Is a building load possible despite designation?

Hello,

I have a question related to zoning.

The following scenario: Two plots of land lie next to each other.
One plot is building land.
The other plot is garden land and is subject to a zoning designation.

Is it permissible to undershoot the 3-meter boundary distance on the building land (on the side adjacent to the garden land) by acquiring that garden land ("granting oneself a building encumbrance")?

Without the zoning designation, this could clearly be answered with "yes," but I wonder if the zoning plays a role in this context. I know that a procedure for rezoning/derezzoning can be undertaken, but that involves costs and—what is much worse—at least half a year of time.

Ultimately, the construction remains on the building plot, but there are the most amazing things that a layperson cannot even imagine...

Thanks and regards

What is the garden land designated as?
Railway?

Hello sirhc,

there should be a description for the dedication, possibly also a sketch showing which part of the property is dedicated. If the entire property or the area of the easement is affected, discuss with the building authority whether the easement affects the dedication.

Best regards
Dirk Grafe

Correct, railway. It concerns the entire property. The building authority has rejected or not accepted a building inquiry, with the reason being that the boundary distance was undershot, as I am (still) not the owner of the garden land. According to this, I would first have to buy it in order to get a statement from the building authority, which would then ultimately result in "no, we do not approve the undershooting of the boundary distance, as there is a designation on it."

Railway law is a difficult matter, with many pitfalls. The average lawyer usually has no idea about it. Municipalities and districts have already suffered setbacks and torn up roads again and laid tracks again for hundreds of thousands of euros. Ministries have decommissioned areas that should not have been decommissioned, judges have declared this permissible in the first instance, etc. Therefore: proceed with caution!

I assume the railway line is decommissioned and the tracks removed?

Nevertheless, THERE MIGHT BE (and I do not know exactly, I am not an expert in railway law) for example a distance regulation that buildings must maintain from a railway facility. The same exists, for example, for state and federal roads as well as motorways.

It also depends on whether it is a federal railway (the usual case) or a state railway. I have browsed a bit through the various railway laws and found various distance regulations there. Whether they are valid for this - no idea, but it could be.

So the route runs behind the properties and is not decommissioned. However, the building plot has a building window and that is where we want to operate - it is merely about minimizing the boundary distance. The second plot with the designation is garden land and cannot be built on anyway.