Facts

Parties and procedural history: The three condominium owners (appellants) of parcels Nos. 1421 and 872 in Davos opposed the Palüda - Eggastrasse detailed development plan of the Municipality of Davos. The heirs' community of [D.] ([E.] and [F.] ) is the owner of the undeveloped slope parcel No. 4800 and participated in the proceedings as a further party. The Small Cantonal Council approved the detailed development plan on 19 June 2018 with amendments and dismissed the objection of the appellants. The Cantonal Administrative Court of the Canton of Graubünden upheld the appeal on 1 December 2020 only in one partial point (deletion of an easement in favour of No. 872 and burdening No. 4837) and dismissed it for the remainder. By public law appeal of 10 March 2021, the appellants requested the annulment of the judgment and the waiver of all detailed development plan provisions that provide for a right of shared use or connection right of parcel No. 4800 to the tunnel with inclined lift and staircase.

Subject matter of the dispute: The development of the slope parcel No. 4800, which cannot be adequately accessed on account of avalanche danger on the Eggastrasse (danger zone 1, red), via the existing private access tunnel with inclined lift on parcels Nos. 1421 and 872.

Considerations

Admissibility and standing (consid. 1): The public law appeal against the final cantonal decision of the last instance is admissible under Art. 82 lit. a, Art. 86 para. 1 lit. d and Art. 90 FSCA. The appellants have standing under Art. 89 para. 1 FSCA: they took part in the proceedings before the lower court, are particularly affected as condominium owners (lit. b), and have a legally protected interest (lit. c), since the extension of the circle of users directly burdens their right of use of the private access facility. Pursuant to Art. 33 para. 3 lit. a SPA and Art. 111 FSCA, cantonal law may not define standing more narrowly, so the lower court correctly admitted the cantonal appeal.

Principle of complaints and facts (consid. 2 and 3): The Federal Supreme Court examines federal law ex officio, but reviews violations of fundamental rights only under the strict principle of complaints (Art. 106 para. 2 FSCA). Review of the establishment of facts is only possible in case of manifest inaccuracy (Art. 97 para. 1 FSCA). The lower court's waiver of an on-site inspection violates neither the right to be heard nor is it arbitrary: the Hazard Commission of the AWN assessed the avalanche danger on a technical basis; a confusion of the avalanche path (Dorfberg/Dorfbachtobel) was not recognised as a relevant error. The assessment of evidence regarding avalanche danger (danger zone 1 despite protective structures) is only reviewable for arbitrariness and was not found to be arbitrary. A site inspection by the Federal Supreme Court was not necessary.

Concept of development (consid. 4): Pursuant to Art. 19 para. 1 SPA in conjunction with Art. 4 CHOA, development comprises basic and fine development; adequate access also includes the connecting section from the public road to the building plot. Under federal law it suffices that vehicles can reach a sufficiently close point and from there pedestrians can reach the building. Since No. 4800 can only be developed in a winter-safe manner via the tunnel from the Palüdastrasse, and the easement also covers access in the open, the tunnel is to be regarded as part of the fine development; it is not a mere house connection, since it runs separately from the multi-family houses and is connected to them only laterally.

Federal civil law and guarantee of property (consid. 5 and 6): The establishment of the easement in the detailed development plan does not violate Art. 702 CC: pursuant to Art. 6 CC, Art. 702 et seq. CC and Art. 19, 20 SPA, cantons may provide for sovereign basic easements in land readjustment proceedings. The modification of limited real rights is permissible as long as it is conditioned by the purpose of development and does not merely regulate neighbourly relations. The grant constitutes a public law restriction of ownership (Art. 26, 36 Cst.). The legal basis is Art. 51 para. 3, Art. 52, Art. 58 para. 4 and Art. 70 CRA; Art. 70 CRA is justifiable as a milder measure compared to land readjustment even without a change in area, and withstands the prohibition of arbitrariness. A serious interference does not exist, since…