CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at nine hours thirty minutes on the eighteenth of February two thousand twenty-two.
Subsequent proceeding filed by SOFÍA MARCELA GONZÁLEZ BARQUERO, in her capacity as MAYOR OF ALAJUELA, in relation to judgment No. 2021-024616 of 13:43 hours on October 29, 2021.
Whereas:
- 1By brief incorporated into the digital case file at 15:33 hours on January 4, 2022, the petitioner filed a request for clarification and supplementation in relation to judgment No. 2021-024616 of 13:43 hours on October 29, 2021, given that “In a first instance, it had been made abundantly clear that the ADMINISTRATIVE LITIGATION COURT in a judgment cited in the year 2018, through official letter No. MA-PSJ-2079-2014 dated December 4, 2014 (...) As can be seen, the Administrative Litigation Court, Third Section of the Second Judicial Circuit of San José Goicoechea, through the cited resolution, considered that contrary to what was agreed in ordinary session 13-2013 of March twenty-six, two thousand thirteen, and confirmed in ordinary session number 45-2013 of November fifth of that same year, the provision regulated in Article 33 of the Ley Forestal must prevail over the regulatory provision contained in numeral 43 of the Urban Regulatory Plan of the Central Canton of Alajuela, the latter being hierarchically inferior to the former and expressly contradicting it, by introducing greater limitations than those provided for in the legal text regarding the delimitation of spring (naciente) protection areas.It is for that reason that it annuls the agreement contained in Article 4, Chapter V, of ordinary session number 45-2013 of November fifth, two thousand thirteen, adopted by the Municipal Council of Alajuela, regarding what was the subject of grievance and, by connection, the agreement contained in Article 2, Chapter 6 of ordinary session number 13-2013 of March twenty-sixth, two thousand thirteen, adopted by the Municipal Council of Alajuela. Based on the resolution in question, the Legal Services Process recommends the following: Suspend the application of the regulatory provision contained in numeral 43 of the Urban Regulatory Plan of the Central Canton of Alajuela, so that from this moment on, the provision regulated in Article 33 of the Ley Forestal applies, which reads: 'Protection areas. The following are declared protection areas: The areas bordering permanent springs (nacientes), defined within a radius of one hundred meters measured horizontally.A strip of fifteen meters in rural areas and ten meters in urban areas, measured horizontally on both sides, on the banks of rivers, streams, or brooks, if the terrain is flat, and fifty horizontal meters if the terrain is broken. A zone of fifty meters measured horizontally on the banks of natural lakes and reservoirs and on artificial lakes or reservoirs built by the State and its institutions. Private artificial lakes and reservoirs are excepted. The recharge areas and aquifers of the springs (manantiales), whose limits shall be determined by the competent bodies established in the regulation of this law.' That the Municipal Council be informed of what was resolved by the Administrative Litigation Court, Third Section of the Second Judicial Circuit of San José Goicoechea, through resolution number 557-2014, of nine hours ten minutes on November twentieth, two thousand fourteen, already cited.That the different Directorates, Processes, Sub-processes, and municipal Activities that are involved with the application of what was resolved by the Administrative Litigation Court, Third Section of the Second Judicial Circuit of San José Goicoechea, in the previous resolution be informed. That compliance be given to the agreement adopted by the Municipal Council of Alajuela, article number 3, Chapter VIII, of Ordinary Session number 36-2012 of Tuesday, September 11, 2012, where the following was ordered: 'It is resolved to apply the protection zone area for springs (nacientes) in accordance with Article 33 of the Ley Forestal, based on the legal criterion issued in official letter No. 80-ALCM-12, signed by Licda. Katya Cubero Montoya, and the criterion of the Attorney General's Office issued in official letter C-148-2012, and to refer to the administration so that they proceed in accordance with the Law, adjust the current Reglamento del Plan Regulador to law, and include it in the new Reglamento del Plan Regulador.Obtained ten votes, one opposed - absent MSC Fressia Calvo Chaves definitively approved.' It is reiterated, the POR TANTO of the judgment issued by the Administrative Litigation Court, third section, in resolution No. 557-2014 of nine hours ten minutes on November twentieth, two thousand fourteen, reads: 'The offer of the declaration of Msc. Viviana Ramos S. (director of the Functional Area of Hydrogeology of the Instituto Costarricense de Acueductos y Alcantarillados) in the capacity of witness-expert for the appellant company as evidence for better resolution is rejected. The appeal filed is granted, and therefore, the agreement contained in Article 4, Chapter V of ordinary session number 45-2013 of November fifth, two thousand thirteen adopted by the Municipal Council of Alajuela is annulled, regarding what was the subject of grievance and, by connection, the agreement contained in Article 2, Chapter 6 of ordinary session number 13-2013 of March twenty-sixth, two thousand thirteen, adopted by the Municipal Council of Alajuela; the administrative remedy is deemed exhausted.' Furthermore, it is of great importance to indicate that even the Minister of Environment and Energy, through resolution No. R-287-2019-MINAE, of seven hours thirty-five minutes on November sixth, two thousand nineteen, took cognizance of an Extraordinary Review Appeal, filed by Mrs.Annette Henchoz Castro, bearer of identity card number 1-725-409, in her capacity as Deputy Manager of the Instituto Costarricense de Acueductos y Alcantarillados, against resolution 2082-2018-SETENA, of eleven hours forty-five minutes on September 11, 2018, Case File No. D1-21307-2017-SETENA, and the Minister in said resolution rejected 'ad portas' the appeal filed as inadmissible and declared the motion to nullify against the aforementioned resolution without merit, and the resolution in question was upheld in all its terms, and it is where it is clarified that at the time it was resolved positively in favor of INDUSTRIA ALIMENTICIA J E DE COSTA RICA S.A. The agreement reached by the Municipal Council was ratified by the Administrative Litigation Court, in its capacity as improper hierarchical superior, who CONFIRMED it through resolution number 557-2014 of nine hours ten minutes on November twentieth, two thousand fourteen (see attached proof, official letter No. MA-PSJ-2079- 2014), therefore, the land use (uso de suelo) was issued based on said judicial resolution.It was also indicated that, subsequently, another judgment was generated by the Administrative Litigation Court in a similar case, that of Mr. Víctor Ureña, where the criterion already expressed in the case of the company Industria Alimentaria J E S.A. is RATIFIED, being even broader in the criterion, where the judges delivered a 'reprimand' to this Municipality for the fact that the same situation continued to occur, where it was repeatedly clarified that the protection area is 100 meters, and based on that, the Municipality acted in accordance with the law, in attention, obedience, and compliance with the judicial resolutions issued, and it is verified that the acts issued by the Administration at the time were CONFIRMED BY THE IMPROPER HIERARCHICAL SUPERIOR, not once, but twice, RATIFYING the position and making clear and establishing what had to be done, so the appellant's argument that the agreement manifested the illegality of the act and the institution's lack of authority to make a modification is not valid, given that precisely the acts issued were ratified on two occasions by the Administrative Litigation Court.Subsequently, a brief was filed on July 21, 2021, at 4:06 p.m., presented as 'evidence for better resolution,' by Licda. Flor Eugenia González Zamora, Internal Auditor, through official letter No. 0184-AI-07-2021 (...) It was verified that this Mayor's Office carried out multiple actions regarding 'Report No. 05-2020' referring to the 'Special nature study regarding a complaint concerning alleged irregularities in the development of the urban project of Lankaster Condominium located in Desamparados, Alajuela,' issued by the Internal Audit of this Local Government. By reason of the foregoing, it was demonstrated in proven fact b) of the judgment in question (No. 2021024616) that from the moment said Report was received on September 7, 2020, when the official letter No. 0181-AI-09-2020, signed by Lic. Carlos Valverde Vargas, Acting Internal Auditor, was received in the Office of the Municipal Mayor, coordination of said recommendations began, and it is when on September 11, 2020, Ing. Roy Delgado Alpízar, Coordinator of the Planning and Infrastructure Construction Process, referred to the protected party official letter MA-PPCI-0552-2020.With the referenced official letter, Ing. Delgado Alpízar responded to the official letter MA-A-3282-2020 from the administrated party. Through official letter MASCM-2065-2020, dated November 25, 2020, signed by Licda. María del Pilar Muñoz Alvarado, Acting Coordinator of the Sub-process of the Municipal Council Secretariat, Report 05-2020 'Special nature study regarding a complaint referring to alleged irregularities in the development of the urban project of the 'Lankaster' Condominium located in Desamparados, Alajuela' was forwarded to the Mayor's Office. Likewise, as proven fact d), it was verified that on December 8, 2020, the Mayor's Office convened a meeting to analyze and proceed as appropriate regarding the referenced Report, and the summoned meeting was attended by the Coordinators of the Legal Services Process, the Fiscal and Urban Control Process, and also the Constructive Control Activity, JUST AS INDICATED IN THE SOLE RECOMMENDATION CONTAINED IN THE INTERNAL AUDIT REPORT.Additionally, the Coordinator of the Planning and Municipal Infrastructure Construction Process, who is the Superior of the Constructive Control Activity, was summoned to that meeting. Ing. Roy Delgado Alpízar, Coordinator of the Planning and Infrastructure Construction Process, on that same December 8, 2020, requested from Ing. Emerson Bone Moya, Coordinator of the Fiscal and Urban Control Process, that a copy of the documentation addressed to the Works Committee of the Municipal Council related to the Construction of the Lankaster Condominium be sent to him. Likewise, Ing. Bone Moya refers official letter MA-PCFU-1515-2020, addressed to Mr. Gleen Andrés Rojas Morales, of the Permanent Works Committee. It is of great importance to indicate that Ing. Roy Delgado A.'s request originates from a request for information made by the Municipal Mayor through official letter MA-A-5049-2020, dated December 8, 2020.Furthermore, Ing. Roy Delgado Alpízar, on December 8, 2020, requested from Ing. María Auxiliadora Castro Abarca, Coordinator of the Municipal Aqueduct and Sewer Sub-process, that a copy of the documentation addressed to the Works Committee of the Municipal Council of Alajuela related to the Construction of the Lankaster Condominium be sent to him. Ing. Castro Abarca refers official letter MA-SASM-399-20, addressed to the Permanent Works Committee. The request from Ing. Roy Delgado and in the same manner, said request for information was made by this Mayor's Office through official letter MA-A-5049-2020, dated December 8, 2020. In the same condition, it was verified in proven fact f) of the aforementioned judgment that through official letter MAPPCI-0826-2020, dated December 11, 2020, Ing. Delgado Alpízar requested from Arq. Marvin A. Barberena Ríos, Coordinator of the Constructive Control Activity, a detailed report on the Approval Process for Construction Permits for the Lankaster Condominium urban project; said requirement originated from the Mayor's Office through official letter MA-A-5049-2020, dated December 8, 2020.Subsequently, Arq. Marvin Barberena and Ing. Roy Delgado sent to the Mayor's Office on January 19, 2021, official letter No. MA-ACC-0236-2021, dated January 13, 2021, in which both officials refer to Report 05-2020 'Essential nature study regarding a complaint referring to alleged irregularities in the development of the urban project of the 'Lankaster' Condominium located in Desamparados, Alajuela.' By February 9, 2021, through official letter No. MA-ACC-931-2021, Arq. Marvin Barberena Ríos provided the respective report, referring to the Process of granting construction permits corresponding to the Lankaster Condominium urban project. Additionally, with the referenced official letter, Arq. Barberena responded to official letter MA-A-632-2021 signed by me, and to official letter MA-PPCI-0826-2020 signed by the Coordinator of the Planning and Infrastructure Construction Process. On March 25, 2021, the Mayor's Office convened a meeting to give respective follow-up to matters regarding Report 05-2020, and said meeting was attended by Ing. Roy Delgado Alpízar, Coordinator of the Planning and Infrastructure Construction Process.It is extremely important to indicate that on Wednesday, July 28 of the current year, a meeting was held attended by the Mayor, the Coordinator of the Fiscal and Urban Control Process, the Director of Planning and Infrastructure Construction, the Coordinator of the Legal Services Process, a lawyer, and an advisor to the Mayor's Office, who thoroughly analyzed the sole recommendation of the Audit report in question, and it was agreed that, according to the existence of an agreement of the Municipal Council, specifically agreement No. MA-SCM-508-2020, dated March 27, 2020, taken from Article No. 14, Chapter VI of ordinary session No. 11-2020 of March 17, 2020 (...) Said agreement AUTHORIZED the use of the roadway to Mr. Jorge Rojas Villalobos, representative of Industrias Alimenticias JE de Costa Rica S.A., but it was not used as such; rather, on one side of the condominium, a small parking area was established, and on the other side, the site was used as a green zone.Additionally, the easement (servidumbre) for wastewater is not in use, as these waters are directed to the retention pond, so there is a municipal agreement that authorized that use. Through official letter No. MA-A-4383-2021 dated August 23, 2021, the due response to official letters 0181-AI-09-2020, 0048-AI-02-2021, 0098-AI-04-2021, 0180-AI-07-2021, and 0190-AI-07-2021 was sent via email to Licda. Flor González Zamora, Internal Auditor, in which she was informed that: 'I hereby proceed to respond to official letter 0181-AI-09-2020, through which the Internal Audit of this Municipality refers to this Municipal Mayor's Office the document corresponding to Report 05-2020 'Special nature study regarding a complaint concerning alleged irregularities in the development of the urban project of the 'Lankaster' Condominium located in Desamparados, Alajuela,' which contains a single recommendation for the Administration, detailed below verbatim: in coordination with the Legal Services Process, the Fiscal and Urban Control Process, and the Constructive Control Activity, they must analyze what is discussed in this report and take the administrative actions that are legally appropriate, in order to establish the degree of responsibility or sanction that corresponds, regarding the actions of the developer for the changes made to the urban project without prior approval or having the proper construction permits.' In attention to the official letter and report received, both mentioned in the first paragraph, I state the following: It is important to indicate that this Municipal Mayor's Office has carried out multiple actions regarding Report 05-2020 referring to the 'Special nature study regarding a complaint referring to alleged irregularities in the development of the urban project of the Lankaster Condominium located in Desamparados, Alajuela.' Firstly, on September 7, 2020, official letter 0181-AI-09-2020, signed by Lic. Carlos Valverde Vargas, Acting Internal Auditor of the Municipality of Alajuela, was received in the Office of the Municipal Mayor, through which Report 05-2020 was delivered for its analysis.On September 11, 2020, through official letter MA-A-3282-2020, the Municipal Mayor's Office requested information from Ing. Roy Delgado Alpízar, Coordinator of the Planning and Infrastructure Construction Process, who responded with official letter MA-PPCI-0552-2020. With official letter MA-SCM-2065-2020, dated November 25, 2020, signed by Licda. María del Pilar Muñoz Alvarado, Acting Coordinator of the Sub-process of the Secretariat of the Municipal Council of the Municipality of Alajuela, Report 05-2020 was forwarded to this Municipal Mayor's Office. By December 8, 2020, the undersigned convened a meeting to analyze and establish mechanisms for resolving the recommendation provided in the referenced report, summoning to it the Coordinators of the Legal Services and Fiscal and Urban Control Processes and also of the Constructive Control Activity, just as indicated in the sole recommendation contained in the Internal Audit report.Additionally, the Coordinator of the Planning and Infrastructure Construction Process, who is the Superior of the Constructive Control Activity, was summoned to that meeting. On that same date, December 8, 2020, Ing. Roy Delgado Alpízar, Coordinator of the Planning and Infrastructure Construction Process, requested from Ing. Emerson Bone Moya, Coordinator of the Fiscal and Urban Control Process, that a copy of the documentation addressed to the Works Committee of the Municipal Council related to the Construction of the Lankaster Condominium be sent to him; since that office had sent official letter MA-PCFU-1515-2020 to Mr. Gleen Andrés Rojas Morales, Alderman and Coordinator of the Permanent Works Committee. It is important to indicate that Ing. Delgado Alpízar's request originates from a requirement for information requested by the undersigned through official letter MA-A-5049-2020, dated December 8, 2020.Additionally, on December 8, 2020, Ing. Delgado Alpízar requested from Ing. María Auxiliadora Castro Abarca, Coordinator of the Municipal Aqueduct and Sewer Sub-process, a copy of the documentation addressed to the Works Committee of the Municipal Council of Alajuela related to the Construction of the Lankaster Condominium; since that office had sent information to that Committee through official letter MA-SASM-399-20. Both requests for information were made by this Municipal Mayor's Office through official letter MA-A-5049-2020 dated December 8, 2020. In the same manner, through official letter MA-PPC-0826-2020, dated December 11, 2020, Ing. Delgado Alpízar requested from Arq. Marvin A. Barberena Ríos, Coordinator of the Constructive Control Activity, a detailed report on the process of approving construction permits corresponding to the Lankaster Condominium Urban Project. Said request for information originated from this Municipal Mayor's Office through official letter MA-A-5049-2020, dated December 8, 2020.Arq. Marvin Barberena Ríos and Ing. Roy Delgado Alpízar sent to this Municipal Mayor's Office on January 19, 2021, official letter MA-ACC-0236-2021, dated January 13, 2021, through which both officials refer to Report 05-2020 'Special nature study regarding a complaint referring to alleged irregularities in the development of the urban project of the 'Lankaster' Condominium located in Desamparados, Alajuela.' In turn, on February 9, 2021, through official letter MA-Acc-931-2021, Arq. Marvin Barberena Ríos provided the respective report referring to the process of granting construction permits for the Lankaster Condominium Urban Project. Additionally, through the referenced official letter, Arq. Barberena Ríos responded to official letter MA-A-632-2021 from this Municipal Mayor's Office and to official letter MA-PPCI-0826-2020 signed by the Coordinator of the Planning and Infrastructure Construction Process.On March 25, 2021, the undersigned convened a meeting to provide respective follow-up to what was indicated in Report 05-2020, with Ing. Roy Delgado Alpízar, Coordinator of the Planning and Infrastructure Construction Process. Furthermore, a new meeting was scheduled and held on July 28 of the current year, in order to prepare the definitive response to the sole recommendation of Report 05-2020. Pursuant to what was described above and as a result of the meeting held on July 28 of the current year at the Municipal Mayor's Office, in order to define and plan a definitive solution to what was indicated in the Internal Audit report and to have clarity on the situation, both technically and legally, of what occurred in the construction process of the Lankaster Condominium, the Legal Services Process requested the respective technical criterion on the facts mentioned above from Arq. Marvin Barberena Ríos, who referred official letter MA-ACC-3424-2021.In the official letter mentioned in the previous paragraph, Arq. Barberena Ríos provided a recount of everything that occurred in the approval process for the construction permits of the Lankaster Condominium, indicating through official letters MA-ACC-01142-2017 and MA-ACC-7193-2018, corresponding to Procedures 688452-APC and 806574-APC respectively, that construction permits were granted for the construction of a perimeter wall (tapia perimetral) and some access points, and that also, as part of said construction permit, the construction of a guardhouse on property 488367-000 was included, which has no relation to the mentioned Condominium, according to what is described in the construction plans for property 488366-000, with cadastral plan A-1809365-2015. The foregoing should be understood to mean that the mentioned guardhouse is not part of the approved condominium project; rather, the construction permits for it were processed subsequently.Additionally, in the official letters mentioned in the previous paragraph, Arq. Barberena Ríos indicated to the Legal Services Process that through official letter MA-ACC-04877-2019, the Constructive Control Activity at the time forwarded, to be sent to the Knowledge of the Municipal Council, the corresponding documentation and the respective request for approval of the construction permit for the Lankaster Condominium. The above, according to what is described in the construction plans. The requested construction permits were approved by the Municipal Council for property 488366-000, with counter-signed plan 1809365-2015. Arq. Barberena Ríos pointed out in his report that, through official letter MA-ACC-5867-2019, the then Municipal Mayor's Office had already been informed of the conditions of said urban project. The purpose of the mentioned official letter was for that Municipal Mayor's Office to forward it to the knowledge of the Works Committee of the Municipal Council.The conditions indicated are the same ones referred to in official letter MA-ACC-04877-2019, submitted at the time to the Municipal Council for its knowledge and approval of the respective construction permit. Arq. Barberena Ríos also points out that through official letter MA-SCM-1454-2019, procedure 743851-APC was approved by the Municipal Council, corresponding to the construction permit for the Lankaster Condominium. Given that the Constructive Control Activity, by reason of said Agreement of the Collegiate Body and according to official letter MA-ACC-6806-2019, granted the respective construction permit for the construction of said Condominium, all according to what is described in duly approved construction plans and on property 488366-000, with cadastral plan 1809365-2015. Additionally, through procedure 866847-APC and according to official letter MA-ACC-5113-2020, the respective construction permit for the pool was subsequently issued, based on the submitted construction plans and, again, on property 488366-000, with cadastral plan 1809365-2015.According to what was indicated by Arq. Barberena Ríos, after analyzing the corresponding administrative file, in addition to conducting the respective inspection of the project jointly with the Planning and Infrastructure Construction Process, this Activity considers that the repeatedly mentioned urban project has had a logical and orderly sequence in its formation within the procedural steps carried out, and that the project, from its origin, has had a very high degree of complexity in its processing. However, the Developer managed to correct the 'shortcomings' or missing requirements in the respective permit procedures submitted before this Activity. Indeed, the Constructive Control Activity informed the Municipal Council on two occasions about the incidents of that processing, making clear what the conditions of the project were. Furthermore, I attached enclosures 2 and 3 to official letter MA-ACC-3424-2021, and subsequently, the Municipal Council agreed to grant the respective endorsement so that the Constructive Control Activity could continue and conclude the procedure for the approval of the respective permit.Arq. Marvin Barberena Ríos stated that regarding the location of two 'additional subsidiary properties' supposedly integrated into the already approved condominium project, he clarifies that these are not subsidiary properties and therefore do not correspond to the project approved through official letter MA-ACC-6806-2020. The foregoing, given that said properties correspond to those that border the easement (servidumbre) that was delivered to the Municipality of Alajuela and are unrelated to the duly approved condominium (...) In the same manner, Arq. Barberena Ríos indicated regarding the use of the easement (servidumbre), which belongs to the Municipality of Alajuela and is located between properties 488367-000 and 488366-000, whose use is for the passage of storm drainage and sanitary pipes for the 'Colinas del Viento' project, the following: 'it must be clarified that it is currently unused, as the storm drainage and sanitary pipes in the development currently do not pass through that sector; rather, the sanitary pipe passes through another easement (servidumbre) located on the east side of the property described by plan No. 1809367-2015.' In addition to what was expressed in the previous paragraph, the Municipal Council agreed to grant a use permit over said easement (servidumbre) in favor of the Developer, which is transcribed in official letter MASCM-508-2020, addressed to the Internal Audit, through which Article 14, Chapter VI, of Ordinary Session 11-2020, held on March 17, 2020, is transcribed, in which the then Municipal Council agreed to approve the use of said easement (servidumbre) for '...the construction of an internal vehicular road for the Lankaster condominium over the storm drainage easement (servidumbre) (unused) of the Colinas del Viento Residential complex, transferred to the Municipality of Alajuela...'.This matter is being followed up on through the Fiscal and Urban Control Process (...) By virtue of the foregoing, as indicated by the Mayor's Office to the Internal Audit, via email, according to proof of sending dated September 1, 2022, at 11:52 a.m., a broad explanation was provided of the actions and procedures related to the issue in question, even complying with what was established in the last meeting held at the Mayor's Office. The Record of Completed Work Without License 503-2021 was prepared, and the Legal Representative of the Lankaster Condominium was notified regarding the construction of an apparent parking area in paving stones of approximately 24 m² and a concrete wall of 6 linear meters by approximately 2.5 meters in height.' The foregoing, because such constructions breach the agreement reached by the Municipal Council, transcribed in official letter MA-SCM-508-2020, addressed to the Internal Audit, through which Article 14, Chapter VI, of Ordinary Session 11-2020, held on March 17, 2020, is transcribed, in which the then Municipal Council agreed to approve the use of said easement (servidumbre).
… for "the construction of an internal vehicular road for the Lankaster condominium over the stormwater easement (servidumbre de aguas pluviales) (not used) of the Residencial Colinas del Viento and transferred to the Municipality of Alajuela. It is of utmost relevance to indicate that, it is not that the administration failed to act in accordance with the recommendation of the Audit report, but rather that each of the actions taken was not reported to the Municipal Audit, until a definitive Solution to the reported matter was available. And it is for this reason that, it is evidenced that this Administration has carried out the corresponding actions and steps in order to comply with the provisions of the sole recommendation of the Internal Audit included in Report O5-2020, and it could rather have been remiss in informing the Internal Audit in a timely manner of each of the actions taken; however, it is the responsibility of the Internal Audit itself to provide a response to the complainants regarding the actions submitted to that unit. however, in the month of September 2021, when the Audit was informed of what had been done, a proposal for a definitive solution to communicate was already available, but the Constitutional Chamber did not take into consideration that the recommendations issued in the Report in question had indeed been executed, and it is when it is verified that the Administration has acted in accordance with the law to be able to provide both a response and a solution to what is indicated in the report in question.
Based on the foregoing. we respectfully request the Constitutional Chamber for the respective clarification and addition of its resolution, as it is confusing, since the Administration has been taking actions and what is ordered in "Report No." 05-2020: "Special study in response to a complaint regarding alleged irregularities in the development of the urban project of the "Lankaster" Condominium located in Desamparados, Alajuela" has been executed. Likewise, we consider that said argument should have been addressed in the resolution; however, all the steps and actions taken occurred over the course of almost six months, and the Chamber's resolution was not notified until December 30, 2021. Based on the foregoing, this municipality requests the honorable magistrates to clarify and supplement the decision on this matter, as the resolution contains a development that does not correspond to reality, and what was appropriate —even— was to dismiss the Amparo Appeal (Recurso de Amparo) in ALL ITS EXTREMES."
- 2In the proceedings followed, the legal requirements have been observed.
Drafted by Judge Picado Brenes; and,
Considering:
I.Preliminarily. The second paragraph of Article 11 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) is clear in indicating that "There shall be no appeal against the judgments, orders, or decrees of the constitutional jurisdiction."
II. In Judgment No. 2021-024616 of 1:43 p.m. on October 29, 2021, it was ordered
"The appeal is granted, against SETENA and the Municipality of Alajuela. It is ordered to a) Humberto Soto Herrera, in his capacity as Mayor of Alajuela, or whoever holds that position in his stead, to issue the pertinent orders and carry out all actions that are within the scope of his powers, so that within a period of no more than ONE MONTH, he addresses and resolves the recommendations issued in report 5-2020, and notifies the decision; b) likewise, it is ordered to Patricia Quirós Quirós, in her capacity as Manager of the Groundwater, Irrigation, and Drainage Service, or whoever holds that position, that within a period of no more than two months, counted from the notification of this judgment, she must carry out a study on the Lankaster project, in order to determine if there is an impact on groundwater and on the Pasito and Gutiérrez-Lankaste springs, for which she must issue the necessary recommendations, in order to guarantee a healthy and ecologically balanced environment, for which she must coordinate the pertinent matters with the relevant institutions and ensure its compliance; c) finally, it is ordered to Cynthia Barzuna Gutiérrez, in her capacity as Secretary General of the National Environmental Technical Secretariat (SETENA), or whoever holds that position, not to re-incur in the acts that gave rise to the granting of this appeal and to take the necessary measures in order to comply with the recommendations issued by SENARA in its study within the timeframe indicated therein.
The appealed authorities are warned that, in accordance with the provisions of Article 71, of the Law of Constitutional Jurisdiction, imprisonment from three months to two years or a fine of twenty to sixty days shall be imposed on anyone who receives an order that must be complied with or enforced, issued within an amparo appeal, and does not comply with it or does not enforce it, provided that the offense is not more severely penalized. In all other respects, the appeal is dismissed. The Municipality of Alajuela and the State are ordered to pay the costs, damages, and losses caused by the facts that serve as the basis for this ruling, which shall be liquidated in the enforcement of the judgment in the contentious-administrative jurisdiction. Judge Castillo Víquez dissents, and dismisses the appeal regarding the lack of validation of the hydrogeological studies of the questioned project by SENARA. Judge Hernández López dissents and dismisses the appeal. Judge Salazar Alvarado dissents and dismisses the amparo appeal. Notify.. -"
III.Regarding the petition filed. In the case under study, the petitioning party files a petition for addition and clarification in relation to Judgment No. 2021-024616 of 1:43 p.m. on October 29, 2021. From the document, it can be inferred that the appealed authority is dissatisfied with the decision, as it considers that the corresponding procedure has been followed for the situation, and therefore the appeal should have been dismissed. Thus, this Chamber considers that what the appellee intends is to raise a series of arguments, in order for the Chamber's ruling to be adjusted, as it is dissatisfied with the decision, and in accordance with what is indicated in numeral 11 of the Law of Constitutional Jurisdiction, it is deemed improper. Consequently, the appropriate course is not to accept the petition.
IV.Documentation provided to the case file. The parties are warned that if they have provided any paper document, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be removed from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, all material that is not removed within this period will be destroyed, as provided in the "Regulation on Electronic Case Files before the Judiciary" (Reglamento sobre Expediente Electrónico ante el Poder Judicial), approved by the Full Court in session No. 27-11 of August 22, 2011, Article XXVI and published in Judicial Bulletin No. 19 of January 26, 2012, as well as in the agreement approved by the Superior Council of the Judiciary, in session No. 43-12 held on May 3, 2012, Article LXXXI.
Therefore:
The petition filed is denied.
Fernando Castillo V.
President Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ana María Picado B.
Jorge Isaac Solano A.
CASE FILE No. 21-009728-0007-CO It is a faithful copy of the original - Taken from Nexus.PJ on: 08-05-2026 17:06:59.