Date of Resolution: 09:30 a.m. on May 28, 2024 Type of matter: Amparo action SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at nine hours thirty minutes on the twenty-eighth of May two thousand twenty-four.
Amparo action brought by FRANCISCO EDUARDO VILLEGAS VILLALOBOS, identity card 0401010590, against INSTITUTO COSTARRICENSE DE FERROCARRILES, SISTEMA NACIONAL DE ÁREAS DE CONSERVACIÓN, AND MUNICIPALIDAD DE BELÉN.
RESULTANDO:
- 1By means of a brief filed at 2:52 p.m. on March 17, 2024, the petitioner brought an amparo action against Instituto Costarricense de Ferrocarriles, Sistema Nacional de Áreas de Conservación, and Municipalidad de Belén, since, as he asserts, in San Antonio de Belén, from Pizza Hut 25 meters south and 15 meters west, Barrio San Francisco, on the south side of Sur stores, there has existed for 70 years a Copey tree, one of only five individuals of that species in that canton. That tree is located in a sector near the path of the train line, which is a disused section, about 5 meters from the railway line. He states that, in October 2023, a neighbor complained about the existence of this tree in the location, and requested that SINAC authorize its felling. He narrates that, in light of this, in October 2023 SINAC issued official letter No. SINAC-ACC-OH1147-2023, which stated: "On the day of the Inspection and at the time of the visit, it was observed that the tree crown is to a large extent over the roof of the house owned by Mr.José Francisco Chacón, it does not present phytosanitary problems in the trunk, it also presents stilt roots (raíces fúlcreas), which are characteristic of the species, with a southward inclination found within the INCOFER right-of-way (derecho de vía)". The same official letter recommended: "After the field inspection was carried out, Mr. Chacón is recommended to take the pertinent steps before the INCOFER. Due to the situation that exists with the tree and his dwelling, since, since the Copey tree is located within the right-of-way, it is that Institution that must process the permit, whether for felling or pruning of said tree". That person carried out the felling procedure for said tree before INCOFER and the respondent institution issued official letter INCOFER-GOP-DOP-OF0012-2024, where it authorized the complete felling from the root of said tree to be carried out on March 15 and 16.He states that, despite 40 neighbors having sent a letter to various bodies to prevent the total felling of the tree, they have already been informed that the felling work begins on March 15 at 07:00 hours. Given this situation, Karol Dayana Carmona Alvarado, upon learning of the situation and obtaining the documentation, on March 14, 2024, filed the amparo action processed in expediente 24-007095-0007-CO, in which she requested that, as a precautionary measure, the felling of the tree that was scheduled for 07:00 hours on March 16 of this same year be suspended. He indicates that, although the Chamber had not issued any resolution in this regard at that time, dozens of neighbors who opposed the felling of the tree were at the site. Among the people who arrived at the location was councilor María Antonia Castro, who spoke with the parties and managed to get the Municipalidad de Belén to try to transplant the tree to a municipal park, which is scheduled to begin on March 18, 2024 first thing in the morning. He considers that such action violates his fundamental rights.
- 2By resolution of 11:09 a.m. on March 19, 2024, the action was admitted and a report was requested from the executive president of Instituto Costarricense de Ferrocarriles (INCOFER); from the director of the Heredia Office of the Central Conservation Area of Sistema Nacional de Áreas de Conservación (SINAC); as well as from the mayor and the president of the Concejo (Municipal Council), both of the Municipalidad de Belén, regarding the denounced facts.
- 3Thais María Zumbado Ramírez, in her capacity as mayor of Belén, reports under oath and indicates that the Environmental Unit of the Municipalidad de Belén received a request for felling of a Copey tree (Clusia uvitana, family Clusiacae), by José Francisco Chacón González on behalf of the commercial company CHAGORATA S.A., legal entity identification 3-101-143402, owner of the property of the Heredia district, registry number 135579-000, cadastral plan H-996441-91, a property that borders the INCOFER right-of-way to the north, considering that the tree causes damage to the roof, gutters, and floors of the dwelling located on the cited estate. By official letter of the Environmental Unit, No. UA-145-20023 of September 12, 2023, it forwards the matter to the attention of the Office of the Sistema de Áreas de Conservación SINAC-ACCVE of the Ministry of Environment and Energy, indicating that the tree in question poses a risk to the public electrical wiring, that the foliage of the tree is ¾ parts over the roof of the dwelling in question, and it has been at the site for many years.On October 17, the field visit report (informe de gira) was issued by officials of the Sistema Nacional de Áreas de Conservación Central, Heredia Office, through official letter No. SINAC-ACC-OH-1147-2023, which states: "After the field inspection was carried out, Mr. Chacón is recommended to take the pertinent steps before INCOFER. Due to the situation that exists with the tree and his dwelling, since the Copey tree is located within the right-of-way; it is that institution that must process the permit, whether for felling or pruning of said tree. No Protection area established by Article 33 of Law 7565 was located on the property". In the files of the Environmental Unit, there is a copy of the note dated January 24, 2024, signed by José Francisco Chacón González, addressed to INCOFER officials, in the stated capacity, where he indicates, in what is relevant, the following: "By reason of the foregoing, the environmental unit of Belén, as well as SINAC, having stated that the cited Copey tree is located within the right-of-way under that institute's jurisdiction, being located at a short distance from the building erected on my principal's property, three-quarters of the tree crown is located over the roof of the mentioned dwelling house, due to the tree roots, all of which entails for the building and for the people who inhabit and/or will inhabit it, an imminent danger, moved by which, I request that you AUTHORIZE us to CUT IT DOWN AND ELIMINATE IT FROM THE ROOT knowing of the non-existence of a budget on the part of INCOFER for such tasks, my principal assumes the EXPENSES THAT SUCH OBJECTIVE ENTAILS, for which purpose it will contract a company with experience in such work".By means of official letter Incofer-GOP-DOP-OF-0012-2024 of February 14, 2024, competent INCOFER officials replied to Chacón González, with a copy to the Municipalidad de Belén, indicating, in what is relevant, that in accordance with the documentation provided by both the Municipalidad de Belén and the Ministry of Environment and Energy, they authorize the removal of the Copey tree within the railway right-of-way, the safety of the properties adjacent to its location must be considered, and if any damage to third parties is incurred, his principal must be responsible for the damages caused, and likewise the removal of all waste material produced as a result of the removal must be assumed by the company. The authorization granted establishes that the work must be executed on the days of March 15 and 16, 2024, at a time from 7:00 am. to 4 pm. The Mayor's Office has evidence that the tree was pruned on the morning of March 16, 2024.
- 4Álvaro Bermúdez Peña, in his capacity as executive president of Instituto Costarricense de Ferrocarriles, reports under oath and indicates that on January 29, 2024, at 11:36 a.m., an email was received in the Directorate of Operations sent by Lic. José Francisco Chacón G. from the address [email protected], requesting authorization from INCOFER to carry out the felling of a tree located within the right-of-way in the San Antonio de Belén sector, which borders the interested party's property. Among the documents attached to his request, there is, in the first instance, a letter from the interested party describing the situation and some steps he has been taking to solve the problem the tree represents for his dwelling. Attached to this letter is the report of the Environmental Unit of the Municipalidad de Belén number UA-145-2023 of September 12, 2023, in which the general condition of the tree is assessed, stating it is in good condition, but the impact it has on the adjacent owner is evident; the report does not indicate that it is a tree to be conserved due to danger of extinction or any similar connotation of value to consider not felling it; furthermore, it is identified as a danger to the public electrical wiring.The photographs supporting the municipal report clearly show the large size of the tree, as well as the problems it generates for it, with its branches occupying a good part of the space over the dwelling roof. Likewise, his request also includes a Field Visit Report (Informe de Gira) from the Heredia Office of the Central Conservation Area, No. SINAC-ACC-OH-1147-2023. Said document mentions that the tree does not present phytosanitary problems of the trunk, that it is located within the INCOFER right-of-way, that the tree is not located within river, stream, or spring (naciente) conservation areas, that rather the tree is located on land for agricultural use and without forest. For the foregoing, the case recommendation was issued. Once the request with the cited documents was received, the tree felling request was considered appropriate, in the first instance considering that, technically by SINAC, the procedure is endorsed, and no technical basis is observed in the municipal official letter that contradicts what was established by SINAC; additionally, the risk situation of the adjacent owner is assessed.It is for this reason that INCOFER, through official letter Incofer-GOP-DOP-OF-0012-2024, authorizes the applicant for the felling of the tree, specifically for March 15 and 16 of the current year, at the time detailed in the official letter. It is worth mentioning that INCOFER also conducted an analysis of the situation presented by the tree in question, considering that its large size represents a danger to the neighbors, as well as the fact that it is located within the right-of-way established by Executive Decree No. 22483-MOPT of September 1, 1993, on the Dimensions of the Rights-of-Way in the National Railways (Art. 42 Law No. 7001, Organic Law of INCOFER), published in La Gaceta 174 of September 10, 1993. The elements that INCOFER had available to issue the authorization for the felling of the Copey tree must be assessed, that is, it is not a situation that was not assessed by the engineers who analyze safety and suitability issues for the stability of the railway line, but rather there is also a technical report from SINAC, this being the technical body with the legal capacity to issue reports and recommendations on these matters; however, in obedience to what was ordered by this Authority through the Resolution of eleven hours nine minutes on March nineteen, two thousand twenty-four, instructions were issued to suspend the scope of official letter Incofer-GOP-DOP-OF-0012-2024. He requests that the action be dismissed.
- 5Edwin Arguedas Campos, in his capacity as head of the Heredia Subregional Office of Sistema Nacional de Áreas de Conservación, reports under oath and indicates that in response to the request made by the coordinator of the Environmental Unit of the Municipalidad de Belén, in Official Letter UA 145-2023 of October 11, 2023, an inspection was carried out at the location where the referenced tree is located. In that proceeding, the petitioner was indeed recommended to appear before Instituto Costarricense de Ferrocarriles, so that it was that entity that made the request for felling or pruning to Sistema Nacional de Áreas de Conservación, since, although the Municipality requested the inspection, the tree is located on that entity's right-of-way. The rector and the one who grants permits for tree felling is that system and not that institute. The office received and attended to the inspection request, preparing a field visit report (informe de gira).In this sense, the administration acted in accordance with the legality framework and the constitutional framework, giving the corresponding processing to the inspection presented within the time or period stipulated by law. Given the considerations, the office fulfilled the constitutional mandate with the pertinent processing of the attention and presentation of the respective inspection and has not issued a felling or pruning permit for said tree, since no request has been received from Instituto Costarricense de Ferrocarriles. He requests that the action be dismissed.
- 6By resolution of 1:17 p.m. on April 26, 2024, the respondent authorities were required to inform this Court of the following: 1.- by whose order the pruning was executed; 2.- the reasons why, despite no judgment having been rendered in the amparo, the precautionary measure ordered by resolution of 11:09 a.m. on March 19, 2024, was disregarded; and 3.- the current state of the tree.
- 7Thais María Zumbado Ramírez, in her capacity as mayor of Belén, reports under oath and indicates that after consulting three different forestry engineers (ingenieros forestales) on what was requested, they recommended proceeding with a pruning of approximately 30%, but not total felling. This was made known to the Heredia office of SINAC. The pruning was carried out prior to the notification of the precautionary measure, which at that time had not even been formally communicated to the respondent institutions.
- 8Edwin Arguedas Campos, in his capacity as head of the Heredia Subregional Office of Sistema Nacional de Áreas de Conservación, reports under oath and indicates that he does not know who carried out the mutilation of the tree, as no procedure in this regard was carried out before this office. The Copey tree was left very damaged by the intervention carried out, as can be seen in the photos.
- 9Álvaro Bermúdez Peña, in his capacity as executive president of Instituto Costarricense de Ferrocarriles, reports under oath and indicates that INCOFER, within the scope of its powers, issued in the first instance an authorization to carry out the pruning and/or felling of the tree with the support of the documentation known to this Chamber, and subsequently the applicant was informed of what was ordered by the Chamber and, in addition, he was informed via email that the authorization was suspended, this as a way of adding to the process a reiteration of what was mandated by the Chamber, but furthermore, it is that the authorization was for two specific dates that had already passed at that time, which clearly demonstrates that INCOFER did not authorize any other date to carry out these actions.
- 10Teresita Venegas Murillo, in her capacity as president of the Concejo of Belén, reports under oath and indicates that this body has not participated in the denounced facts.
- 11The legal requirements have been observed in the proceedings followed.
Drafted by Magistrate Hess Herrera; and,
CONSIDERANDO:
I. PURPOSE OF THE ACTION
The petitioner points out that in the surroundings of Pizza Hut in San Antonio de Belén, in a sector near the path of the train line, is located one of the only five Copey trees that exist in that canton. Based on the request made by the owner of the land adjacent to the tree, so that he would be allowed to fell it, the Sistema de Áreas de Conservación recommended to the petitioner that he process the corresponding permit before Instituto Costarricense de Ferrocarriles, since the tree is located on the train right-of-way (derecho de vía). He adds that this entity, overlooking the fact that it is a native species (especie autóctona) very scarce in the canton of Belén, authorized the complete felling of the individual for March 15 and 16 of this year. He considers that what is ordered in this regard violates the right to a healthy and ecologically balanced environment.
II. SPECIFIC CASE
Due to the evident connection with what is argued and sought in the amparo action processed before this Chamber under expediente No. 24-007095-0007-CO and, in order to avoid contradictory resolutions, it is ordered that this process be consolidated with the indicated action.
POR TANTO:
Consolidate this matter with the amparo action processed before this Chamber in expediente No. 24-007095-0007-CO.
Fernando Castillo V.
Anamari Garro V.
Ingrid Hess H.
Ana María Picado B.
Ileana Sánchez N.
Ana Cristina Fernandez A.
Alexandra Alvarado P.
Telephones: 2549-1500 / 800-SALA-4TA (800-7252-482). Fax: 2295-3712 / 2549-1633. Email address: www.poder-judicial.go.cr/salaconstitucional. Address: (Sabana Sur, Calle Morenos, 100 mts. South of the Perpetuo Socorro church). Reception of matters of vulnerable groups: Edificio Corte Suprema de Justicia, San José, Distrito Catedral, Barrio González Lahmann, calles 19 y 21, avenidas 8 y 6 It is a faithful copy of the original - Taken from Nexus.PJ on: 08-05-2026 14:48:04.