05 October 2023

Unrestricted access to Lake Zurich: excessive demand or justified concern?

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The debate about lakeshore ownership has been running through the political and legal landscape for many decades. In Zurich, it is currently sparking particularly heated discussions.

In March 2024, there will be a popular vote in the canton of Zurich on the cantonal popular initiative "For public lakeshore paths with ecological upgrading" (in short, the "Lakeshore initiative"). With the Lakeshore initiative, the initiators want to regulate various aspects in connection with the construction of lakeshore paths on Lake Zurich at the constitutional level. In general, according to the initiators, lake and river shores should be kept free, public access to them should be facilitated and more weight should be given to ecology. In concrete terms, it should be stipulated in the cantonal constitution that a continuous lakeshore path should be built on the cantonal territory of Lake Zurich by 2050.

Currently, in the canton of Zurich, about half of the path around Lake Zurich (almost 26 km) runs more or less directly along the shore. For another 12.4 km, the path runs on the pavement along the lake road. According to the supporters of the initiative, the population has a right to hike, stroll and linger as unrestrictedly as possible along the remaining 12.6 km along the shore of Lake Zurich.

The opponents of the initiative, who are likely to include a large number of landowners with lake access in the canton of Zurich, reject the Lakeshore initiative, in particular with reference to the constitutionally protected property guarantee. Another argument put forward by the opponents of the initiative is the presumably high implementation costs, which would also be borne by taxpayers from municipalities far from Zurich's waters.

The potential implementation of a lakeshore path is a legally complex matter. Around 95 percent of today's Lake Zurich shore is man-made. In the 19th and early 20th centuries, new land - so-called land installations (Ger: Landanlagen) - was gained by filling in the shore area of Lake Zurich. The construction of such land installations required a state concession, which is why the newly acquired land is also called concession land (Ger: Konzessionsland). In the case of concession land, the primary question is who owns this newly created land. Until the Water Management Act came into force at the beginning of 1993, the concession holder became the owner of the land. However, the acquired property is usually limited property. Accordingly, ownership of the land only exists to the extent of the respective concession provisions. Often, the scope of the owner's rights of use has been restricted, for example by limiting or excluding construction on the property. Often it is also specifically stated in the respective concessions that the concession land reverts to the canton (without compensation) in the event of the building of a lakeshore path. Whether and to what extent such concessions or restrictions are still valid today and could be enforced by sovereign force must be clarified in each individual case.

Last summer, the Government Council already proposed to the Cantonal Parliament that the Lakeshore initiative be rejected without a counter-proposal. It argues that the handling of waterfront paths in the canton of Zurich is already regulated in detail and that there is no need for further provisions at the level of the cantonal constitution. The Zurich government also expects the construction of the path to cost up to 460 million Swiss francs. The projected costs include not only the planning and construction costs of the continuous lakeshore path. Numerous property owners are likely to take legal action against the lakefront path and the potentially related property restrictions. Costs associated with litigation that could last several years are included in the cost estimate and would be disproportionate, according to the cantonal government. After the Commission for Planning and Construction had recommended rejecting the initiative to the Cantonal Parliament this summer, the proposal was also rejected by the cantonal legislature this Monday with 97 votes against and 74 in favor. As experience suggests, it is likely to be challenging for the initiative when presented to the people.

In connection with the Lakeshore initiative, complex legal questions arise, particularly for landowners with a lakefront in the Canton of Zurich, concerning the issue of (formal and material) expropriation, compensation payments, removal and deconstruction obligations, etc. The legal situation is largely determined by which public-law property restrictions encumber the respective property in each individual case. If the people of Zurich approve the initiative next spring, court proceedings to clarify the legal situation can hardly be avoided.

Our real estate team is available to provide guidance and support regarding any inquiries you might have about the Lakeshore initiative.

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