The German ordinance on land usage (Baunutzungsverordnung: BauNVO) in its most basic form was created in 1962. It defines the various categories of building zones and what they are permitted to be used for. The overarching model was a city in which different uses were segregated: The predominant theory at the time sought to prevent incompatible uses from being in close proximity to one another, in the belief that this would contribute to healthy living conditions. However, this meant the BauNVO conflicted with many developments which had already been present before its introduction – and not only with these, but also with contemporary demands on modern urban development.
Taking a look back: City centers that have historically been growth areas and were not destroyed during the Second World War, such as areas in Kreuzberg, Berlin, or downtown Munich, are expressions of highly dense, diverse urban development*. This development was specifically not intended to separate functions. Of course, no one is calling for a return of those densely crammed together mixed-use areas with residential quarters and production facilities emitting high levels of pollution. In the years since then, however, commercial enterprises and production methods have changed. This has made these structures of urban development very popular today, as they have made it possible to combine residential and commercial uses in a vibrant way, creating much-sought-after urbanity.
The Leipzig Charta of 2007 marked the first attempt to carrying the model of “the European city” into the 21st century. It was wound up in the demand for renewed integration of living, working and recreational spaces in cities**. Legislators also addressed this demand with the newest amendment to the Federal Building Code (BauGB) / ordinance on land usage (BauNVO). The aim of the amendment was to grant more flexibility to local authorities in extremely dense urban areas, to give them the ability to cope with the variety of demands regarding environmental friendliness and climate protection, as well as the requirements of various user groups***. The concept of the “urban area” entered the BauNVO canon for this purpose. The amendment thus constitutes the first, tentative move away from the BauNVO’s dogma to date, which was the promotion of highly segregated urban development.
“Urban area” – what does it actually mean?
According to Section 6a (1) of the BauNVO, urban areas serve residential needs and can also house commercial enterprises as long as these do not significantly disrupt the lives of residents. There is no requirement for each use to receive equal consideration. Clause 2 provides a more detailed definition of the kinds of commercial enterprises that are permitted: business and office buildings, retailers, gastronomy or accommodation facilities, and other commercial enterprises – given that residents are not significantly disrupted by them. Various forms of public entertainment venues and gas stations are also permitted in exceptional cases (clause 3).
A commercial enterprise’s level of emissions is the decisive factor in whether or not it is considered a significant disruption to residents. For inner-city commercial areas, the essential criterion is usually the level of noise pollution, while odors, dust, and the like are more relevant for outer regions. In Germany’s technical noise protection guidelines (TA Lärm), the allotted urban area emission limits are 63 dB(A) for daytime and 45 dB(A) at night. This means that, although more noise pollution is permitted during the day than in mixed or business zones, at night, the standard is the same as for mixed zones.
The dominance of housing in practice
The basic idea behind this amendment is a welcome one, not least because – in the immortal words of Goethe – “all theory is gray.” Discussions of topics such as urbanity, good urban development, and other challenges for urban planning are currently seen only in relation to residential issues. To name one example, there are ideas circulating for further developing the Leipzig Charta with an eye to possible regional partnerships for residential construction****. In this respect, the “compact city” is apparently primarily seen as a “compact residential city.” Current trends also corroborate the dominance of residential issues – in Munich, for instance, 160 hectares have been reallocated from commercial use to residential*****.
Establishing businesses in densely populated areas, however, is also closely intertwined with precisely these objectives of the compact city: Land use is to be reduced, commuter traffic it to be prevented, and integrated city districts are to be created. How can the current form of the newly introduced urban area (MU) help facilitate the planning of city centers that are integrated and shaped – to a certain degree – by commerce?
Possibilities for strengthening commerce
Because mixed-use areas do not need to allocate equal space to each use, there is no longer a requirement for 50 percent commercial use (unlike mixed zones) to benefit from higher emissions limits; instead, the requirement is just 20 to 30 percent. We can assume that, due to their flexibility, urban areas will be primarily planned in areas that were formerly mixed zones. The de facto result will be even less space allocated to commerce in city centers.
On the other hand, urban areas do offer opportunities to strengthen inner-city commercial locations. In theory, even an urban area dominated by commerce would be permitted******. Moreover, the urban area can encourage flexibility; in practice, commercial enterprises willing to settle permanently in a location no longer need to prove their compliance with the requirements of equal distribution for mixed-use areas in order to be approved. However, this does not line up with the approach many local authorities have stated they will be pursuing.
One sticking point for the practical application of an urban area is also noise protection: Daytime emissions limits are higher than in mixed and business zones; residential buildings may therefore be exposed to higher levels of noise pollution. This opens up the use of spaces that were previously not available for residential purposes. However, between the hours of 10 p.m. and 6 a.m., the limit for mixed and business zones (45 dB(A)) applies – from a commercial perspective, an increase to the limit would have been more preferable, such as 54 dB(A), as in the 16th Federal Emissions Control (BImschV)*******. In practice, therefore, it will primarily be the responsibility of commercial enterprises to comply with the low nighttime limit, as they are the biggest noise polluters, along with traffic.
To date, discussions of the “urban area” concept have mainly focused on predominant residential use, which may unfortunately lead to a further reduction in the number of commercial enterprises in city centers. It would be preferable if the potential for urban areas shaped by commerce could likewise be recognized and put into practice. Fundamentally, urban areas present new opportunities for the establishment of commerce in city centers, as increased upper limits for commercial emissions are permitted without significantly disrupting residential life.
* For a counterargument, cf. Autorenkollektiv Planungskultur [Authors’ Collective for Planning Culture], PlanerIn 2/2017, p. 54.
** Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (ed.): Content and Objectives of the Leipzig Charta, www.bmub.bund.de/themen/stadt-wohnen/stadtentwicklung/kurzinfo/inhalte-und-ziele-der-leipzig-charta/, accessed on 8/22/2017.
*** BT-Drucks. 18/10942, p. 29.
**** Merk, PlanerIn 4/2017, p. 8.
***** Merk, PlanerIn 4/2017, p. 6.
****** Battis/Mitschang/Reidt, NVwZ 2017, 817, 824.
******* See Battis/Mitschang/Reidt, NVwZ 2017, 817, 824 f.