Approved preliminary inquiry

The dispute involved two plots of land and a narrow third plot on the edge of the forest, which was not suitable for building over. In 2013, the then owner of the municipality presented a project with two multi-family houses, which provided for a transfer of building mass from the forest parcel to the other two plots. With a view to a sale, it asked the municipality for a binding preliminary decision on the transfer of building mass, which was granted to it except for the planned common staircase of both buildings.

Construction mass transfer limited to 20 percent

Now the building land was sold and the new owner had a project designed, which provided two separate stairs instead of the common staircase. However, the municipality refused the building permit and justified the rejection with the planned transfer of 30 percent of the building mass: the concentration of the building substance was to be avoided in order to avoid an aesthetically disruptive building wall between the neighbouring residential buildings and the forest - usually the authority did not permit a transfer of more than 20 percent of the building mass. 

Encroachment on freedom of ownership

After negative rulings by the building appeals court of the Canton of Zurich and later by the cantonal administrative court, the Federal Supreme Court hardly even came to the conclusion that the Meilemer building authority had spanned the arch. Even if there was a public interest in an economical use of the land and thus the exhaustion of the maximum building mass (cf. BGE 142 II 100 E.4.6), aesthetic justifications for a reduction of building mass would only be effective if public interests of higher importance such as the protection of historical monuments came into play (BGE 101 Ia 223 E.6c). The fact that the planned buildings appear too bulky, do not fit into the surroundings and would also overuse the area, as the building authorities argued, could not be convinced by the Federal Court: the planned buildings would integrate harmoniously into the settlement area. According to the highest court, the refusal to grant a building permit on the grounds of an excessive transfer of building mass was a disproportionate encroachment on freedom of ownership.

The client was represented by the famous building lawyer Felix Huber, who is regarded as an absolute specialist for public and private building law.

What does "building mass" mean?

The building mass stands for the sum of all above-ground volumes of a building above the grown terrain that are used for residential purposes. For the ancillary rooms (e.g. garage) there is usually an additional building mass figure available.

What does building mass transfer mean?

We speak of building mass transfer when, under certain conditions, the possible building mass of one plot of land is transferred to another. In general, the building mass can only be transferred in the same building zone. In addition, the recipient property must be at a reasonable distance. A transfer of building mass from Oerlikon to Albisrieden in the municipality of Zurich is not possible, despite the fact that the building zone is the same. There is no exact distance measurement, one assumes a radius of approx. 300 m as the crow flies. However, the rule of thumb is not legally secure.