OCR Text |
Show executes the duties of the building police. It not only can, but also must interfere in the case of careless building in an avalanche zone. The preliminary surveys for the building police is done by a special commission, whose members also include construction experts. This building commission must be prepared to handle all construction requests for areas with avalanche slopes. Most mountain communities have avalanche areas, for which zoning maps should be worked out as soon as possible, since the probability exists that they might be claimed in the future for building sites or tourist areas. The designation, avalanche zoning " plan" can lead to confusion. The word " plan" can basically mean two different things: It can be a technical draft or the plan of a site and express a definite condition; or it can be a planning tool or an expression of what is intended. It must be emphatically stated that an avalanche zoning map has little or nothing to do with a planning right, but that it is an expression of a long existing state of affairs. Possible public- legal restrictions of the use of property are not a consequence of this nap, but existed undiscovered long before. It is argued that on sites which are endangered by avalanches, construction cannot be categorically prohibited without the proper special- legal authorization; just as if such construction restrictions had not existed long before! Even if an avalanche zoning map does not exist, an avalanche area should not be sold by its owner as a potential building site. A police action does not initiate the limited use of property. Such a restriction is in existence before the action is taken. In summary: Restricting construction in an avalanche zone is not determined by avalanche zoning maps, but is a consequence of existing natural law. Therefore, avalanche zone planning is not a planning rights institution. Where the use of property is limited as a result of true planning, a thorough investigation concerning its legality is appropriate. The Federal Court practice of asking for the appropriate legal argument in this case must be recommended. In this connection, it can be said that the Federal Building Law of the West German Republic is more rigorous. To control building activities outside closed settlements, paragraph 35 states that building is fundamentally prohibited in the remote areas. Estermann writes: " It is significant that according to German Law, construction projects in the remote areas are not permitted if funds have to be spent uneconomically on streets and other traffic installation, for sewer systems and supply installations, for safety, health, and other public necessities. This is independent of whether or not the community has to carry the financial burden for these projects. Construction of week- end cabins is also considered undesirable building and therefore not permitted." However, we do not have a federal building law. The Swiss " Zivilgesetz-buch" ( ZGB) ( civil code) demands that the cantons regulate their own building rights, either with appropriate special laws or in the law supplementing the ZGB. The will of the lawmakers is expressed in the ZGB Art. 702, which states that the cantons and communities should have the right to limit the use of property in the public interest. That a public interest exists has 18 |