Increase the floor area ratio according to §19 of the Land Use Ordinance

Hello dear community,

we are getting a building plot (new development area) from a municipality in Bavaria (notarially not yet confirmed). The plot has a size of 820 sqm, a site occupancy index of 0.4 and a floor area ratio of 0.8. We have the following problem: The development plan does not restrict the number of residential units, but there is a note that 2 parking spaces must be provided per residential unit. Now we have planned several residential units and exceed our site occupancy index with regard to the parking spaces. Our architect called the municipality and encountered resistance.

According to §19 of the Federal Land Utilization Ordinance, an exceedance of the site occupancy index by 50% is possible (in our case up to a site occupancy index of 0.6) and we would be happy with that. This paragraph is not excluded in the development plan.

Our first question 1. Can the municipality reject our increase in this case (site occupancy index 0.6) or the building application or preliminary building enquiry? If yes, do they have to justify it?

2. Can one take legal action against this or does the municipality override the paragraph?

Thank you in advance

I will take the standpoint of the municipal administration.

The exceeding is a discretionary provision if there are understandable reasons for it. What do we find in your case? 1) A very generous plot ratio of 0.4 (in SH 0.2 or 0.25 are normal) 2) 820 sqm land. Thus, 328 sqm may be built upon. 3) A new development area in which one actually expects predominantly detached houses or semi-detached houses 4) Finding: If the applicant would build his plot somewhat less densely, possibly one less apartment, that would be more than enough. Here we are supposed to approve their greed for money. 5) Conclusion: There is no compelling reason to apply this discretionary provision. On 820 sqm with a plot ratio of 0.4 a viable plan is also possible for more than one residential unit 6) If the applicant does not agree, others will take the plot gladly. 7) The character of a detached or semi-detached housing development is thus preserved and is not disturbed by apartment blocks or condominium complexes.

This is roughly how they might think. What are your arguments? Lawsuits? Then you really need to have good arguments. K.

The exceedance is a discretionary provision

No, it is not a discretionary provision. It is generally permitted unless the development plan states otherwise.
... The permissible floor area may be exceeded by up to 50 percent by the floor areas of the facilities referred to in sentence 1 ...
The discretionary provision follows only after this sentence:
further exceedances of a minor extent may be permitted

I will take the standpoint of the municipal administration. The exceedance is a discretionary provision if there are understandable reasons for it. What do we find in your case? 1) A very generous floor area ratio of 0.4 (in SH, 0.2 or 0.25 is normal) 2) 820 sqm of land. Thus, 328 sqm may be built on. 3) A new development area in which one predominantly expects single-family houses or semi-detached houses 4) Observation: If the applicant would build a little less densely on his property, possibly one less apartment, that would be more than enough. We are supposed to approve their greed for money here. 5) Conclusion: There is no compelling reason to apply this discretionary provision. On 820 sqm with a floor area ratio of 0.4, a viable plan is also possible for more than one dwelling unit 6) If the applicant is not satisfied with that, others will gladly take the property. 7) The character of a single-family or semi-detached housing development is thus maintained and not disturbed by apartment blocks or condominium complexes. This is roughly what they might think. What are your arguments? Lawsuits? Then you really need good arguments. K.

Hi Nordys, can you please send us a private message? Unfortunately, I cannot contact you. I have a few questions. Thank you

Since when has the development plan been legally binding?

Should four parking spaces not be included in 328 sqm out of 820 sqm x 0.4 floor area ratio? (Three residential units / six parking spaces I also would not see as in line with a single-family house residential area). In Bavaria, there are in my opinion two ways: exemption (excluded here if planning framework is exceeded) and application, which is decided by the district office, which usually follows the vote of the municipality. So either exemption (if the building law expert agrees) or agreement with the municipality must be reached.