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The admissible action is unfounded.
The defendant's decision of February 25, 2008 is lawful and therefore does not violate the plaintiff's rights (Section 113 (1) sentence 1 of the Administrative Court Regulations - VwGO -). The defendant rightly used them to make a difficult contribution for the budget year 2008 in the amount of € 51.80.
The legal basis of the contested decision is § 29 of the defendant's statutes of February 27, 1996 (Official Gazette for the District of Cuxhaven No. 204, p. 223) in the version of the 4th Amendment of December 13, 2007 (Official Gazette for the District of Cuxhaven No. 50, p. 328). According to this, the members have to make the contributions to the association, which are necessary for the fulfillment of its tasks and obligations and for a proper housekeeping. For the maintenance of the waters of the IInd order and the facilities used for water drainage, all members in the association area are required to pay contributions in proportion to the area of the properties belonging to the association. The defendant decides on the amount of the hectare rate within the framework of his budget (Section 30, Paragraph 1, 3 of the Association's Articles of Association). In addition, the association raises difficulty contributions in accordance with the assessment regulations in accordance with Appendix III to the association's statutes (Section 30 (2) of the association's statutes). According to this, the defendant draws its members for a sealed area, which is recorded in the real estate cadastre with a definition contained in column 2 of Annex III, for an additional contribution with the specified multiple hectare rate, i.e. in each case according to the classification of the area as lightly sealed, medium-tight sealed or more sealed. The association raises a minimum contribution in accordance with Section 101, Paragraph 3, Clause 2 of the NWG in the amount of the hectare rate, but not more than € 25.00 (Section 30, Paragraph 3, Clause 1 of the Association's Articles of Association). The minimum contribution (in the case of the defendant: € 25.00) is raised if, according to the other contribution ratio, the member would have to pay a contribution below the amount resulting from sentence 1 (Section 30, Paragraph 3, Sentence 2 of the Association's Articles of Association).
According to this, the defendant correctly determined the contribution to be paid for the plaintiff's properties. In the budget charter for the 2008 budget year, the association committee set the rate of assessment for non-agricultural areas at € 31.50. Based on this, the defendant asked the plaintiff to make a general contribution of € 12.95 (0.4111 ha x € 31.50). In addition, he has applied a four-fold hectare rate of € 126.00 for the areas with the code 21130 and set a hardship contribution of € 51.80 (0.4111 ha x € 126.00). According to the association's statutes, a minimum contribution was not required because the other contribution ratio, i.e. the area-related general contribution plus the hardship contribution, exceeds an amount of € 25.00.
The collection of hardship contributions on the basis of the designations listed in the real estate cadastre corresponds to the legal requirements of the Lower Saxony Water Act. According to Section 101, Paragraph 3, Clause 4 of the NWG (as amended on July 27, 2007), the statutes of an entertainment association can provide for additional contributions to this provision in accordance with Annex 6. According to No. 1.a of Annex 6 to Section 101 NWG, maintenance associations can levy an additional contribution with the specified multiple of the hectare rate for a sealed area in accordance with the definition contained in column 2 and entered in the real estate cadastre. For properties with the definition of "building and open space used for residential purposes" with the identifier 21130, Appendix 6 to Section 101, Paragraph 3, Clause 4 of the NWG - like the association statutes - provides a four-fold hectare rate for more heavily sealed areas.
The use of the plaintiff for difficult contributions taking into account the markings of the respective areas in the real estate cadastre is not objectionable for legal reasons.
In its judgment of March 24, 2009 (1 A 1239/08), the chamber already stated the following:
After the official justification of the draft law amending the Nds. Water Act and Nds. Fisheries Act (Drucksache 15/3245), the annex to Section 101, Paragraph 3, Clause 4 of the NWG is intended to form the reliable basis for the possible collection of additional contributions to make water maintenance more difficult. The additional contribution according to No. 1 letter a) of the system, which is three times graded according to the strength of the soil sealing, is based on the type of use of the sealed property. The entry in the real estate cadastre is decisive for the classification of the specific property. No. 1 letter a) lists all areas with their designation and definition according to the real estate cadastre that are eligible for the collection of additional contributions for sealing. The actual corresponding use is decisive. The classification of the areas in No. 1 letter a) into lightly sealed, medium-tightly sealed and heavily sealed surfaces takes into account the mean runoff coefficients for sealed surfaces determined by the German Association for Water Management, Wastewater and Waste e.V. The average runoff coefficient for roofs of all types is 0.8, for streets 0.5 and for gardens and cultivated land 0.1. The proportionality of the factors of the additional contributions can be derived from this. For the classification of the area, it depends on the entry in the real estate cadastre at the beginning of the new contribution year.
The official justification for the draft law also states that the recording of the areas and the associated factors are based on a cautious assessment of the difficulties if the known runoff coefficients and the provisions in the provisional guideline of December 2, 1961 are taken into account. The legislature could only have used the residents for water maintenance. However, he did not take this route because in this way the various contributions to the water cycle and thus to the pollution of the water could not have been fully recorded. It should be taken into account that the greater part of the seepage water also flows back into the surface water and the water that is retained is gradually released to the receiving waters. The official justification countered the objection that the stipulation of hardship contributions without prior individual examination violates the fairness of contributions according to the polluter pays principle by pointing out that in view of the diverse circumstances and structures, fairness on a case-by-case basis is not achievable. Therefore, standardized, uniform area allocations in the real estate cadastre should be used and, based on this, general hardship values based on the sealing.
The nds. Higher Administrative Court already decided in its judgment of August 26, 1996 (Nds. VBl. 1997, p. 10 ff.). For the assessment of hardship contributions, the area scale is ruled out from the outset, since the reasons that made it appear appropriate for the distribution of general maintenance costs do not apply to them. The possibility of a lump sum means that the contributions can be determined as a lump sum for difficulties of the same kind. Thus, the amount of this contribution could be based on the average additional expenditure for certain case groups based on several years of experience, with the organs of the association being entitled to a certain degree of judgment.
Incidentally, it has been clarified in the case law that, because of the broad discretion granted to the local legislature, it cannot be demanded that the most appropriate, sensible, fair or probable standard is applied. If a standard generally leads to an even burden on the contributor, then additional burdens do not necessarily call its legality into question in exceptional cases. Because breaches of the principle of equality through typifications and generalizations can - especially when regulating mass phenomena - be justified by considerations of administrative simplification and practicability, as long as the injustice arising from each typifying regulation is still in an appropriate proportion to the technical survey advantages of typing and the number of Exceptions are small (see BVerwG, decision of September 19, 2005 - 10 BN 2/05 -, quoted from Juris).
On the basis of this, the Chamber considers the legislature's decision to levy hardship contributions in accordance with three different groups of cases specified in the Annex to Section 101 (3) Sentence 4 NWG to be permissible and, in the specific case, to be free of legal errors. The plaintiffs' objections to this cannot be accepted. In particular, the generalization and typification made, taking into account the cited decision of the Federal Administrative Court of September 19, 2005, proves to be free of legal errors.
The plaintiff essentially asserts that his property is wrongly classified as a more impervious area. It is built on. The development is only about 1/10 in relation to the size of the property. In this situation, one cannot speak of a more sealed area of the property. On the other hand, the objection is that the annex to Section 101, Paragraph 3, Clause 4 of the NWG provides for four times the hectare rate, including for buildings and open spaces that are used for residential purposes (identifier 21230). This means that a property is generally classified as a more strongly sealed area, although it is obvious that this property is not 100% built on or otherwise sealed. Apart from the fact that the exact determination of the sealed portion of a property in the sense of a supposed individual justice cannot be considered for reasons of administrative simplification and practicality in such mass proceedings, the following consideration in particular speaks in favor of the classification carried out: The legislature has divided into sealed and Unsealed areas are taken into account via the difficulty factors and these are deliberately set very low. The defendant points out that, for example, from heavily sealed surfaces, such as asphalt or concrete surfaces, dense stone laying, roofs, paved paths or similar surfaces, amounts of 20 times and more of water flow into the waters faster than comparable ones unsealed areas would happen. Nevertheless, the maximum factor for properties with stronger seals according to the NWG is only four times as much. In terms of water management, this approach is nevertheless acceptable, because on any property that is used for residential purposes, only a certain proportion of the areas are usually sealed and thus the water is increasingly discharged into the waters more quickly. If one had only wanted to tie in with the sealed areas, one would have had to choose a considerably higher multiplier for these and possibly ignore the unsealed areas. As a rule, however, this approach would not have resulted in a significantly different result, only the necessary administrative effort would have increased many times over, even making it impractical.
The Chamber follows this legal opinion also in the present proceedings. According to this, the contested contribution decision of the defendant is in accordance with both the relevant statute law and higher-ranking law. This applies regardless of the actual circumstances on the plaintiff's property, even if an exceptionally large property only has a very small building. The Chamber no longer upholds its assessment in the cited judgment of March 24, 2009 that the creation and application of a hardship rule would be appropriate for such exceptional cases. The following considerations are relevant for this:
As the Administrative Court of Oldenburg has already stated in its judgment of April 21, 2009 (1 A 1120/08), the provision of No. 1.b of the assessment rules (Annex 6 to § 101 NWG) offers the person liable to pay contributions the opportunity to prove that the affected area is completely unsealed. In such a case, the fee will not be charged or only partially charged if the rainwater is used on the sealed surfaces. This regulation proves that the assessment of the hardship contributions is not based on the actual sealing size, but on the entry of the actual use of the total area marked in the real estate cadastre. This already follows from the consideration that the collection of hardship contributions for completely unsealed areas would be excluded per se if the actual sealing of the property mattered. Accordingly, the explanatory memorandum for the NWG on the collection of hardship contributions also states that the entry in the real estate cadastre is decisive for the classification of the specific property (Landtag printed matter 15/3245, p. 35). Even if there are actually lower or different seals than entered in the cadastre, a contribution should be made on the basis of the entries; In this case, the person concerned has to apply for the property cadastre to be corrected.
Such a correction has not been made in the case of the plaintiff. In addition, the plaintiff's land is undisputedly built on and is therefore by no means completely unsealed. Since the defendant is not given any discretion under the statutes when collecting the contribution, the defendant was not able to take into account a relatively low level of sealing of the affected properties when determining the amount of the contribution in favor of the plaintiff, without violating the mandatory provisions of the statutes.
It is true that under No. 1.a of Annex 6 to Section 101 NWG, an additional contribution “can” be levied for a sealed surface. However, this provision does not mean that the defendant would be given the opportunity to refrain from levying difficult contributions in individual cases under the statutes. Rather, this optional provision in Annex 6 is to be interpreted in such a way that it gives an association the opportunity to anchor a corresponding regulation regarding the collection of difficult contributions in its statutes. If, however - as here - there is an amendment to the statutes within the meaning of this statutory requirement, then the defendant association has bound itself to this system prescribed by law for its entire collection of contributions. There is no deviation from the obligation to collect data in individual cases within the scope of a discretion still given under the statutes.
In addition, the differentiated classification of differently sealed areas from one to four times the hectare rate in Annex 6 to § 101 NWG does not prove to be legally objectionable. Roads are only classified as medium-density sealed areas and thus with two and a half times the hectare rate. The official justification for the draft law refers to the different runoff coefficients, e.g. for roofs (0.8) and for streets (0.35). Incidentally, not only paved roads are considered for the roads, but also less impervious areas such as embankments, banks and ditches. Incidentally, this assessment corresponds to the recommendation of the Abwassertechnischen Vereinigung on average runoff coefficients, which assumes a mean runoff coefficient of between 0.15 and 0.9 for streets, paths and squares, depending on their nature. The runoff coefficient is defined as a factor dependent on the catchment area, by which the amount of rain per unit of time is multiplied in order to obtain the expected rain runoff that is to be discharged into the drainage system. In contrast, the mean runoff coefficient for roofs is between 0.8 and 1.0. The different classification of streets and paths as well as residential developments is therefore not arbitrary.
The defendant's statutes are also linked to Nds. Compatible with the Water Act, provided that a minimum contribution is only charged if the total contribution for a budget year, i.e. the general contribution plus possible difficult contributions, does not reach the amount of € 25.00. In particular, no. 1.c of Annex 6 to § 101 NWG does not contradict this, which reads as follows: "Anyone who only has to pay the minimum contribution will not be charged a contribution for sealing."
According to this provision, the collection of difficult contributions is only excluded if a member actually has to pay a minimum contribution that exceeds the general contribution in accordance with the relevant statutes.If the area-related general contribution does not mathematically reach the minimum contribution, but the total contribution including possible hardship contributions, an entertainment association can waive the setting of a minimum contribution in its association statutes and use the respective members concerned to make hardship contributions without restrictions.
The wording of the regulation No. 1.c of Annex 6 to § 101 NWG does not conflict with such an understanding. The provision expressly relates solely to constellations in which a member of an entertainment association "has to pay" a minimum contribution. The legislature has not expressly regulated the conditions under which an entertainment association draws its members for a minimum contribution.
The system of Section 101 (3) NWG allows the conclusion that minimum contributions can only take the place of the area-related general contribution. Clause 1 of this provision initially regulates the use of members for an area-based contribution. Sentence 2 then provides for the possibility of raising minimum contributions. The entertainment associations are only authorized in sentence 4 to levy additional contributions in the form of difficult contributions. Even if a minimum contribution takes the place of the area-related contribution according to the law, it does not follow from this that, when it comes to the question of the conditions under which an entertainment association charges minimum contributions in individual cases, possible difficult contributions should necessarily be disregarded. In particular, there remains a sensible area of application for the regulation of No. 1.c of Annex 6 to § 101 NWG even with this interpretation. In any case, it excludes a double burden on the members of an entertainment association, namely in the form that the entertainment association initially and in deviation from the basic rule of Section 101 (3) sentence 1 NWG to a minimum contribution exceeding the area-related general contribution and beyond Draws hardship contributions.
For the understanding of No. 1.c of Annex 6 to § 101 NWG on which the defendant's statutes are based, the sense and purpose of a minimum contribution regulation speaks above all. The minimum contribution is levied from owners of such properties, for which, due to their small size, only a contribution would be made when applying the area scale, which would mathematically not reach the costs caused by its elevation, in particular also for the administrative activities of the association. The collection of a minimum contribution thus corresponds to the principles of economic budget and administrative management to which the entertainment associations are obliged (so already with earlier versions of the NWG: OVG Lüneburg, ruling of November 5, 1970 - III OVG A 33/36 -, RdL 1972, 135; judgment of August 26, 1996 - 3 L 5612/93 -, Nds. VBl. 1997, 10). If, on the other hand, individual members have to pay a total contribution that reaches the minimum contribution anyway, taking account of difficult contributions, the costs for the administrative activities of an association are inevitably covered. A deviation from the area scale by charging a minimum fee and the associated unequal treatment of the members is not justified in these constellations for reasons of economic efficiency. Furthermore, according to its function, a minimum contribution represents a burden on the owners of smaller properties. If no. 1.c of Annex 6 to § 101 NWG were to be interpreted in such a way that the use of property owners for hardship contributions would already be excluded if the area-related contribution exceeds the im In a purely arithmetical way, the minimum contribution set in individual cases would not be reached, the minimum contribution would be the maximum contribution for a not insignificant group of medium-sized properties (on this distinction OVG Lüneburg, ruling of August 26, 1996, loc. Cit.). Owners of these properties would regularly have to pay the minimum contribution alone, although - mathematically - they would have to pay a considerably higher amount for sealing itself. This group of plots is often classic single-family house plots and medium-sized commercial plots that have a comparatively high degree of sealing. Their predisposition to a mere minimum contribution would turn the legislature's goal of being able to take greater account of the polluter pays principle into account when calculating entertainment association contributions (Landtag printed matter 15/3245, p. 26), into its opposite. This cannot be countered by the fact that the entertainment associations according to Section 101 (3) NWG could also waive the requirement to levy either minimum or difficult contributions. The law provides for both ways of collecting contributions side by side. In terms of substance, it may be necessary for an association to set a minimum contribution for reasons of economic efficiency as well as to levy difficult contributions in order to take account of the stated objectives of the law.
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