Further procedure in case of rejection of the preliminary building inquiry

Hello,

I am new here. My boyfriend and I want to build and now I have to give a bit more background.

My parents built a house in a (very) rural new housing development in the 1970s. At that time, the usual plot size was 800 - 1,000 sqm. A development plan was drawn up but was never approved; so it does not exist.
My parents’ plot is 866 sqm; later my brother also bought a strip of land next door of 160 sqm. Total plot area is thus 1,026 sqm.
On that is a single-family house with a floor area of 160 sqm (back then it had to be built as a bungalow; no one knew the development plan was obsolete), with an attic above. So relatively large floor area.

Now we want to build a second single-family house on the land (100 sqm floor area). First, I went to the municipal building authority and asked how it looks. The answer: “I see no problems, that fits very well into the concept of infill development that we are currently pursuing in the municipality.” We have to observe the setback areas and otherwise §34 of the Building Code applies, since there is no development plan.

So we were happy, submitted a very well-prepared preliminary building enquiry and then came the first “uhh, I see problems there.”

We are at the limit of the floor area ratio of the surrounding development, at 0.3 (old building and new building together, the plot remains united, no separation), the built-up area is 0.45 and thus still within the permissible limit of +50%.
In the municipality’s “infill development” project, floor area ratios of 0.4 and 0.6 are specified. Just for your information (not our district).

Floor space ratio is not decisive for the new building (information from the district building authority), we are slightly above those of the neighbours, but that is understandable since, as mentioned, this is a bungalow area from the 1970s.

We have observed all setback distances (of course!)

One neighbour is completely against our building project; he simply does not want another house there; it is too close for him.

Two days ago there was a municipal council meeting and we were immediately rejected with reference to §35, Insertion Law. There was no real discussion or vote, the mayor basically made it clear during the reading how to vote. So the request was rejected with one dissenting vote.

We are now waiting for the official minutes and the (hopefully) included reasoning.

For us, the whole thing is incomprehensible; we comply with all requirements, our house is 60 cm lower than the neighbour’s (the one who does not want us there), we also adapted visually (we would have preferred a modern cube, but now with a pitched roof to fit in).
Also, with the background knowledge that there are no building plots available in the municipality and probably none to be obtained soon and that the infill development (also encouraged by the state of Bavaria) is being pursued, we really do not understand the decision.
Two single-family houses on just over 1,000 sqm is really not “tight.”

What we know is that the said neighbour obviously intervened strongly (no idea who knows whom better etc.) and we suspect that this is one reason for the rejection.

We do not want to accept this and are not entirely sure how to proceed now:

Contact the superior district office right away? But they will ask the municipality why it was rejected, won’t they? Or can I simply clarify fundamental questions with them about what is possible, what we have to observe, where there are difficulties in their view?

The architect advises us to first seek dialogue with the municipality and come to an agreement here. I am a bit sceptical whether they will really accommodate us, because with the (subjective) decision that the house does not fit into the existing ensemble, they can always reject us.

What is the most sensible course of action here?
Has anyone experienced something similar and can share experience?
Are there legal professionals who can tell me whose statement is ultimately binding?

What I really do not want, but am already considering as a last resort, is a lawsuit, because if there are no facts against the building and there are plenty of examples in the settlement itself and throughout the municipality where much more “daring” building projects have been realized, that would also be worth considering for me. What are the chances of success when fighting a resisting municipality here?

Phew, long story, many thanks to everyone who has read this far and who may even reveal a few tips and tricks for the best course of action.

Thanks!

Climbee

If you are not afraid of the costs, there are large law firms specializing in public construction and planning law that have experience up to the European Court of Justice. If you choose one of the Top 5, they could "show the municipality a way how your project can be approved." Of course, they cannot perform miracles, but if it is important to you, a first consultation might be a worthwhile investment.

Really bring out the big guns right away? As I said, that would be my last resort...

It should only show an alternative to the official procedure. I don't know how fast they work with you, with us a simple preliminary building inquiry takes 3-6 months, but there are also cases of 9 months. It depends on how urgent you are with your building project.

I also wouldn't pursue a lawsuit. But an administrative lawyer will tell you whether your situation is clear-cut (for or against you), or whether there is room for discretion and the outcome would be uncertain.

But I believe that experience reports from other building areas will help you little. Because in our experience, it depends on the local conditions (surrounding buildings, urban planning, etc.).

if the unwilling neighbor is the mayor's best regulars buddy, you'll probably have to wield the big court spatula. on the other hand, you also have to rethink the neighbor’s perspective on what the new house means for him. his house has been standing there vacant for 45 years and suddenly you want to put a house right in front of his door. you wouldn’t be happy about that either and would make a big fuss. the rejection definitely comes from the neighbor.

I also believe that the neighbor is involved. However, this probably also means that with support, the construction can be approved.