Street Dedication

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Dedication is a general decree by which streets, paths and squares are given the quality of a “public street”. The dedication is ordered by the responsible road building authority and made public . The dedication allows everyone to use the road ( public use ) and classifies the road into a road group. The dedication can also stipulate that traffic areas are only used publicly to a limited extent (pedestrians or cyclists).

background

The term “public road” in common usage does not always correspond to the actual, legal circumstances.

When a road is newly built, it is initially a private road in the legal sense . This applies regardless of the building owner or the size of the street - with a courtyard access to the farm as well as with a motorway. Roads in newly established building areas are initially private roads. On the other hand, there is a demand that the federal, state and local governments make public roads available, i.e. make public roads out of private roads. This is done through the dedication . The dedication must be made public, for example in the official gazette or a local daily newspaper.

In principle, all land on which there are paths, streets, and squares belongs to the traffic ground , which in turn is differentiated according to property and usage rights. All public law regulations that affect roads apply exclusively to public roads. Public law does not apply to private roads. How important are public roads, for example, for the construction law, is visible because, for example, according to §§ 4 and 5 of the state building code NRW building may only be built if the property is located on a public road and that from this traffic area especially for the fire service a Access or passage is to be created.

The content of the dedication can be restricted to certain types of use (e.g. pedestrian traffic), purposes of use (e.g. way to school), user groups (e.g. residents) or in any other way (e.g. time limitation of use). A street group (street class) is assigned with the dedication. Examples of the categorization of the road are federal autobahn or federal, state, district or municipal road. According to the Bavarian Roads and Roads Act, the following classes are divided: State roads, district roads, communal roads, local roads (communal roads according to Art. 46) as well as public field and forest paths, restricted-public roads, owner paths (other public roads according to Art. 53). In doing so, street directories are kept for state and district roads, and inventories for municipal roads and other public roads. In addition, local thoroughfares are the part of a state road or district road that is located within the closed local area and is also intended to develop the adjacent properties or is used for multiple links in the local road network.

If a street is dedicated that is in the area of ​​a legally binding development plan , the dedication must correspond to the stipulations of this development plan (BVerwG, judgment of November 1, 1974, IV C 38.71). In Baden-Württemberg, Section 5 (6) of the Road Act regulates that a traffic area is considered dedicated if it has been laid out as a result of a formal procedure in accordance with other legal regulations (development plan) and is finally left to public transport. The Berlin Road Act stipulates in Section 3: “(1) A street, a path or a square is given the status of a public street by dedication. (2) The prerequisite for the dedication is that the carrier of the road construction load is the owner of the land serving the road or the owners and those otherwise entitled to use the road have consented to the dedication [...] "

Effects and legal consequences

Semi-public private road with limited parking, as residents have parking spaces on the property

In accordance with Section 127 of the Building Code, the cities and municipalities levy a development contribution to cover their expenses for development facilities that are not otherwise covered.

The use of the public roads is permitted to everyone within the scope of the dedication and the traffic regulations ( public use ), but there is no entitlement to permanent use. In addition to being used for traffic, the public has the right to stay on the streets, for political or cultural purposes, for street music and the like. Residents on public roads are allowed to use parts of the road in front of their properties beyond common use for the purposes of the properties, as long as no disturbances or damage occur. This "resident use" is also referred to as extended public use. A typical example used to be when coals or briquettes were dumped on the sidewalk in front of the houses. This includes, for example, access to the houses or driving over the sidewalk to the garage or parking space.

In the case of public roads, the residents are obliged to clean the street in accordance with the local street cleaning statute, unless the street is cleaned mechanically by the city or municipality. Street cleaning fees can then also be charged. The residents are responsible for winter maintenance. This means that in wintry road conditions, the residents have the obligation to keep the sidewalk completely or partially free of snow and ice for pedestrians. In North Rhine-Westphalia , the municipalities are to collect contributions for the construction, expansion and improvement of public roads, paths and squares in accordance with Section 8 of the Municipal Tax Act NRW . The contributions are collected from the property owners in return for being given the opportunity to use the development facilities.

Citizens are entitled to legal remedies against the designation of streets. Since the Bureaucracy Reduction Act II NRW, direct action against the dedication is permissible before the administrative court. In court proceedings, the plaintiff submits whether and how his rights are violated by the dedication. The highest state road construction authority (Section 2 (6) FStrG) is responsible for the designation of a federal trunk road and the road construction authority or the carrier of the road construction burden is usually responsible for the designation of state roads according to the state road laws, and objections must be made accordingly.

The use of the public road beyond public use and independent of residential use is permitted ( special use ), but a permit is required. Cities and municipalities can only issue permits for a period of time or upon revocation. Frequent special uses are outdoor catering or sales stands. In contrast to private roads, applicants are entitled to a permit for public roads, provided that there are no reasons of public safety and order to the contrary.

As a dedication an act is referred to, which makes a public matter of a thing. The dedication explains that the thing in question is intended to serve a specific public purpose. It should be noted that the dedication alone does not automatically make the matter in question a public matter, but only when it has actually been put into service.

special cases

Desedication

De-dedication, also called confiscation in road and right of way , is the administrative act (in official language also general decree ) through which a dedicated road (path, square) loses the quality of a public road. The pulled-in street may no longer be used by the general public. Furthermore, with the deedication, all rights and obligations of the road construction agency for the road under road law no longer apply. For the street property only the legal provisions apply as for private property, whereby it can also be a private property of the municipality . As a result of the deedication, the cultivation bans and restrictions resulting from the dedication by virtue of the law no longer apply. The confiscation must be made public three months in advance in order to give an opportunity to raise objections . A street should be withdrawn when it no longer has any traffic significance or other reasons of "public good" exist.

Reallocation

Sometimes referred to as change dedication and road and right of way and reclassification or partial confiscation , called the reclassification is a Amtsakt, a road is changed by the dedication. This is done, for example, to convert a street dedicated to all types of traffic into a pedestrian zone. Under certain conditions, the administrative act can be simplified: "If a street is widened, straightened, slightly relocated or supplemented, the new part of the street is considered dedicated by the traffic handover."

Jurisdiction

The responsibility for the dedication is regulated in the road laws of the federal states. In Saxony, according to § 6 SächsStrG, the municipality is responsible for the dedication of local and other roads. The zoning only covers those properties whose parcel numbers are expressly listed in the zoning order. A tacit dedication is excluded. For Saxony, the Saxon Road Act stipulates that the roads that were used by the public at the time the Saxon Road Act came into force are public roads according to the Road Act (Section 53 SächsStrG). It is based solely on whether at the relevant point in time on February 16, 1993 the route or the road was actually used for public transport. If a path was only used as an access route for residents, it is typically not in common use by the public. If a private road owner has effectively prevented the use of the road surface by a cordon for the general public at the relevant point in time, there is no public use. The publicity of the path may have to be re-established by dedication.

In North Rhine-Westphalia roads have only been designated since the Roads and Roads Act came into force in January 1962. Most roads, however, were established and laid out before 1962. Some of them may have become "public" according to earlier Prussian laws. On the other hand, the property “dedicated / public” is not clearly established for many streets and the legal situation is unclear. When it comes to litigation before the administrative court, the legal capacity is often decisive for the outcome of the court proceedings. That is why cities and municipalities are also dedicating older roads to improve legal security.

See also

Web links

Individual evidence

  1. ↑ a b Dedication, confiscation, partial confiscation and reclassification in road and right of way . bochum.de
  2. ↑ Bavarian Roads and Paths Act (BayStrWG) Art. 6 Dedication
  3. ↑ Bavarian Roads and Paths Act (BayStrWG) Art. 3 Classification of streets and Art. 4 through town
  4. ↑ stadtentwicklung.berlin.de ( Memento of December 19, 2013 in the Internet Archive ) (PDF) Berlin Road Act (BerlStrG) of July 13, 1999 (GVBl. P. 380) last amended by the law of December 4, 2008 (GVBl. P . 466)
  5. ↑ Dedication in the road and right of way
  6. ↑ Bavarian Road and Roads Act, Section 6, Paragraph (8)
  7. ↑ Saxon Higher Administrative Court: Order of January 15, 2001, Az. 1 B 636/00
  8. ↑ Road law: “Public” road without a dedication?