It is indeed. However, it is not excluded by your development plan.
Do you have the file reference number for that?
That is not wrong either. But from the perspective of planning law, i.e. in terms of the Land Use Ordinance and the development plan, it is not a semi-detached house.
Where did you read that? To my knowledge, the regulations have been somewhat relaxed regarding exceptions and substitutions. However, the obligation has basically remained.
One of these rulings:
On the distinction between semi-detached and multi-family houses (OVG Hamburg, 09.04.2010 – 2 Bs 49/10)
As the appellate court already stated in its decision between the parties dated 05.06.2009, the instrument of the two-unit clause and the simultaneous structuring of house types according to § 22 para. 2 sentence 2 Land Use Ordinance 1977, which only permits detached and semi-detached houses, does not exclude erecting a building on a plot that consists of several attached, each functionally independent buildings, each of which in turn comprises two residential units. This results from the exclusively open-style oriented interpretation of the planning law concept of the detached house in § 22 Land Use Ordinance as a building free-standing on all sides (cf. only Fickert/Fieseler, Land Use Ordinance, 11th edition 2008, § 22 para. 6.2 with further references) on the one hand, and the interpretation of the planning law concept of the building underlying the two-unit clause as a building structure independently usable (cf. OVG Hamburg, decision of 28.1.2008, 4 Bs 207/07; OVG Münster, decision of 12.3.2001, BauR 2001, 1238; Gierke in: Brügelmann, Building Code, vol. 2, as of October 2009, § 9 para. 167; Lechner in: Simon/Busse, Bavarian Building Ordinance, as of December 2009, Art. 2 para. 513; see also Federal Administrative Court, decision of 13.12.1995, NVwZ 1996, 787) on the other hand.
That the two-unit clause stipulated here in the development plan may still find its enabling basis in § 3 para. 4 Land Use Ordinance 1977 does not justify a different decision contrary to the view of the administrative court. Although the administrative court must be conceded that § 3 para. 4 Land Use Ordinance 1977 pursued the purpose of promoting the creation of family homes under the Second Housing Construction Act in accordance with the requirement in § 89 para. 3 Second Housing Construction Act in planning law terms, the term residential building in § 3 para. 4 Land Use Ordinance 1977 cannot be interpreted in light of the housing law definition of the family home. According to § 7 para. 1 Second Housing Construction Act, family homes were, among others, owner-occupied homes. These were defined in § 9 para. 1 Second Housing Construction Act as a plot owned by a natural person with a residential building containing no more than two apartments, one of which was intended to be occupied by the owner or his relatives. In accordance with the purpose of the law laid down in § 1 para. 2 sentence 1 Second Housing Construction Act, to provide individual ownership to broad segments of the population, the plot was thus only allowed to be developed with a single residential building with a maximum of two apartments or—in corresponding application of § 9 para. 1 Second Housing Construction Act—with two residential buildings each having one apartment (cf. Federal Administrative Court, judgment of 3.12.1975, BVerwGE 50, 21; Pergande in: Fischer-Dieskau/Pergande/Schwender, Housing Law, as of November 2008, vol. 2, § 9 Second Housing Construction Act para. 1.3). As a result, the number of permitted apartments was limited in relation to the plot. However, an interpretation oriented towards this would contradict the wording of § 3 para. 4 Land Use Ordinance 1977. The Federal Administrative Court has already stated that the number of apartments in the enabling provision of § 3 para. 4 Land Use Ordinance 1977 is textually and grammatically clearly and exclusively related to the respective residential building, and the two-unit clause also in combination with the designation "detached houses" offers no means for the planning goal to allow only a single residential building with a maximum of two apartments on a plot (cf. Federal Administrative Court, decision of 31.1.1995, BauR 1995, 351). This excludes an interpretation of the term residential building which, following the housing law term family home, results in a plot-related restriction on the number of apartments. Incidentally, the plan author also assumed this when stipulating the two-unit clause in the development plan; for the reasoning to the development plan (Bü-Drs. 2574, p. 16) explicitly states that the clause differs from the previous designation in the building phase plan in that the regulation is to be applied not to the plot but to the residential building.
Furthermore, contrary to the view of the administrative court, there is no reason to define the term residential building in § 3 para. 4 Land Use Ordinance 1977 differently from the case law of the Federal Administrative Court concerning the building concept in § 13 Land Use Ordinance (decision of 13.12.1995, loc. cit.). Both provisions are located in the first section of the Land Use Ordinance, which regulates the type of structural use. Therefore, it is hardly conceivable that the term also includes certain requirements regarding the structural design. Nor does general language perception require that a building is fundamentally understood as a structure that is free-standing on all sides. Hence, for a residential building within the meaning of § 3 para. 4 Land Use Ordinance 1977, it is necessary but also sufficient that it is independently usable. Whether the independent units are each single free-standing buildings or several buildings joined together to form one structure is irrelevant. This is also demonstrated by § 22 para. 2 Land Use Ordinance, for which it is clearly irrelevant whether buildings are erected as detached houses, semi-detached houses, or house groups.
b) Accordingly, the respondents and the third party correctly argued in their complaints that the approved project is to be assessed as an attached complex of two residential buildings. The two halves are structurally separated by a joint extending from the ridge of the roof to the basement ceiling, as approved in the construction documents with the supplementary decision No. 1 dated 5 January 2010, and each has all the facilities required for independent use. In particular, each semi-detached house half has its own entrance and its own stairwell as well as its own heating and connection room in the basement, its own storage rooms, and its own access tunnel to the underground garage. Only the underground garage itself is not structurally divided and is used jointly, which is immaterial in any case, since parking spaces necessary as ancillary facilities for residential use do not need to be located in the building. Contrary to the view of the applicant, it is furthermore irrelevant whether the northern wall of the southern semi-detached half, formed with only about 11 cm thickness according to the solely relevant approved construction documents here, is subject to the building code requirements for an external or firewall (§§ 26, 28 Hamburg Building Code) and possibly fulfills them. Although the delimiting criterion of independent usability is derived from the building code definition of a building (here § 2 para. 2 Hamburg Building Code) (cf. Federal Administrative Court, decision of 13.12.1995, loc. cit.), the functional independence in planning law terms is not identical to that in building code terms and in particular probably does not require that the building structure fulfills all building and safety requirements necessary for independence under building code law.
c) According to this, if the disputed project turns out to be consistent with the plan concerning the two-unit clause contrary to the administrative court’s opinion, then there is also no indication of any violation of the applicant’s subjective rights. Unlike in the previous case 2 Bs 26/09 (decision of 5.6.2009, loc. cit.), which concerned the approval of a multi-family house with five residential units via exemption, a violation of the applicant’s claim to maintain the typical character of the development area pursuant to § 15 para. 1 sentence 1 Land Use Ordinance does not come into consideration here. As the reasoning to the development plan (Bü-Drs. 14/2574 pp. 15 et seq.) shows, the character of the area at the time of plan preparation was mainly shaped by detached and semi-detached one- and two-story single-family houses but was already also shaped by some semi-detached houses. With the stipulation of the two-unit clause, the plan author wished to prevent what was considered an urban planning misdevelopment — the intrusion of socio-culturally alien multi-family houses — and to secure the structure and character of the area as an area reserved for the specific residential form of the family home. That a family home development cannot be planned purely in its housing law form due to the plot-related inexistence of the two-unit clause was known to the plan author according to the reasoning of the development plan already outlined above (under II. 2. a). The project of the third party does not contradict this so understood character of the area according to its intended purpose. A contradiction to the character of the development area within the meaning of § 15 para. 1 sentence 1 Land Use Ordinance exists only if the building structure deviates unreasonably from the area structure and thus obviously falls outside the framework set by the plan author, i.e., if the unreasonableness is obvious upon objective consideration (cf. OVG Hamburg, decision of 4.5.2009, NordÖR 2009, 308, 310 with further references). This cannot be said here. The project is externally not difficult to recognize as a building structure consisting of two functionally independent buildings, because it has two entrances. This appearance will be reinforced by the fact that the entrances are located on different sides of the building and therefore different accesses are necessary. The impression of a multi-family house contradicting the character of the area, which is typically characterized by a shared main entrance, cannot arise in this way. As a regulation relating to the type of structural use, § 15 para. 1 sentence 1 Land Use Ordinance is generally not an instrument to prevent a project that is negatively notable in terms of construction volume. A contradiction to the character of the development area with regard to the feature of extent can be affirmed only when quantity turns into quality, i.e., when the extent of the building structure affects the type of structural use (cf. Federal Administrative Court, judgment of 16.3.1995, NVwZ 1995, 899, 900; OVG Hamburg, decision of 4.5.2009, loc. cit.). This also cannot be spoken of here.
III.
The decision on costs follows from §§ 154 para. 1, 162 para. 3 VwGO. Regarding the out-of-court costs of the third party in the first instance proceedings, a discretionary decision in their favor is not indicated, as their legal representative only appeared with a written submission received by the administrative court on 15 February 2010, and thus after dispatch of the contested decision.
The determination of the value in dispute is based on §§ 53 para. 2 no. 2, 52 para. 1 GKG.