Exemption (Building Code)

Exemption (Building Regulations) - An exemption is official permission to deviate from the provisions of a zoning plan without having to amend the plan itself. The legal basis is § 31(2) BauGB: The building authority may grant an exemption if the basic principles of the plan are not affected, the deviation is justifiable from an urban planning perspective, and the exemption is compatible with public interests after taking into account the interests of neighbors.

Requirements for an Exemption

Three cumulative requirements must be met:

1. The basic principles of the plan are not affected: The deviation must not call the basic planning concept into question. A minor exceedance of the floor area ratio (FAR) generally does not affect the basic principles, whereas a complete change in land use does. The Federal Administrative Court has interpreted the term “fundamental principles” narrowly: It depends on whether the municipality would have adopted the plan anyway had it been aware of the deviation.
2. Urban planning justifiability: The deviation must fit into the urban planning context and must not have any negative effects on the townscape or infrastructure. The standard is whether the deviation could also have been the subject of a justifiable zoning plan provision.
3. Compatibility with public interests and neighboring interests: Neighboring interests must be taken into account-the exemption must not unreasonably affect neighbors. The requirement of consideration under neighbor law also applies here.

In addition, one of three grounds for exemption must be present: Compliance with the stipulation would be disproportionate (e.g., an atypical plot shape makes compliance impossible), the deviation is in the public interest, or the deviation is justifiable from an urban planning perspective. Since the 2024 amendment to the BauGB, the last ground has become the standard case and significantly facilitates the exemption.

Typical cases of exemption in practice

• Exceeding the floor area ratio (FAR) or floor space index (FSI): Minor exceedance of 10-15% for an addition, sunroom, or terrace that appears functionally necessary
• Deviation from the roof shape: Flat roof instead of the required gable roof, provided it blends harmoniously into the townscape and the neighbors agree
• Exceeding the number of stories: Additional stepped story provided it fits in well with the urban landscape, e.g., if the surrounding buildings are multi-story anyway
• Deviation from the building line: Minor overshoot of 1-2 meters for a bay window, porch, or balcony that enhances the appearance
• Deviation in use: Commercial use on the ground floor of a general residential area, provided the use does not adversely affect the residential environment and the zoning plan was originally designed for mixed use

Distinction from deviations under the BayBO

In addition to the exemption under § 31 of the German Building Code (BauGB), there is the deviation under the Bavarian Building Code (BayBO) pursuant to Art. 63. This does not refer to the zoning plan, but rather to requirements of the Bavarian Building Code-such as setback distances, proof of parking spaces, or barrier-free access. Both instruments are independent of each other and can be applied for simultaneously: A project may require both an exemption from the zoning plan and a deviation under the BayBO. In practice, both applications are often processed together as part of the building permit procedure.

Practical Tip for Property Owners in Nuremberg and Franconia

We recommend that builders in the Nuremberg metropolitan region submit a preliminary building inquiry along with the application for exemption at an early stage when planning deviations from the zoning plan. Experience shows that the City of Nuremberg tends to rule favorably if the deviation is minor and the neighbors demonstrably consent. Obtain the written consent of the affected neighbors before submitting the application-this significantly speeds up the process and reduces the risk of an objection after approval has been granted. The fees for an exemption application in Nuremberg range from 100 to 500 euros, depending on the extent of the deviation.

Frequently Asked Questions

Am I entitled to an exemption?

Generally, no - the granting of an exemption is at the discretion of the building authority. There is no legal right to an exemption, even if all requirements are met in principle. In practice, however, discretion is often exercised in favor of the applicant if the deviation is minor, all requirements are met, and there are no objections from neighbors. We recommend submitting a well-reasoned application and, if possible, citing precedent cases from the immediate vicinity.

Can neighbors challenge an exemption?

Yes, affected neighbors can file an objection and bring a lawsuit before the administrative court against a granted exemption if their neighborly rights are violated. Violation of the duty of consideration is the most common ground for challenge-for example, if an exempted increase in the number of stories results in significant shading of the neighboring property or if an exempted change of use entails unreasonable noise emissions. Therefore, we recommend involving neighbors early on and obtaining their written consent before submitting the application.

How does an exemption differ from an exception?

An exception (Section 31(1) of the German Building Code) applies to uses that are already listed in the zoning plan as “permitted in exceptional cases”-meaning the planning authority has already taken them into account during the planning process. An exemption (Section 31(2) of the German Building Code) allows deviations from provisions not otherwise provided for in the plan. The bar for an exemption is therefore higher than for an exception: For an exception, it is sufficient that the requirements of the zoning plan are met; for an exemption, the balancing framework of § 31(2) BauGB must also be adhered to.

Exemption in Connection with Redensification and Energy-Efficient Renovation

A growing area of application for exemptions involves projects for redensification and energy-efficient renovation. Anyone wishing to install exterior insulation that slightly exceeds the permissible setback distance or floor area ratio (FAR) may apply for an exemption or a deviation under building regulations pursuant to Art. 63 BayBO. The legislature has simplified the requirements here: In Bavaria, thermal insulation layers up to 25 centimeters thick may slightly fall short of the required setbacks without requiring a formal exemption (Art. 6(7) BayBO).

In the Nuremberg metropolitan region, infill development through building additions or attic conversions is only possible with an exemption in some zoning plan areas from the 1960s and 1970s-for example, if the zoning plan stipulates two-story development, but the existing land reserve would economically allow for a third story. We recommend that owners who suspect such potential on their property submit a preliminary building inquiry to the Nuremberg Building Authority. This binding information typically costs between 200 and 500 euros but provides planning certainty before costly architectural and engineering services are commissioned. If the preliminary building inquiry is approved, land reserves can be realized that can significantly increase the property’s value.

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