Townscape protection disregarded. Administrative court upholds complaint against municipal council.

In addition to picturesque village centers, Zurich’s buildings have now also been scrutinized – and a very large number have been found to be worthy of protection or at least noteworthy. Almost the entire city was included in the ISOS. In Zurich, the decision leaked out in 2016 – and it caught the municipal council’s committee, which had been working on a revision of the building and zoning regulations (BZO) for a long time and in depth, rather unprepared. How should the new federal requirements be dealt with?

The city council took a relatively pragmatic approach to the problem: After all, the Isos was only directly applicable to federal buildings; in the case of municipal and cantonal planning, it was sufficient to “take into account” the federal inventory. This could be achieved by listing possible conflicts in relation to the Isos and showing which other interests stand in the way of direct application. These could be interests in densification, but also the construction of non-profit apartments. Moreover, the matter is not urgent: as there are no significant rezonings or upzonings with the current BZO revision, potential conflicts between the Isos and local regulations would not be exacerbated.

Now a recent legal case shows that the city council gave the municipal council somewhat superficial advice. Some residents in the wider vicinity of Spyriplatz in the Fluntern district have filed a complaint against the rezoning of the area from a three-storey to a four-storey residential zone. The building appeals court rejected the application, but the administrative court has now upheld the corresponding complaints. The residents had complained that the interests of the Iso had not been given due consideration in the rezoning. The Administrative Court agrees with this assessment: The Isos must also be given sufficient consideration in municipal planning. This is particularly important for buildings that are listed in the Isos with conservation objective A (preservation of substance). This is the case in the disputed area.

The court now finds that the city only did this in a very sweeping manner. Although the properties had been listed, in the event of a conflict “without exception, a decision was made against the changes suggested by the Isos – and always with the same stereotypical justification”. This even happened where there was only zoning that was incompatible with the Isos – and no other conflicting interests. The municipal council’s BZO determination will now be revoked, as will the corresponding approval from the cantonal building department. The municipal council must re-examine the matter, give due consideration to the Isos and, if necessary, establish a core zone instead of residential zone 4.

The ruling is not yet legally binding. The majority of the municipal council’s office is requesting that the decision be referred to the Federal Supreme Court.

Judgment VB 2018.540 of 9.1.2020.

Kälin, Adi. 2020. “Local image protection disregarded” Neue Zürcher Zeitung, February 31

Online article of the NZZ