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No retail exclusion in accelerated procedure

17. February 2023
From Probandt
Reading time: ca. 1 Minute

Land-use plans for internal development can be drawn up in an accelerated procedure. In this case, the municipality can shorten the participations, environmental assessment and environmental report are omitted and a conflicting land use plan only has to be adjusted by way of administrative correction.
However, this is only permissible for the reclamation of land, redensification or other measures of internal development (Section 13a (1) sentence 1 BauGB). The development plan must therefore create the legal basis for internal development measures in the planning area itself. It is not sufficient if only indirectly the inner development in other parts of the settlement area is to be positively influenced.
For this reason, the accelerated procedure is not open to a mere retail exclusion pursuant to Section 9 (2a) BauGB. With such a "sectoral" development plan, retail trade in the planned area is only regulated, generally excluded, in order to secure the retail trade stock outside the planned area, primarily in central supply areas, or to direct settlement projects there. This is not permissible in the accelerated procedure - according to the Federal Administrative Court in its decision of June 29, 2021 (file number 4 CN 6/19).
However, a reinterpretation of an accelerated into a simplified building permit procedure according to § 13 BauGB is not possible, because both procedures differ considerably with regard to their prerequisites as well as their legal consequences. This has now been decided by the VGH Munich (08.11.2022 - 9 NE 22.2048, marginal no. 32 ff.).
If you have any questions on this subject, please contact Dr. Haaß.

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