (particularly the height and number of floors) are permitted at the respective site and enjoy grandfathering protection. Current construction permit proceedings are thus limited to the revitalization measures or any extensions, however, specifically not to the fundamental use and ability to build on the real property in its present condition.

If the decision of the VG Frankfurt had been upheld, many planned revitalization projects would have had to be reviewed again and in depth – also specifically in respect to the economically highly-relevant parameters cubage and use – and at worst may not have been realizable in the end.