“I have lost my faith in the rule of law”

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The Zurkirchen family fulfills all the clichés of a down-to-earth Swiss family. Two kids, one house. Honorary positions in the ski club, in the rifle club and in the fire department. But their idyll has cracked in the past three years. “I have lost my faith in the rule of law,” says Beat Zurkirchen. He of all men. As a police officer, he represents the state. But now he only communicates with the authorities through a lawyer.

What happened? Fast forward to 2013. Switzerland debated urban sprawl. For decades, too much building land has been zoned without a plan or measure. Have farmers become millionaires overnight? Their meadows and fields were gilded, even where it made little sense from a planning point of view, went against nature and landscape protection, or where the zoned land was poorly connected to public transport.

This is what happened in Schwarzenberg, Lucerne, the home of Marianne and Beat Zurkirchen. A village nestled between the rocky ridge of Mount Pilatus and the pretty hills of nearby Entlebuch. Although only a few minutes drive from Lucerne, it still offers seclusion.

500 affected communities

In the spring of 2013, a majority of Swiss voters voted to tighten up the law on spatial planning. Stop urban sprawl – what could be wrong with that? So did the Zurkirchens. Little did they know that the decision would affect them seven years later.

The new spatial planning law required all cantons to adapt their building zones to the “probable needs” of the next 15 years. Since then, municipalities may only allocate as much building land as they need for their growth.

Nearly 500 towns in rural Switzerland are affected, the observer calculated together with real estate advisor Wüest Partner. In total, this concerns building land worth around seven billion Swiss francs. The losers are landowners who bought or inherited their land in one of the 500 communities and didn’t build fast enough. Because the villages have to convert surplus building land into relatively worthless agricultural areas. The technical term for this is repurposing. This affects not only real estate speculators who have hoarded building land and hoped for an increase in value, but also ordinary landowners such as the Zurkirchens.

Delicate intervention

Many cantons are therefore hesitant to implement it. You don’t want to burn your fingers on the delicate encroachment of the terrain. It is, after all, the most sacred commodity of the market economy. In addition, most owners should not be compensated for the enormous loss of value of their property, even if they legally acquired their building land and paid taxes for years. Because according to the Federal Supreme Court, many of the zoning laws were illegal and the properties should never have been built on land.

The canton of Lucerne is a pioneer. In January 2020, he presented Switzerland’s first repurposing strategy. The canton has calculated how many square meters must be reallocated in the individual municipalities. Schwarzenberg was told that 39,000 square meters of building land should be assigned to a “non-construction zone”. A shock to the community. A shock for the Zurkirchen family as well. It hit her the hardest. About 3,000 square meters of their land with an estimated value of CHF 1.5 million will be repurposed. It’s not just about the money, says Beat Zurkirchen. The two sons would have liked to move on the property. They are firmly rooted in the village.

The decision is not yet final. Ultimately, any repurposing must be approved by the city council. The municipal council can object in advance to the canton’s proposals and, for example, question the proportionality of the measure for individual buildings.

politicians benefited

Not everyone seems to benefit equally from social involvement. Many owners who have not been given a chance feel unfairly treated, some even betrayed. The Observer has followed the haggling for square meters of building land in the village in recent years. Again and again we exchanged ideas with landowners, community representatives and cantons and attended community meetings.

Stories such as that of the municipal council, which is responsible for the “Construction and Environment” file and politicians for the center in the Lucerne cantonal council, have fueled distrust. Two and a half years ago, the “Observer” revealed that his father had given him a large plot of building land – shortly after meeting with the mayor and local planner to discuss possible rezoning areas. The canton considers repurposing unreasonable for properties that have recently changed hands. When his father transferred the piece of land to him, the central cantonal council became a “new owner” in time. Only after the “observer” reported on the horse trade was the lot reassigned to the rezoning areas.

Controversial building permit

Now new research shows: In the summer of 2021, the city council issued planning permission for four single-family homes – on a meadow in Eigenthal, the most idyllic part of the village of Schwarzenberg, which has not been built on for decades, overlooking a protected moorland and Mount Pilate. Exactly where building is no longer allowed, according to Lukas Bühlmann, one of Switzerland’s most renowned spatial planning experts. Bühlmann was director of the Espace Suisse spatial planning association for many years and wrote an expert opinion on Lucerne’s redevelopment strategy.

The canton had also marked the land as a redevelopment area. However, the community argued with “lack of proportionality” – and seems to get away with it. Unlike the Zurkirchen family.

Explosive: One of the most influential businessmen in the region benefits from the municipality’s intervention. He was CEO and chairman of a billion dollar company that is a major employer. He also owns a local mineral spring. At the neighborhood meeting last summer, when the rezoning areas were discussed, his mineral water was distributed in the multipurpose room to refresh voters. Free. He was not there himself.

Zurkirchen denounces unequal treatment

“I don’t like this unequal treatment,” says Beat Zurkirchen. “I have nothing against those single-family homes, but then I want to be allowed to build them.”

Questions from the observer were undesirable at the neighborhood meeting. The former landowners, who had sold the building plot to the entrepreneur, left the event early, brushing off the journalist’s questions. The entrepreneur himself also did not want to comment on the matter with reference to “the ongoing procedure”, as his personal assistant had agreed.

Municipal chairman Markus Stofer writes that the municipality campaigned equally intensively for all landowners. However, one could hardly have any say in determining the areas. The repurposing was “actually completely determined by the canton”. “Every play area” was used so that no further areas had to be rearranged. About the businessman’s property, Stofer writes that he still owns a plot on which construction is not allowed. “As a result, about half of his building land, like many others, was repurposed.”

Frustrated authorities and embittered landowners

The hopes of the Zurkirchen family now lie with the Lucerne Government Council and the Federal Supreme Court. Village voters maintained their appeal against the rezoning of their property. In this way, the government council – contrary to the proposal of the municipality – could save your building land. The decision is still pending.

The Zurkirchens have also objected to the planning permission for the planned single-family homes of the wealthy businessman. If these plots were to be reallocated, their land could be spared, argue Beat and Marianne Zurkirchen’s lawyer. The case is now in the Federal Supreme Court after the Cantonal Court of Lucerne rejected the case at first instance. It concluded that the Zurkirchens were not entitled to object because there was no “interaction between the properties”. Even if the businessman’s land were zoned, that would not mean that the land of the Zurkirchens would remain building land.

Whatever the Federal Supreme Court decides, Schwarzenberg’s example shows that correcting errors in land use planning and cracking down on urban sprawl is frowned upon. Repurposing can only succeed if the public compensates the affected landowners, says Alain Griffel, a professor of constitutional law at the University of Zurich who specializes in land use law. Otherwise the project threatens to fail, he recently wrote in a professional article. “The most likely scenario: In terms of repurposing, everything remains more or less the same, with a lot of collateral damage in the form of countless objections, frustrated authorities and embittered landowners who have lost faith in the rule of law forever.”

Source:Blick