OCR Text |
Show been proven. It is easy to understand that the use of property in avalanche areas is limited, a fact which should not need any further proof. We do not seek to discuss further here whether the subject of avalanche zoning should be mentioned in the legislature in order to achieve legal status for it. It would be easy to show that this subject was in part simply forgotten. The opinion of the Federal Court and that of Crespi agree that avalanche zone planning should be incorporated into the law. This opinion, however, does not mean that the drafting of an avalanche zoning map is prohibited under present conditions. Such a map is at first only a technical tool used by the building police, and has no legal status. It serves only as a guide for the building commission. It helps them to speed up decision- making and to rationalize their activities. It does not prohibit construction. This is in every single case decided by the building authorities. These temporary difficulties and the lack of an appropriate law should not, under any circumstances, delay the authorities of mountain communities from immediately commissioning an avalanche zoning map. Such maps already are of great practical importance. They provide fundamental information which is used as a guideline by the Elemental Damage Claims Insurance. This institution, which for example, is a public one in the cantons of Berne, Nidwalden, Glarus, Fribourg, St. Gall, the Grisons and Vaud, can exercise a definite influence against careless building. An additional influence can be exercised against inadmissible building projects by the community authorities in withholding connections to public utility faci1i ties. Now the question has to be examined if building restrictions resulting from avalanche danger are subject to compensation claims by the property owner. This has been categorically denied by qualified opinions. A memorandum to the expert opinion of Crespi states: " Compensation is only justified when, through building restriction, proper use and utilization of ground cannot be maintained. This is not the case here, since by restricting building no new situation has been created but an already existing danger has been officially recognized and confirmed." The expert opinion of Imboden states: " When it is justifiable to prevent property from being used because of avalanche danger, no compensation is permissible. This is valid even if presently, building site prices would be paid for the property." The legal opinion of today can be even further extended. Estermann cites the opinion of Liver: " Since agricultural areas are meant to be used for agriculture and not for construction, no compensation must be paid for building restrictions on agricultural soil." Studeli and Jost are also of the opinion that the restriction of construction in rural areas unfit for construction should not be compensated. The guidelines of the ORL Institute are also in agreement with this: " Prohibition of building in the interest of safety against the natural elements must not be compensated." Of the 12 mountain cantons, only four mention avalanche zones in their special legislation. Surprisingly enough, it is also missing from the newer laws of four other cantons. It must be assumed that the guidelines prepared 19 |