Home > Public space > Germany > 2010-11-18 - Federal Administrative Court, n. 64 C 10/09

2010-11-18 - Federal Administrative Court, n. 64 C 10/09

Public space · Germany · Place of worship

Dispensation of the interdiction to build a crypt in industrial area for a Church, which is a registered association

Key facts of the case - A Syrian-Orthodox Church which is a registered association has a place of worship in an industrial area. When the building permission was issued in 1994, the authorities rejected the Church’s wish to build a crypt under the church-building. The place of worship was erected in accordance with the permit. In 2005 the religious community again requested the permission to use the basement of the building as a private burial site for deceased priests. This permission was denied and the proceedings went through the stages of appeal until they reached the Federal Administrative Court. The Federal Administrative Court had to decide, whether a dispensation from the regulation that a crypt cannot be built in an industrial area can be made.

Main reasoning of the court - The Court found that generally, the basement of a church in an industrial area cannot be used as a crypt as such a project is not compatible with the character of an industrial area. The Court stressed that generally, the dignity of a burial site as a place of memory and grief cannot be ensured in an industrial area and is therefore not admissible. In the instant case however, the church has already been built and the church and the crypt are to be considered as one entity. § 31 II Nr. 1 BauGB (Baugesetzbuch) provides dispensations from the development plan. These dispensations can be granted for the common good.
Religion and the religious convictions of the plaintiff were considered as part of the common good by the Federal Administrative Court. Thus, a dispensation from the development plan for religious reasons is possible.
As the Court considers the church and the crypt as one entity, the dispensation which was made for the church in 1994 is also to be granted for the crypt. The Court held, that in the instant case, the religious convictions of the registered association are to be taken as a basis to find out what the essential parts of the religious building are. For this Syrian-Orthodox church, it is vital, that the priests are buried in a sacred place like a crypt. They do not necessarily have to be buried in their own church but as long as there are no reasonable alternatives, the Court held that the plaintiff has the right to build a crypt. Therefore a crypt is essential to this church and has to be part of the religious building. As a consequence, the burial site also falls under the regulation for dispensations of § 31 II Nr.1 BauGB.