Inadmissibility of a network-based road contribution without an individual and concrete special advantage; dismissal of the municipality's appeal

Facts

Parties and lower instances: The Municipality of Gelterkinden/BL (appellant, represented by the Municipal Council) was opposed by the landowner (respondent). The lower instance was the Cantonal Court of Basel-Landschaft, Division of Constitutional and Administrative Law, judgment of 14 October 2020 (810 19 313). The Tax and Expropriation Court (Expropriation Court) had upheld the landowner's appeal by decision of 15 August 2019.

Facts: In August 2005 the landowner acquired parcel No. xxx, which had been created in August 2002 by subdivision from the parent parcel No. yyy. It lies in the municipal development zone I and is accessed via the private access parcel No. zzz, which connects to the [U.] weg operated by the municipality. The parent parcel had already paid infrastructure or road contributions in 1987 and 1989. In 2017 the landowner had a residential building with practice rooms erected on parcel No. xxx (building insurance value CHF 853,700; fire insurance value CHF 85,700, estimated on 22 June 2018). By order of 11 September 2018 the municipality levied contributions totalling CHF 56,574.70, of which CHF 29,879.50 was a road contribution calculated according to the building insurance value. In the appeal proceedings the landowner requested that the contribution be set at CHF 26,695, that is, without a road contribution.

Legal question: Whether the municipality may levy a road contribution within the network-based contribution system (network contribution system), although the parcel was already fully developed before the new construction and no individual and concrete special advantage existed. The municipality complained in particular of an impermissible change of practice and an interference with its municipal autonomy.

Lower instance: The Cantonal Court confirmed that under § 90 para. 1 ComPurA/BL an individual and concrete special advantage is required, irrespective of the contribution system. The parcel had already been developed and the development situation had not improved. A connection fee was permissible, but a road contribution without special advantage could not be structured as a (purchase) fee under Art. 82 para. 3 Cst.

Requests before the Federal Supreme Court: The municipality requested that the lower instance's decision be set aside. It argued that the parcel was not accessed exclusively via the access parcel but initially via the [U.] weg; the new development caused increased use of the municipal road network; the practice of the Expropriation Court had been changed; and municipal autonomy and the municipal regulation (Art. 12 StrRegl. 1986) had been violated. The landowner requested dismissal.

Considerations

Admissibility and scope of review: The municipality has standing to lodge a appeal in public law matters (Art. 189 para. 1 lit. e Cst.; Art. 89 para. 2 lit. c FSCA; Art. 50 para. 1 Cst.; § 45 para. 1 KV/BL). The Federal Supreme Court reviews federal law freely (Art. 95 lit. a FSCA), and cantonal and municipal law only for arbitrariness and compatibility with federal law (Art. 9 Cst.). The complaint of violation of municipal autonomy is subject to the qualified duty to state and substantiate complaints (Art. 106 para. 2 FSCA). The Federal Supreme Court is bound by the findings of fact (Art. 105 para. 1 FSCA).

Autonomy and hierarchy of norms: The municipalities of the Canton of Basel-Landschaft are in principle autonomous in regulating landowner contributions (Art. 50 para. 1 Cst.; § 45 para. 1 KV/BL), but may only levy causal charges and not municipal taxes, unless the canton authorises them (§ 132 para. 2 KV/BL). Superior law, in particular cantonal statutory and constitutional law, prevails over municipal law.

Individual and concrete special advantage as a requirement: The lower instance correctly interpreted cantonal law: according to the wording of § 90 para. 1 ComPurA/BL and § 153 para. 1 GG/BL, the levying of contributions presupposes special benefits that accrue only to a small part of the population or to a particular person (quantitative and qualitative element). Case law since the leading decision of 1923 (P.115/1923) requires a special burden corresponding to the concrete attributable…