Contribution decision for road rehabilitation
At first everything sounds wonderful: the road in front of their property is being renovated. You get a modern asphalt surface, a drainage system and street lighting.
Finally no more potholes and puddles, no more dust and gravel, and never again stumbling in the dark!
But then: A contribution letter in your mailbox! You will be asked to participate in the renovation work in terms of costs.
The open note, full of numbers in your hand, stands by the garden gate, wistfully reminiscing on how you once knocked on the mint-green striped awning above your patio on a hot summer's day the dust from passing cars. When you think of the potholes that fill up with the salt of milky meltwater in the winter, your eyes will get wet. Suddenly the street appears to you in a completely different light in its once unrefurbished condition. The neighboring children were able to play undisturbed on their lack of significant through traffic and with their equipped with wide tires higher SUV she was always good for you despite gravel flooding in heavy rain.
You therefore want to take action against the decision! Perhaps it also plays a role in your decision that you are asked to pay € 20.000 - which, of course, you had already planned elsewhere - while Mr Niedermeier next door should only pay € 10.000. And that although he regularly comes staggering from the inn to his bungalow on a small corner lot well after dark and accordingly benefits from the street lighting much more than you, who usually come to your in the 20 p.m. sharp 3. Withdraw the bedroom on the first floor of your house - so what to do?
According to Art. 5a para. 1 BayKAG (in the sense of the relevant development contribution charter), the municipalities charge a so-called development fee to cover their otherwise uncovered expenses for development facilities. This is a levy that municipalities charge to refinance the development costs.
Who is liable for contributions - usually the one who owns the property at the time of the announcement of the decision - results from Art. 5a para. 9 BayKAG i. V. m. § 134 BauGB.
The development facilities are regulated by Art. 5a Abs. 2 BayKAG. These include, in particular, the so-called growing lines, ie roads over which the adjoining plots i. P. D. Construction planning law are developed.
The scope of the development effort, which includes, among other things, the costs for the initial production of the development facilities, including the facilities for their drainage and their lighting, results from Art. 5a Abs. 9 BayKAG i. V. m. § 128 para. 1 BauGB.
However, not all costs incurred by the municipality can be allocated to the contributors. Limitations on the contribution of the development costs arise from Art. 5a Abs. 9 BayKAG i. V. m. § 129 BauGB, according to which the municipality has, among other things, mandatory to bear an own contribution of 10%.
The eligible development costs for a development system determined according to Art. 5a para. 9 BayKAG i. V. m. § 131 BauGB according to certain distribution standards (set out in the respective development contribution statutes), which may include the degree of structural use (permissible number of full floors, etc.) as well as the property area, to be distributed over the property developed by the facility. It does not matter whether the owner of the property developed by the facility subjectively perceives the construction as an advantage. Rather, what is decisive is the objective possibility of drawing an advantage from the respective development system with regard to the usability of the property. In our example, it doesn't matter that you don't see the lighting as an advantage. Rather, it is crucial that you potentially have the opportunity to make use of the access system. Of course, only in a highly theoretical way would you have the opportunity to do the same to Mr. Niedermeier once and at night to stumble back to your property via the now well-lit street.
Art. 5a para. 9 BayKAG i. V. m. § 133 para. 2 BauGB, the contribution obligation grds. with the final production of the development facilities, which according to BVerwG is present if, on the one hand, the state of construction corresponds to the manufacturing characteristics of the local development contribution statute (in the version in force at the time of production) and, on the other hand, the expenditure incurred is identifiable, which is generally the receipt of the last Entrepreneur bill is the case.
To pay the (total!) Contribution is then grds. one month after the notification of the fee, Art. 5a para. 9 BayKAG i. V. m. § 135 para. 1 BauGB.
Development contributions can grds. only for the initial final production of a development facility. With first-time final production, the development burden of the community and thus ultimately also the possibility to transfer the later subsequent effort on development contributions to the property owners expires. In particular, when a road that has been in use for a long time is being renovated, it is always necessary to examine precisely whether the road in question has already been finally manufactured for the first time. Under the terms of the BBauG (as of 30.06.1961) or BauGB (01.07.1987), this is determined by the manufacturing characteristics specified in the respective development contribution rate of the municipality. For roads already established before the 30.06.1961, Art. 5a para. 7 S. 1 BayKAG applies, according to which no development contribution can be levied for "existing development facilities" (so-called "historic roads").
In addition, the collection of development contributions shall cease to exist if, in Art. 13 para. 1 No. 4 b) b) 1. Indent BayKAG normalized maximum period has expired. It is 20 or 25 years after the end of the year in which the "Benefit Situation" occurred, which in turn is the case when the road is "ready for use".
In addition, u. U. also commitments of the municipalities to the effect that a development contribution will not be incurred, as well as so-called riparian certificates and so-called road safety contracts on the contribution obligation. In a few cases, the legal institution of forfeiture may also play a role.
New is Art. 5a Abs. 7 S. 2 BayKAG, according to which the collection of development contributions is finally excluded even if the beginning of the first technical production (so-called "first cut of the spade") of the development plant at least 25 years ago. However, the regulation only comes into force at the 01.04.2021, which is the reason why currently some communities (eg the city of Landshut in particular) are trying to avert impending deficits by the fastest possible initial final production of the respective facilities. The urgency request of a parliamentary group, the state government should be urged to work to ensure that Art. 5a para. 7 S. 2 BayKAG will be put into effect with effect to 01.01.2018, found recently (23.01.2019) no majority in the Bavarian state parliament.
To be differentiated from the development contributions are the so-called road-building contributions, with which measures of the renewal and improvement after initial final production could be transferred to the residents. They were abolished on 26.06.2018 (retroactively) to the 01.01.2018. According to Art. 19 Abs. 7 BayKAG are therefore notifications, with which from the 01.01.2018 road construction contributions (also for advance payments!) Were set to cancel. The contributions collected on the basis of such decisions must be repaid!
If you have any questions about the topic of a decision on the topic of road rehabilitation or other questions about construction law or administrative law, then our public law specialist is at your disposal Lawyer Maximilian Kaltenegger happy to help and advice. Lawyer Kaltenegger represents you nationwide before all administrative courts, mainly in the cities of Regensburg and Landshut.