A citizens’ initiative in Heilbronn is calling for an upper limit for kebab stalls in the city center. The local CDU shares this demand. However, there is much to suggest that such a limit is hardly legally feasible, explains Patrick Heinemann.
According to the Heilbronn city initiative, there are too many kebab shops, nail salons and barbershops in the city center. Therefore, there should now be an upper limit. A report from PWC, the results of which were presented by the Heilbronn city initiative in September, is supposed to explain the legal permissibility of this undertaking. On LTOHowever, the initiative did not want to release the report when asked. Shortly before the Baden-Württemberg local elections in June 2024, the Heilbronn CDU attracted attention with its demand for an upper limit on kebabs. In the SPD-led town hall, however, people doubt whether blanket upper limits for individual types of commercial businesses can be legally implemented so easily. Are the doubts justified?
When ordering such an upper limit, one could think of various areas of law, for example commercial law. To this day, German trade law essentially goes back to the trade regulations for the North German Confederation of 1869. Then as now, the pre-constitutional principle of freedom of trade (Section 1 Paragraph 1 GewO), which is now constitutionally covered by freedom of occupation (Article 12 Paragraph 1 GG), applies. Restrictions on this freedom require justification; in particular, they must serve a constitutionally legitimate goal and be appropriate.
No regulations regarding upper limits
Trade law only has restrictions for certain types of trade and sometimes requires a license to carry out their business. This particularly includes some restaurants. A permit to operate a restaurant is required in particular by anyone who serves not only non-alcoholic drinks in addition to prepared food (§ 2 Para. 2 GastG in conjunction with § 1 LGastG BW). Permission may only be refused for certain reasons (Section 4 GastG in conjunction with Section 1 LGastG BW) and can be subject to conditions (Section 5 GastG in conjunction with Section 1 LGastG BW). Restaurant law does not provide for upper limits in certain areas.
The situation is no different in urban development law: the municipalities’ general instrument for controlling urban development in their area is the planning sovereignty assigned to them in building planning law. Development plans as binding land-use plans (Section 1 Para. 2 BauGB) basically only represent an offer plan. This means that the affected landowners and other entitled parties are allowed to make use of the usage options within the framework of the stipulations of the development plan – but do not have to. Within these limits, the property can continue to be handled as desired (§ 903 sentence 1 BGB). Where building planning law permits the use of restaurants, you can also operate a kebab grill.
The ban on kebab grills is not an upper limit
Restricting the use of kebab grills in particular is not that easy in terms of building planning law. The so-called applies to the determination of a development plan closed number the setting options provided for in the BauGB and BauNVO. The planners – i.e. the municipalities – have no right to determine the determination. Building planning law allows, for urban planning reasons, to exclude or prescribe commercial uses for certain areas in a building area that are generally permissible there (“Self-structure”, Section 1 Paragraph 4 Sentence 1 No. 1 BauNVO). In a commercial or mixed area, commercial uses could be declared inadmissible on certain areas as long as the character of the area is preserved.
It is even possible to make a vertical differentiation here, e.g. B. to exclude commercial uses only for certain floors or to prescribe them exactly there (Section 1 Para. 7 BauNVO). It is also permissible to completely exclude commercial uses in a building area (Section 1 Para. 5 BauNVO), as long as this does not call into question the intended purpose of the respective area, which would be the case, for example, in a mixed or commercial area in which commercial Uses should be excluded. Finally, for special urban development reasons – here the requirements are somewhat higher – it is also possible to exclude very specific types of use – such as kebab grills (Section 1 Para. 9 BauNVO). This means you can determine very precisely where kebab snacks are permitted and where they are not. However, even with this fine control, you cannot reach an absolute upper limit for kebab grills.
Stamp planning as a way out?
What building planning law does not recognize are general quantitative upper limits for certain uses. Now one could of course come up with the idea of simply specifying the current existing usage or otherwise making very detailed regulations that would actually amount to limiting a certain number of snack bars. However, this appears questionable for other reasons of urban planning law. Such “postage stamp planning” often has doubts as to its urban development necessity (Section 1 Para. 3 Sentence 1 BauGB).
Building planning stipulations must also be measured against the balancing requirement, according to which public and private interests must be fairly weighed against each other and against each other (Section 1 Para. 7 BauGB). It is very doubtful whether the actual creation of an upper limit on kebabs could be achieved without making any errors in consideration, taking into account Article 12 Paragraph 1 of the Basic Law. The limitation of kebab snack bars is hardly an urban development issue of such great importance that it could be accurately weighed up against the fundamental rights concerns concerned.
There is also another problem: some Heilbronn kebab restaurateurs are already welcoming the introduction of an upper limitbecause they hope to protect themselves from further competition. However, the use of building planning law must be neutral with regard to competitive interests. Protection of competitors is not an urban planning concern that can justify building planning stipulations as a determination of the content and limits of property ownership (Art. 14 Para. 1 Sentence 2 GG). The interest in being able to carry out a business free from competition from others is generally not a significant consideration because it lacks an urban planning connection.
Too many kebab stalls no need for renovation
Finally, the instruments of special urban development law probably do not allow setting a general upper limit for certain types of use. The definition of a redevelopment area could be considered here (§§ 142 ff. BauGB).
Municipalities are particularly keen to consider defining a redevelopment area for inner city areas that have developed incorrectly and therefore no longer fulfill their urban planning function or only fulfill it to a limited extent. Urban redevelopment law is a very strict instrument: it gives the municipality a right of first refusal (Section 24 Paragraph 1 Sentence 1 No. 3 BauGB); construction projects, changes of use and the establishment of temporary rental and lease agreements of more than one year require approval under redevelopment law (Section 144 Paragraph 1 BauGB). Approval must be refused if it would run counter to the goals and purposes of the renovation (Section 145 Para. 2 BauGB).
The municipality determines the goals and purposes of the renovation. It can also pursue the goal of preventing certain types of use in which it could be used by one trading down effect goes out. These are often kebab shops, shisha bars, tobacco shops, etc. With the instrument of the redevelopment area, the municipality can only prevent the establishment of other undesirable types of use – it cannot set a general upper limit for the redevelopment area. In general, the conditions under which the sharp sword of urban redevelopment law can be applied are quite high. Setting a redevelopment area just to limit the number of kebab grills and other undesirable uses can hardly be justified.
Whether you consider the call for an upper limit on kebabs to be populism, as the Heilbronn Greens do, for example, neither commercial nor urban planning law is taking part in the culture war over the inner cities.
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City initiative and CDU want kebab limit in Heilbronn: . In: Legal Tribune Online, November 5th, 2024, (accessed on: November 6th, 2024)
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