Zoning Plan; Preparation

Under the Building Code (BauGB), municipalities are both authorized and required to draw up land-use plans. There are two types of land-use plans:

• The land-use plan, which covers the entire municipal area but does not yet impose binding provisions on citizens (see also the entry “Land-Use Plan”).
• The development plan, which is derived from the land-use plan and is limited to parts of the municipal territory. It contains provisions that are binding on citizens and building authorities and regulates how the properties may be developed.

Zoning plans must generally be developed from the land-use plan; this means that there must be no significant contradiction in content between the zoning plan and the land-use plan. The zoning plan may include provisions regarding, for example, the type and extent of the intended building use, buildable plot areas, the location of structures, as well as public and private green spaces and traffic areas. In addition, regulations may be established, for example, regarding the planting of trees, shrubs, and other vegetation.
A distinction is made between a qualified, a project-specific, and a simple zoning plan:

A qualified zoning plan exists when the plan contains, at a minimum, provisions regarding the type and extent of building use, the areas of land available for development, and local traffic areas. If a building lot is located within the scope of a qualified zoning plan, a construction project is permissible under zoning law if it does not conflict with the provisions of the zoning plan and if the development infrastructure is secured.

Project-specific zoning plans may be adopted by municipalities based on a project and development plan agreed upon between a (private) project developer and the municipality. A prerequisite is that the project developer is willing and able to carry out the project and the development measures and commits to implementing the measures in an implementation agreement. Even within the scope of a project-based zoning plan, projects are permissible under planning law if they do not conflict with the zoning plan and if infrastructure development is secured.

Simple zoning plans are those that meet neither the requirements of a qualified zoning plan nor those of a project-based zoning plan. They generally do not conclusively regulate the admissibility of construction projects under building planning law.

Zoning plans are municipal statutes, i.e., legal norms. They are established through a procedure regulated in detail by the BauGB, which provides, among other things, for public participation.

For zoning plans for inner-city development—which concern the reuse of land, infill development, or other inner-city development measures—§ 13a of the BauGB provides for optional procedural simplifications under certain conditions. 

The provision of § 13b of the BauGB regarding the application of the expedited procedure in outlying areas was repealed as of January 1, 2024, following the Federal Administrative Court’s ruling (judgment of July 18, 2023 —Case No. 4 CN 3.22) that it was incompatible with Union law. The “remedial provision” of Section 215a of the BauGB was also introduced effective January 1, 2024. Pursuant to Section 215(3) of the BauGB, the application of procedural simplifications is subject to the corresponding application of Section 13a(2)(1) of the BauGB (waiver of early notification and discussion) in conjunction with Section 13(3), sentence 1, of the BauGB (waiver of the environmental assessment) and Section 13a(2)(4) of the BauGB (waiver of nature conservation compensation) requires that, based on a preliminary review of the individual case pursuant to Section 13a(1), second sentence, item 2 of the BauGB, the municipality conclude that the development plan is not expected to have any significant environmental impacts that would need to be taken into account in the balancing test pursuant to Section 2(4), fourth sentence, of the BauGB would need to be taken into account in the balancing of interests, or that would need to be compensated for as impairments to the landscape or to the performance and functionality of the natural ecosystem pursuant to § 1a(3) of the BauGB.

Zoning plan proceedings under Section 13b of the BauGB that were formally initiated before January 31, 22022, could be completed in accordance with § 215(3) of the BauGB, by analogy with § 13a of the BauGB, provided that the resolution to adopt the plan pursuant to § 10(1) of the BauGB was adopted by December 31, 2024.

Zoning plans that had already been adopted pursuant to Section 13b of the BauGB and were to be retroactively enacted through a supplementary procedure pursuant to Section 214(4) of the BauGB could apply Section 13a of the BauGB mutatis mutandis in accordance with Section 215(3) of the BauGB. The resolution to adopt the zoning plan pursuant to Section 10(1) of the BauGB had to be adopted by December 31, 2024.