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Show zoning. When efforts were made to prohibit construction in these zones, the interests of the landowners clashed strongly with the interests of the communities. On one hand was the carefully guarded private ownership of the individual; on the other, the public- legal obligation of the community authorities to interfere and prevent disaster. Now the fact that a person might be willing to chance a dangerous situation will, according to existing law, not justify any action by police. Buildings in danger from avalanches, however, extend beyond the private interests of the builder, owner, and renters and become a matter of publi c concern. Even though these words are often used, a legally unambiguous interpretation of them is difficult. Not every constraint against economic advantages is in the public interest, but such an interest can be assumed in the case of avalanche zoning. Occupation of a building presently implies the unquestionable assumption of the right to use public services: mail delivery, snow removal, fire department, police department, repairs by the telephone company, by the power and light company, the water department and many others. The danger present might also effect others: the milkman, the doctor and residents' children on their way to school. Should an accident happen, the rescue team would also be endangered. Famous resorts claim that avalanche disasters would damage their reputations. Buildings located in avalanche zones become a matter of great public concern, especially if the building of protective structures is later required. According to Art. 32, Paragraph 2 of the Executive Ordinance of the Federal Forest Law, no federal aid is given to build these structures. Such a case, although not clear, has already happened. Since 1952, many vacation houses have been built among several older buildings which are located in an avalanche area. The builders had been warned, then a disaster happened. Because of the older buildings, financial assistance should have been received, but payment could have been withheld, since warnings concerning the construction of the newer buildings had been disregarded. The Federal Government would not make the decision to withhold assistance and for many possible reasons, financial aid was given to build defense structures. These examples illustrate that even simple rules can lead to conflicts. The expert opinion of Crespi was mentioned in the first chapter. It is based on a dissertation which analyzes the definition of " liberal police." Voigt defines police as follows: " Law enforcement is a purely defensive institution, founded to prevent danger in the areas of interior affairs by limiting freedom and ownership of citizens in the general interest of people, insofar as this is considered necessary to the maintenance of public security and order." Voigt explains further: " This formula gives in practice only summary information on how far police duties should be carried. It is totally dependent on the interpretation given to the terms ' general interest, 1 ' public safety1 and ' public order.' The police authorities in the Federation and in the cantons base their authority on a general interpretation of police functions contained in the general clause, especially if their interference is necessary in the public interest, but cannot be based on a police ordinance. In an area not covered by law, the general clause is considered a prescriptive law." 15 |
