Dispute over 400,000-ton mountain: the city of Regensburg would rather take a slacker to court than a comparison

Created: 06/29/2022, 20:14

By: Stefan Aigner

View of the controversial mountain in the Gleisdreieck.

© Schmack GmbH

With the threat of a fine of one million euros, the city of Regensburg had demanded that a property developer remove an earth wall – without success.

Regensburg – The city of Regensburg has suffered a clear defeat in the legal dispute with the property developer Ferdinand Schmack.

In the trial for an earth wall in the Gleisdreieck in the east of the city, the administrative court in Regensburg found Schmack right and overturned a removal order from the city.

The 8th chamber of the administrative court deliberated for just five minutes to reach a verdict.

Dispute over 400,000-ton mountain in Regensburg: earth wall desired by the city council

As reported, it is about an earth wall with a volume of about 230,000 cubic meters, 400,000 tons.

According to Schmack's ideas, this mountain should serve as noise protection for the "Dreibrücken" district he is planning.

In 2014, the Regensburg city council passed the resolution for a corresponding development plan - including the aforementioned mountain, a "terrain modeling" with a height of between eleven and 25 meters.

Literally it says in the unanimously passed resolution: "Excavated material from various construction measures in the city area should be deposited locally and used sensibly."

Dispute over noise protection mountain in the Gleisdreieck: Standstill for eight years

For two years, the city had initially approved the interim storage of excavated material, mostly from the nearby construction sites of the Candis district, which was built under Schmack's aegis at the time.

The associated hope: within two years the development plan for "Dreibrücken" would be completed and the mountain would then be "legalized".

But things turned out differently: Nothing has progressed for eight years.

Schmack and the responsible departments of the Regensburg city administration are blocking each other in the dispute.

Dispute over 400,000-ton mountain: City of Regensburg threatens record fines

Since the permit for interim storage expired, the city saw the mountain as "illegal waste dumping" and ordered its removal - under threat of a fine of an unprecedented record high of one million euros.

Schmack, on the other hand, went to court – value in dispute: 4.6 million euros – and was fully right on Monday.

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Already at the beginning of the hearing, the presiding judge, judge Martin Kiesl, makes it clear that the mountain is not waste.

One can only speak of waste in three cases: When someone has given up “property over something” – i.e. throws it away.

If something has to be removed – for example because it is poisonous.

Or when something has lost its original purpose and no new purpose follows.

None of this is the case with the Schmack-Berg in the Gleisdreieck.

Dispute over 400,000-ton mountain: court picks apart municipal order

According to Kiesl, there is no concrete evidence to date that there is any toxic or dangerous material in the heap of earth.

The city did not explain this either.

In addition, the future purpose of the excavation is clear - just as terrain modeling with material from nearby construction sites is clear.

This was also decided by the city council.

Even if the development plan has not yet been completed, the mountain is "tolerable according to an objective view of traffic," says Kiesl.

"From the Chamber's point of view, it makes little sense to drive something away that you then have to drive back there again."

(By the way: Our brand new Regensburg newsletter will keep you regularly informed about all the important stories from the World Heritage city and the Upper Palatinate. Register here.)

Dispute over Berg im Gleisdreieck: the court proposes a settlement

The Chamber proposes a pragmatic settlement to end the litigation in which "the parties have become wedged":

Schmack is to undertake to carry out further examinations of the excavated earth and the subsoil in order to finally rule out any danger to people and the environment.

If toxic material is found, it must be disposed of.

Then the mountain can remain - until the final conclusion of the development plan process.

The city's controversial removal order with the threat of fines would thus be off the table.

Settlement proposal in the mountain dispute: disagreement with the city administration

Ferdinand Schmack and his lawyer Dr.

After initial objections and demands, Thomas Troidl are willing to make a compromise.

But the meeting representatives of the city of Regensburg, a total of seven from different offices and departments, remain firm after the two-hour comparison talks.

It becomes clear that even within the city administration there is no clear line when it comes to Schmack-Berg.

Dominic Meyer from the mayor's office, for example, nodded in agreement several times during the court's remarks.

Occasionally it seems as if he would present the city's legal opinion rather reluctantly.

dr

Regina Elsner, head of department at the Environment Agency, on the other hand, keeps rolling her eyes and shaking her head.

A department head in the planning office repeatedly emphasizes that they are "still oriented towards a constructive solution", but that Schmack could have carried out the necessary tests a long time ago.

Settlement proposal in the mountain dispute: judge criticizes urban attitude

"We don't know what else is in the mountain," they say.

There are also ambiguities with the subsoil and with the statics.

The mountain may pose a risk to people and the environment.

No, to be on the safe side, you need a legally binding removal order - even in the case of a settlement - in order to be able to draw it if necessary.

Judge Martin Kiesl straddles at some point in between.

"Why hasn't the city ordered rehearsals in eight years?" he asks.

And: If the city fears that the mountain could pose a hazard, why isn't a disposal order being issued on this basis, but with an unsustainable legal justification for waste?

The city officials have yet to give a real answer.

However, they make it clear that the settlement proposed by the court is not acceptable to them.

The disposal order should remain – for safety, so to speak.

Even more persuasion from judge Kiesl doesn't help.

Settlement proposal in the mountain dispute: the city prefers to accept defeat

According to Kiesl, the city is demanding a "stock disposal order", which is not usual in a settlement, and on the other hand it means an extremely uncertain legal position for Schmack.

"I wouldn't do that either." If the city doesn't move away from this position, then the chamber would just have to make a judgment.

The legal officer Dr.

Wolfgang Boeckh, one of the highest municipal officials, finally explains: "Then a verdict." Five minutes later, the predictable court defeat follows, which should hit the municipal office with around 50,000 euros.

"We have tried to reach an agreement," concludes Chairman Kiesl.

"Unfortunately, that didn't work out." But the two parties are not prevented from continuing to try.

After defeat in the mountain dispute: the city of Regensburg remains unclear

After the verdict, Ferdinand Schmack and Dominic Meyer from the mayor's office are already back together.

It is said that both sides are interested in a solution.

Efforts will now be made to implement the court's settlement proposal after all.

Against this background, was this legal dispute and the insistence on a judgment necessary?

Sometimes you have to go to the courts to get clear words, says von Meyer.

Will there be action against the decision of the administrative court?

That will be checked.

The unclear line within the Regensburg city administration has at least endured.