Deviation from the development plan in the new construction area is possible

Dear experts,

I am new here and have a question concerning the responsibilities of authorities. I will describe a case below and would like to know which authority can make a decision here: the municipality or the district office? It concerns a property in Bavaria.

There is a qualified development plan for our new building area. The entire area is on a slope; so far, only owners on the southern slope have built. We are the first of 8 who will now build on the northern slope. By the way, it should be mentioned that last year there was an addition to the development plan and a complete new revision of the entire development plan, because among other things, for example, the heights were so poorly planned that many houses would have had to be built 80 cm below street level. Now we have submitted our plan and it was rejected. Afterwards it turned out that we were given incorrect information at the municipality regarding the interpretation of the setback areas. However, this is not the point here. The fact is that currently for our project the following setback to the north applies:

Original terrain up to the cut wall with roof skin.

Since we have a slope, this wording leads to us having to keep a 7.80 m distance backwards with our tiny house. The plot is very narrow and long, and with garage and house would actually only be built on the front third. 200 sqm in the north would not be usable.

The municipality did not want this (for the southern houses opposite the slope goes in the other direction, for them the distance to the rear neighbor is only 3 meters) and is now working on changing the development plan again, but this takes up to 6 months with all the procedures involved, and our construction is to/must start in April.

The district office (LRA) sees the case as we do and is positive towards us (which is not always the case), which is already good. Neighboring houses behind us are very far away (20 m), and so far they do not mind how many meters we come close to their property.

However, we cannot wait until the entire development plan is revised. Therefore, we would need an exception or exemption in advance. The LRA said the municipality is responsible for this and must take care of the problem. They as the LRA could not approve an exception here.

My question therefore: what is the correct term here, do I need an exception or an exemption? Or is this not possible in principle for setback areas? Can the municipality grant this to me if the 3 principles (reasons of the general public requiring the exemption or the deviation is urbanistically justifiable or the implementation of the development plan would lead to an obviously unintended hardship) are not violated, or must/can the LRA do this?

Is something like this even possible, or am I out of luck?

Best regards Jana

Isn't that part of your architect's responsibilities? You already know the paragraph in the [Baugesetzbuch]. For your building application (not the same as a waiver) a form regarding exemptions from regulations must also be submitted. The justification has already been provided.

The district office (LRA) sees the case the same way we do and is positive about it

Then they should actually take decisive action and encourage the administrative court to suspend the validity of the development plan. Unfortunately, Bavarian administrations love federalism, especially the subsidiarity principle.

My architect doesn't care, he designed a house that fits on the plot. That it now looks "weird," and one-third of the plot remains free and everything is cramped at the front, he doesn't care about that for now.

That means you would suggest submitting a building application instead of a clearing procedure. But the district office has already told us that they would reject it for exactly that reason. I guess it’s because they don’t want to make deviations/exemptions for 9 plots individually now (we would deviate from the BayBo due to the slope).

I am kind of going in circles with the authorities. The district office says the municipality has to change the zoning plan, the municipality is doing that, but it takes a very long time and I therefore need an exception/deviation/exemption so that my house, when the new zoning plan is finished, is not the only one standing differently (according to the old plan).

Then they should actually get down to business and urge the administrative court to suspend the validity of the development plan. Unfortunately, Bavarian administrations love federalism, especially the subsidiarity principle.

Oh okay, that possibility would therefore also exist....

I guess it's about the fact that they don't want to make deviations / exemptions for 9 properties individually now

They can't do that either, since the municipality is responsible. But a clever district administrator could approach the Minister-President to settle this on the golf course, or rather in the cafeteria of the Seidel Foundation.

Quickly and quietly, this only works from the top, on the political level. Through administrative channels, rejection without an exemption application is clear: the originally responsible primary stamping authority says no, so the secondary stamping authority also says no. They could veto, but conversely they are not a revision authority.

Oh okay, that option would therefore also exist....

In Bavaria, rather unlikely, there they love to strictly follow official channels. There would never have been a Karl Valentin in Cologne.

What is the correct word here, do I need an exception or an exemption?

I would say exemption (specifically from the eaves height limitation, for example). An "exception" (allowing something not permitted as an act of grace) would, I believe, be the wrong instrument here. But the most correct word is probably "specialized lawyer".

and is now about to change the development plan again, but this takes up to 6 months with all the procedures involved

Yes, then that's probably how it is. No German authority grants approval now based on framework conditions that will probably only be valid in the future. Not even if it would be a reasonable solution to anticipate that.

our construction is supposed / must start in April.

Exactly what world ends if it takes longer (which I consider highly likely)?