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Res. 04267-2026 Sala Constitucional · Sala Constitucional · 06/02/2026
OutcomeResultado
The Constitutional Chamber dismissed the amparo action, holding that the claims regarding non-tourist use of lands in the Papagayo Project and forest destruction constitute a matter of ordinary legality that must be pursued through administrative or administrative contentious channels, over which this court lacks jurisdiction.La Sala Constitucional declara sin lugar el recurso de amparo, al considerar que los alegatos sobre uso no turístico de terrenos en el Proyecto Papagayo y destrucción de bosque constituyen un asunto de legalidad ordinaria que debe ventilarse en la vía administrativa o contencioso-administrativa, para lo cual esta sede no es competente.
SummaryResumen
The Constitutional Chamber dismissed the amparo action filed by Gad Amit Kaufman against the Costa Rican Tourism Institute (ICT). The plaintiff alleged that the ICT authorized non-tourist uses (subdivision and sale of luxury residential villas) on lands within the Gulf of Papagayo Tourism Project, managed by the ICT, and allowed the destruction of forest in Lot 1 (concession 2168-Z-000), considered State Natural Heritage. The Chamber held that the claimant's challenges concern matters of ordinary legality, not a direct violation of fundamental rights, and thus exceed its jurisdiction. The ruling is based on the fact that the required analysis would involve reviewing compliance with the Master Plan, the concession contract, the special regulations applicable to the tourism hub, and the environmental viability assessment—tasks belonging to the administrative contentious jurisdiction or to the administration itself, especially given that an annulment proceeding challenging the environmental viability was already pending before SETENA.La Sala Constitucional declara sin lugar el recurso de amparo interpuesto por Gad Amit Kaufman contra el Instituto Costarricense de Turismo (ICT), en el que se alegaba que el ICT autorizaba usos no turísticos (lotificación y venta de villas residenciales de lujo) en terrenos del Proyecto Turístico Golfo de Papagayo, administrado por el ICT, y permitía la destrucción del bosque en el Lote 1 (concesión 2168-Z-000), considerado Patrimonio Natural del Estado. La Sala considera que los cuestionamientos del recurrente constituyen un tema de mera legalidad ordinaria, no una violación directa de derechos fundamentales, y por tanto exceden la competencia del tribunal constitucional. El fallo se fundamenta en que el análisis requerido implicaría revisar el cumplimiento del Plan Maestro, el contrato de concesión, la normativa especial aplicable al polo turístico y la viabilidad ambiental, labores propias de la jurisdicción contencioso-administrativa o de la propia administración, donde además ya existía un incidente de nulidad en trámite ante la SETENA.
Key excerptExtracto clave
As can be observed and is easily detectable from a simple reading, the claimant requires the Constitutional Chamber to analyze the project's compliance with the Forestry Law (an environmental viability matter detailed above), the powers of the ICT, the project's development, as well as compliance with the contractual conditions of the concession and compliance with the Master Plan—so much so that he emphasizes the need to have that plan. These elements of analysis require a more detailed verification of their legality, technical evidence that allows reaching a reasoned conclusion, and an exhaustive analysis by the Constitutional Chamber. All of this is contrary to its jurisdiction, which distorts the summary amparo process and seeks to turn the Chamber into a mere processor of environmental complaints or a reviewer of legality, since it is evident that the amparo before us is an environmental complaint—which is also already under consideration by SETENA. For greater detail, and in order to demonstrate the inadmissibility of the amparo and the need for its dismissal, we proceed to identify and show that what the claimant seeks is precisely an analysis of legality, not constitutionality, proper to another jurisdiction. Consequently, the appeal is inadmissible, and its outright dismissal is appropriate, in accordance with the provisions of Article 9 of the Constitutional Jurisdiction Law, as indicated in the operative part of this ruling.Como puede observarse y es fácilmente detectable de la simple lectura, el recurrente lo que requiere es que la Sala Constitucional proceda a analizar el cumplimiento de proyecto con base en la Ley Forestal (tema de viabilidad ambiental detallado anteriormente), las competencias del ICT, el desarrollo del proyecto, así como el cumplimiento de las condiciones contractuales de la concesión y el cumplimiento del Plan Maestro -tan es así que enfatiza la necesidad de contar con ese plan-; elementos de análisis que requieren de una verificación de su legalidad más detallada, de prueba técnica que permita llegar a una conclusión fundada, y de un análisis exhaustivo de la Sala Constitucional; todo ello contrario a su competencia que desnaturaliza el proceso sumario del amparo y busca convertir a la Sala en un tramitador de denuncias ambientales o revisor de la legalidad, pues es evidente que el amparo que nos ocupa es una denuncia ambiental -que además está siendo conocida por la SETENA-. A mayor abundamiento y con el fin de poder dejar en evidencia la improcedencia del amparo y la necesidad de su rechazo, procedemos a identificar y evidenciar que lo requerido por el recurrente es precisamente un análisis de legalidad y no de constitucionalidad, propio de otra jurisdicción. En consecuencia, el recurso es inadmisible y procede su rechazo de plano, de conformidad con lo dispuesto en el artículo 9 de la Ley de la Jurisdicción Constitucional, tal y como se indica en la parte dispositiva de esta resolución.
Pull quotesCitas destacadas
"no le corresponde a este Tribunal determinar, tal y como lo pretende el recurrente, si en el caso particular debió realizarse algún tipo de consulta sobre el proyecto en cuestión, o bien, establecer cuál es el mecanismo que deben utilizar las autoridades recurridas, para garantizar de forma óptima la participación ciudadana, toda vez que, se trata de supuestos de legalidad ordinaria que deben ser planteados ante la autoridad recurrida o bien, ante la sede judicial competente y no ante esta sede constitucional."
"it is not for this Court to determine, as the claimant intends, whether some type of consultation should have been carried out regarding the project in question, or to establish which mechanism the respondent authorities should use to optimally guarantee citizen participation, since these are matters of ordinary legality that must be brought before the respondent authority or the competent judicial venue, and not before this constitutional court."
Considerando V
"no le corresponde a este Tribunal determinar, tal y como lo pretende el recurrente, si en el caso particular debió realizarse algún tipo de consulta sobre el proyecto en cuestión, o bien, establecer cuál es el mecanismo que deben utilizar las autoridades recurridas, para garantizar de forma óptima la participación ciudadana, toda vez que, se trata de supuestos de legalidad ordinaria que deben ser planteados ante la autoridad recurrida o bien, ante la sede judicial competente y no ante esta sede constitucional."
Considerando V
"el proceso de amparo es de carácter eminentemente sumario —es decir, breve y sencillo— y su tramitación no es compatible con la práctica de diligencias probatorias lentas y complejas, o con la necesidad de entrar previamente a examinar —con carácter declarativo— si los derechos de rango infra constitucional que las partes citan como parte del elenco fáctico del recurso de amparo o del informe de ley, según sea el caso, existen en realidad."
"the amparo process is eminently summary in nature —that is, brief and simple— and its procedure is not compatible with the practice of slow and complex evidentiary proceedings, or with the need to first examine —with declaratory effect— whether the infra-constitutional rights that the parties cite as part of the factual background of the amparo appeal or the legal report, as the case may be, actually exist."
Considerando II
"el proceso de amparo es de carácter eminentemente sumario —es decir, breve y sencillo— y su tramitación no es compatible con la práctica de diligencias probatorias lentas y complejas, o con la necesidad de entrar previamente a examinar —con carácter declarativo— si los derechos de rango infra constitucional que las partes citan como parte del elenco fáctico del recurso de amparo o del informe de ley, según sea el caso, existen en realidad."
Considerando II
"Esta Sala no es un contralor de legalidad de las actuaciones del órgano accionado, al menos que acciones u omisiones de este órgano, afecten el núcleo esencial de los derechos fundamentales."
"This Chamber is not a legality controller of the actions of the respondent body, unless actions or omissions of that body affect the essential core of fundamental rights."
Considerando IX
"Esta Sala no es un contralor de legalidad de las actuaciones del órgano accionado, al menos que acciones u omisiones de este órgano, afecten el núcleo esencial de los derechos fundamentales."
Considerando IX
Full documentDocumento completo
CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at nine hours and twenty minutes on February sixth, two thousand twenty-six.
Amparo appeal processed under case file No. 25-020400-0007-CO, filed by GAD AMIT KAUFMAN, residency ID CED01, against the INSTITUTO COSTARRICENSE DE TURISMO.
Whereas:
Article 2.-For the optimal development of this Project, all Government agencies, ministries, and public institutions are urged to provide all assistance and collaboration to the same, within the framework of their material possibilities and the scope of their respective competences." Thus, the Polo Turístico Golfo de Papagayo constitutes a paradigmatic case in Costa Rican administrative law, as it is consolidated as a national strategic project developed under an exceptional legal regime. This special figure, granted by the legal system, is justified not only for reasons of economic convenience, but also for reasons of planning, sustainability, and state control. Its creation and execution are based on a series of legislative and administrative acts that, systematically, configure a differentiated normative framework compared to the common regime of the Zona Marítimo Terrestre (ZMT) regulated by Law No. 6043.
From the point of view of substantive legal analysis, the regime of the Golfo de Papagayo Project presents a reasoned and proportional exception within the Costa Rican constitutional framework, since it does not annul the common rules, but rather modulates them for a specific case, ensuring greater state intervention, technical control, and environmental protection. It is an example of how a special regime can coexist with common law, provided it has legal backing, legitimate purpose, and control mechanisms that guarantee subjection to the public interest. From the point of view of legal certainty, the project has a robust and systematized normative set, composed of laws, regulations, decrees, and administrative acts, which articulate a coherent legal structure for its development. This legal structure provides certainty to both the State and potential investors regarding the rights, duties, and conditions for participating in the project.
At the same time, it guarantees the protection of the State's natural heritage and the principles of sustainability, planning, and legality. REGARDING STANDING There is no doubt that the analysis sought by the appellant does NOT meet the prerequisites required to be considered as an object of amparo proper to a summary proceeding, and all the analysis that its appeal requests be carried out undoubtedly denatures the figure of amparo. Those cases that require an analysis of compliance with respect to what is stipulated in the regulations, as well as the demonstration and evacuation of evidence to define the legality of the actions, are matters of ordinary legality that cannot be heard through an amparo appeal, since this would be denaturing its summary figure. I will be analyzing this situation in another section. RELEVANT BACKGROUND IN RELATION TO THE LEGAL ACTIONS TAKEN BY THE APPELLANT AGAINST THE SAME PROJECT.
As stated in the archives of the honorable Sala Constitucional, under expediente number 25-012448-0007-CO, the Asociación Confraternidad Guanacasteca questioned the legality of the environmental permits of the Proyecto Desarrollo Bahía Papagayo, considering that no citizen hearing had been held. The same Sala Constitucional, through its resolution No. 2025016284, of May 31, 2025, declared the amparo appeal without merit and, based on its background, warned that the analysis the appellant required to be considered is a matter of mere legality and not of constitutionality, not being within its competence, as follows: “With the foregoing clear, it is determined that what the appellant has set forth is a disagreement with the mechanism used by the project developer for the granting of environmental viability (viabilidad ambiental) and the decision of SETENA to approve the same. (…) Thus, and in accordance with the cited precedent, it is not for this Court to determine, as the appellant intends, whether in the particular case some type of consultation should have been carried out on the project in question, or to establish which is the mechanism that the respondent authorities must use to optimally guarantee citizen participation, since these are assumptions of ordinary legality that must be raised before the respondent authority or, rather, before the competent judicial venue and not before this constitutional venue.
Ergo, it is appropriate to declare the appeal without merit, as is indeed done.” As evidenced by the Constitutional Court, there was in that case a disagreement of the appellant regarding the procedure followed by SETENA, such that it was intended to ventilate in that venue, matters outside its competence, as they required an analysis of legality and not of constitutionality. The same Asociación Confraternidad Guanacasteca filed before SETENA an Incidente de Nulidad Absoluta against administrative act SETENA No. 0591-2022, of April 6, 2022 (Expediente D1-0170-2021-SETENA), and challenges, precisely, the environmental viability (viabilidad ambiental) granted to the Proyecto Desarrollo Bahía Papagayo because in its opinion the Ley Forestal must prevail over the special regulations (Ley de Desarrollo Turístico de Bahía Culebra No. 6370 of July 31, 1979 and the Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico Golfo de Papagayo No. 6758 of June 4, 1982, in conjunction with the rest of the special sectoral legal framework of the Polo Turístico Golfo de Papagayo), which it maintains, did not operate in such manner.
It is important to consider that, to date, such challenge is still in process and has not been resolved by SETENA. Evidence of this is that the appellant itself provides documentation that demonstrates this, since at image 17 of the judicial expediente, it incorporates as evidence Official Letter No. SETENA-SG-0646-2025, of May 20, 2025, addressed to the Área de Conservación Tempisque of SINAC, where it expressly indicates: “(…) I inform you that this Secretariat is attending to the Incidente de Nulidad Absoluta, against Resolution No. 591-2022-SETENA of April 6, 2022, under administrative expediente D1-0170-2021, filed by Mr. GAD AMIT KAUFMAN, in his capacity as president of the Asociación Confraternidad Guanacasteca.” It is possible to conclude, based on the information contained in this judicial expediente, that there is a pending incidente de nulidad yet to be resolved where precisely what is being questioned is the legality of the environmental viability (viabilidad ambiental) granted to the project, practically with the same arguments set forth in this amparo appeal, with SETENA being the competent instance to hear it.
Therefore, it is not possible for this Sala Constitucional to simultaneously hear and resolve the same matter in the amparo at hand, since as this same Sala has pointed out, its participation in matters of ordinary legality is non-existent, and furthermore – as it has also been emphatic – this Sala is not a reviewer of administrative conduct, as we will detail further on …”. “… since that Sala had already rejected an amparo filed by the same Association and there exists an incidente de nulidad filed before SETENA where the environmental viability (viabilidad ambiental) of the Project is being questioned – on the basis of the supposed prevalence of the Ley Forestal over the special regulations, which has been given the corresponding process and is pending resolution –, the Association files the amparo at hand, in order to practically request the Sala to carry out an analysis of legality of the permits granted to the Project; a requirement that, according to what has been set forth, does not meet the necessary prerequisites to consider that this is a purely constitutional matter.
For greater detail and in order to demonstrate the inadmissibility of the amparo and the need for its rejection, we proceed to identify and show that what the appellant requires is precisely an analysis of legality and not of constitutionality, proper to another jurisdiction: 1- Regarding the heading of the appeal: amparo against the use of public lands. From the heading of the amparo appeal, it is clearly denoted that we are dealing with a matter of legality, since note that it indicates that the amparo is filed against the use of lands for non-tourist uses – a definition that requires an analysis of legality to reach such determination –, as follows: “FILING OF NEW AMPARO APPEAL Against the use of public lands of the Proyecto Turístico Golfo de Papagayo administered by the ICT for NON-TOURIST USES” (page 1). Indeed, the definition of a supposedly different use of the Project lands requires an analysis of the Law that supports the project, as well as an analysis of the Plan Maestro and the intended use, not being within the purview of that Sala, since one is not in the presence of a violation of a fundamental right – a basic prerequisite for the filing of an amparo appeal. 2- Regarding the defense against the diversion of natural objectives Along the same lines as the above, they reiterate: “We come to file an AMPARO APPEAL against the Instituto Costarricense de Turismo - ICT, represented by the Minister of Tourism and the Board of Directors of that institution.
(page 1). This AMPARO comes to defend the Proyecto Turístico de Papagayo from diversions of its natural objectives of sustainable and ecological tourism legally attached to its constitutive law.” (page 1). Indeed, what is sought is to “defend” a project from the diversion of its objectives established in the law that constituted it. Such analysis evidently requires analyzing what the Project objectives are, what the progress has been, verifying that the alleged facts have materialized and whether they transgress the objectives; a task that, as the same Sala has pointed out, exceeds the competences of a summary amparo proceeding like the one at hand. Within its facts, it again points out and emphasizes what the Project objectives are, and its purposes; reinforcing once more our position that we are dealing with a matter of mere ordinary legality, with the Sala not being able, by way of amparo, to determine if the actions of the ICT and the Developer are in accordance with the Law, since for this it requires, we reiterate, a detailed analysis of each and every one of the factual assumptions established by the norm and their corresponding verification against the facts that have supposedly occurred, facts that, it should be clarified, must be demonstrated through the existence of conclusive evidence, a task that also implies the evacuation of evidence.
For greater detail, we transcribe those facts: “1.- The Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico del Golfo de Papagayo, No. 6758 of June 4, 1982, clearly defines the objective of this unique development in Costa Rica. Article 1.- Through this law, the development and execution of the Papagayo tourism project, to be carried out in Bahía Culebra, province of Guanacaste, is regulated. The purpose is TOURISM. Therefore, its execution is exclusively entrusted to the Ministry of Tourism – ICT” (page 2) (…) 5.- The above indicated is contrary to Law 6754 and converts the lands owned by the STATE into an illegal use, a land business, parcels, lots, a real estate development, housing, as if these were private lands. No norm of lower category can reform a law. In this case Law 6754. By Directives or Decrees, the objectives defined in the Law of the Proyecto Turístico de Papagayo cannot be changed.
That objective is tourism” (page 3) REGARDING THE NORMATIVE SPECIALTY LINKED TO THE PROJECT IN BAHÍA CULEBRA. SPECIAL REGIME WITH SPECIAL REGULATIONS. IT IS DETERMINED, FURTHERMORE, THAT IT IS A MATTER OF MERE LEGALITY In accordance with what was described previously, the Polo Turístico Golfo Papagayo (PTGP) was born as part of the political will of the Government of Costa Rica since the 1970s and as a result of a prior study process at the Central American regional level. The special legal framework of specific application in the area of the Polo Turístico Golfo de Papagayo, which prevails in case of conflict over the general legislation in force, as is, for example, in matters of the zona marítimo terrestre, with the latter being applicable to said Project only to the extent that it does not contradict the special legal framework. Thus we have, for example, that the PTGP regulations do not proceed to regulate in detail and precision everything related to the legal management of the public zone, however, by way of integration of norms, the ICT applies the provisions established in Law 6043 and its Regulation for this specific case, also because Article 18 of Law 6758 itself provides that “the concept of public zone, referred to in Article 20 of Law No. 6043 of March 2, 1977, may not be varied either.” By virtue of this special legislation, the area legally affected for the development of the Polo Turístico is under the direct and exclusive administration of the ICT, including the Public Zone incorporated within the coordinates of the Project and the area permanently covered by the sea.
With the purpose of reinforcing the specialty and particular legal destination of the referred Project, Law 6370 of September 3, 1979, declared the now-called PTGP of public utility and empowered the ICT to acquire, both directly and through expropriation, complete properties, portions, and rights within the area defined in that Law, an area to which it expressly assigned a specific legal destination in its article 10, stipulating that it would be destined solely for the development of the indicated Project. As of 1982, by Law No. 6758, a more complete normative regulation on the development and execution of what is now known as the Polo Turístico Golfo de Papagayo was specified, stating that only the works provided for in the Plan Maestro approved by the ICT and all works consistent therewith would be carried out there. For its development, the cited Law granted the Board of Directors of the ICT the power to grant concessions (concesiones) to private individuals on the lands included in the Project area, “in accordance with the terms and conditions that the Institute establishes for this purpose.” (Article 12 Law 6758) Furthermore, it is worth highlighting that said Law, in its Article 18, states: “This Law is of public order and repeals any norm that opposes it, except insofar as it grants rights or authorizes public law entities to collect fees and tariffs, …” The scope of this particular legal framework has been correctly appreciated by the Sala Constitucional itself in vote No. 2007-018483 at 6:00 p.m. on December 19, 2007, in which the special case of this state tourism development is clearly outlined: “VII.- EXCEPTIONAL OR SPECIAL ADMINISTRATIVE LEGAL REGIME OF THE PROYECTO TURÍSTICO GOLFO DE PAPAGAYO.
SPECIFIC REGIME OF USE OR EXPLOITATION OF DEMANIAL ASSETS. The Proyecto Turístico Golfo de Papagayo has been subject to a special administrative legal regime, thus Law No. 6370 of September 3, 1979, declared the Proyecto Turístico de Bahía Culebra or Papagayo of public interest. Article 1 of that law provides that the acquisition of real estate, complete properties, portions, rights, or legitimate patrimonial interests that, by their location, are necessary to carry out and execute the tourism project is of public utility, with the latter comprising, within the coordinates that delimit it, the maritime zone of the Pacific coast. For voluntary acquisitions or by expropriation, the Instituto Costarricense de Turismo was authorized (articles 2 to 5). For its part, the Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico del Golfo de Papagayo, No. 6758 of June 4, 1982, subjects it to an intense exceptional public regime, due to the strategic importance of the project for national tourism development, in which the registration of the lands in the name of the Instituto Costarricense de Turismo and a series of promotional measures for its development are foreseen.
Specifically, Article 12 and following establishes the regime of exploitation of the project by private individuals. Thus, ordinal 12 indicates that the ICT Board of Directors “(…) may grant concessions (concesiones) on the use of the project lands in the area destined for it (…)”, for their part, articles 13, 14, and 15 foresee, respectively, the figures of cancellation, extinction, and rescate of the concession (concesión). On the other hand, through infralegal regulations, the figure of the concession is emphasized, thus, by way of example, Decreto Ejecutivo No. 22489-MP-J-TUR of September 2, 1992 created the Registro de Concesiones of the Proyecto Turístico de Golfo de Papagayo in Bahía de Culebra, as a Section of the Registro General de Concesiones of the Registro Público de la Propiedad of the Registro Nacional. Based on the foregoing, it is sufficiently clear that the regime of use by private individuals, foreseen by the legal regulations governing the Golfo de Papagayo tourism project, is clearly exclusionary, thereby excluding common and general use by any other person, all through the figure of the concession (concesión) that grants the concessionaire (concesionario) administrative real rights.” (…) IX.
(…) Take into consideration that Law No. 6758 of June 4, 1982, exclusively granted the Instituto Costarricense de Turismo – through an executing office, its Consejo Director, the Director Ejecutivo, and the Board of Directors of the entity – the competence to develop and execute the Golfo de Papagayo tourism project (Article 1)… it is necessary to indicate that Law No. 6758 of June 4, 1982, grants the administration and management of the Proyecto Turístico Papagayo to a public entity of national competence such as the ICT, so it is an exceptional or special regime compared to that contemplated in the Ley de la Zona Marítimo-Terrestre...” Both the cited legislation and the constitutional vote make it clear that Law 6758 is a special legal regime created for the development of a TOURISM PROJECT and, therefore, in the area of territorial competence, the administration is exclusively conferred to the ICT.
Additionally, the legislature provided that this special administration be granted to the ICT even with respect to the so-called maritime zone, an affirmation that is supported by Article 1 of Law 6370, as well as by the Ley de Concesión y Operación de Marinas Turísticas, which expressly in Article 25 recognizes the competence of the ICT within the PTGP area to grant concessions (concesiones), for the purpose of building, administering, and operating the terrestrial and maritime facilities of tourist marinas and docks that are erected in the public zone and in the areas permanently covered by the sea. In view of the foregoing, there is no doubt that the competence for the administration of the Tourism Project, in its entirety, rests with the ICT, as a public entity in charge of overseeing tourism activity at the national level, it being reasonable that establishing the terms and conditions under which tourism projects will be developed (Article 12 Law 6758) is a competence of the ICT and not of any other state entity or institution.
It is not omitted to indicate that the respect for specific competences of other institutions must always prevail, for example, municipalities for the approval of construction plans, SETENA with the granting of environmental viability (viabilidad ambiental), etc., and the special and exceptional regime to carry out the development of the Golfo de Papagayo tourism project exclusively designates the administration of this publicly owned area to the Instituto Costarricense de Turismo. Therefore, considering that the administration powers that the ICT holds over the PTGP will be diminished or eliminated due to the inherent characteristics of the lands that make up said polo would be contrary to the spirit of the legislator, who, from the beginning, provided that the development of the project would be for a general tourism use, being a project of public interest for the country and the Guanacaste zone.
The foregoing has already occurred within the PTGP, but it was the legislature itself who extracted a part of the PTGP area to grant its administration to SINAC itself, which is the case of the Refugio de Vida Silvestre Iguanita, created by Law 8731 of July 3, 2009, called “Creation of the Refugio Nacional de Vida Silvestre Iguanita to strengthen the protection of the terrestrial and marine ecosystems of the zone and the maintenance of the tradition of popular use of Playa Iguanita,” where it was provided: “ARTICLE 2.- Administration of the refuge The administration, protection, and management of the Refugio Nacional de Vida Silvestre Iguanita shall correspond to the Sistema Nacional de Áreas de Conservación, of the Ministerio del Ambiente y Energía (Minae), through the Área de Conservación Tempisque, in accordance with Article 22 of the Ley de biodiversidad, No. 7788, of April 30, 1998, and its amendments.
The Instituto Costarricense de Turismo (ICT) is authorized to transfer to Minae, as of the publication of this Law, the section of land of the zona marítimo-terrestre, comprised within the Refuge, for its administration, protection, management, and development, through the Sistema Nacional de Áreas de Conservación. Public Administration institutions, public companies, and municipalities are authorized to donate financial and material resources to the Sistema Nacional de Áreas de Conservación, for the achievement of the objectives of this Law.” Prior to the enactment of Law 8731, some considerations were made by the Procuraduría General de la República that are important to note as background and to have a better understanding of the legal power of administration that the ICT holds over the PTGP. In opinion C-210-2002, it is extracted: “In order of public ownership and administration powers, the guardianship of the areas of the Proyecto de Papagayo is the responsibility of the ICT, an entity that must employ the means or mechanisms provided by the legal system to protect the assets, conserve them, and adopt the necessary actions to avoid damage to their natural conditions (opinion C-171-93, C-028-94, C-106-95, and C-151-97).
The Oficina Ejecutora of the Project, created by the ICT itself, is the one that has the powers to administer and control the development of the Project (Law 6758, art. 9). The powers of administration exercised by the ICT within the area of the Proyecto Turístico de Papagayo, we have said, are subject to the singular competences that other administrative bodies or entities may have in special matters or the guardianship and management of natural resources or cultural heritage assets of national patrimony. This would be the case of duly created protected state wilderness areas, objects of the National Archaeological Heritage, minerals – metallic and non-metallic –, forest matters, public roads, and constructions, a competence retained by the Municipalities of Liberia and Carrillo, but for the sake of planned development of the zone and consistent with the assigned tourism purposes, it is subordinated to the directives of the concession (concesión), authorizations, and prior guidelines issued by the ICT, in accordance with the Law, and to the observance of additional requirements.
In the area destined for the development of the Tourism Project, the planned works must conform to the Plan Maestro approved by the ICT (Law 6758, art. 2. Opinions C-006-88, C-173-93, C-028-94, C-181-94, C-106-95, C-151-97, C-080-98, and O. Nombre02.-018-2002). On cultural heritage, cf.: Nombre03: New data on the archaeology of Bahía Culebra. Guanacaste. Gutiérrez G. Maritza. The ichthyofauna of the archaeological site Nacascolo, Bahía Culebra. Both in the journal Vínculos No. 22, pg. 37 ff and 157 ff. In La República of June 12, 1995, pg. 6A: 60 archaeological sites. Nacascolo, indigenous zone). In attention to the impact they produce, Law 6043, arts. 57, subsection e), in connection with 3, in fine, 68, final paragraph, and 93 of its Regulation, prohibits extractive or mining activities in tourist zones. The regulations of the Proyecto Turístico del Golfo de Papagayo are special, without this constituting an exceptional regime against the rest of the legal system in force, which remains applicable, insofar as it is compatible.
As long as it does not conflict with the former, the legislation on the zona marítimo terrestre persists (C-171-93, C-106-95, and C-151-97). (…) IV.4) INADMISSIBILITY OF CHANGING THE AFFECTATION OF THE LANDS IN THE AREA DESTINED FOR THE PROYECTO TURÍSTICO PAPAGAYO BY DECREE. However, regardless of the defects that the Decree might have, it lacks the coverage to modify the legal affectation of the sector. In opinion C-028-94 we stated that \"the destination assigned by law to a public domain space can only be changed by legislative act, and that the use of the area destined for the Proyecto de Papagayo is tourism\". The previously indicated is reiterated, in the sense that it was the legislature itself that formulated and gave life to the PTGP Comprehensive Development Project; a project that, moreover, was declared of national convenience in accordance with Article 3 subsection m), 19 subsection b), 33, and 34 of the Ley Forestal, No. 7575 of February 13, 1996, and Article 2 of Decreto Ejecutivo No. 25721-MINAE of October 17, 1996.
The foregoing, as this is an internationally recognized model of sustainable tourism development, where the guidelines established in the Plan Maestro seek properly planned development, with environmental variables, low densities and coverages, adequate treatment of wastewater, among others. (Considerandos 5 and 6 of the cited Decree 33132.) The establishment of the Proyecto Turístico Golfo de Papagayo legally began through Law No. 6370 of September 3, 1979, which fulfills two fundamental objectives: geographically delimiting the area subject to tourism development and declaring the real estate necessary for its execution of public utility. In its numeral 1, this norm defines a specific portion of the Costa Rican Pacific coast —from Punta Cabuya in the north to one kilometer south of Punta Ballena— as the priority physical space to implement this state development plan. It constitutes part of the State's natural heritage, of an inalienable, imprescriptible, and public-use nature.
The declaration of public utility has important legal-administrative significance. This figure, authorized by Article 45 of the Constitución Política and developed in the Ley General de Expropiaciones, allows the State to forcibly acquire private lands when there are superior public purposes. In this case, the public utility is justified not only in terms of tourism development as a national economic engine, but also by virtue of the need to plan land use in a territory that is highly sensitive due to its environmental and cultural richness. This affectation implies that the acquired assets must be used exclusively for the purposes established in the law, which reinforces their character as demanial assets, in accordance with Article 261 of the Código Civil. The foregoing is ratified by Article 10 of Law No. 6370, which provides that the acquired lands may only be used for the Tourism Development Project in Bahía Culebra, and that a special law must be issued for its execution in accordance with Article 3 of Law No. 5847.
This provision anticipates the need for special regulations that legally structure the development of the project and clearly define the actors, competences, stages, conditions, and limits of the construction process. In this way, arbitrary or private use of the assets is avoided, and strict submission to the public interest that justifies them is guaranteed. That specific legislation materializes through Law No. 6758 of June 4, 1982, which establishes an exceptional legal regime applicable to the development of the Proyecto Turístico Golfo de Papagayo. In its Article 1, the law affirms that its object is to regulate the development and execution of the Papagayo tourism project, to be carried out in Bahía Culebra, thus consolidating a specific public policy sustained by the legislator. Article 2 of said law imperatively states that “in the area destined for the development of this project, only the works provided for in the Plan Maestro must be carried out,” which must be approved by the Instituto Costarricense de Turismo (ICT).
This precept has legal implications of great relevance, since it converts the Plan Maestro into a first-order normative control instrument, with binding force for all intervening actors, both public and private. The execution of works outside or incompatible with what is stipulated in the plan could be considered illegal or unconstitutional, by infringing the principle of legality (Article 11 of the Constitution) and distorting the use of the affected public good. The concept of Plan Maestro, as used in this law, falls within the doctrine of urban or territorial planning, as a manifestation of the State's ordering function over the land. This function responds to constitutional principles such as sustainability (art. 50 CP), the social and ecological function of property (art. 45 CP), and legal certainty (art. 11 CP).
Planning is not discretionary; rather, it constitutes a positive obligation of the State to rationalize land use and guide development in accordance with the general welfare, ecological balances, and the legitimate expectations of individuals. In this regard, specialized doctrine has pointed out, as Lorenzo Martínez Escudero states in his work Playas y Costas: Su Régimen Jurídico Administrativo, that all urban planning must attend to collective well-being through a balanced distribution of services, uses, and public access, without excluding any type of property, public or private. In the case of Proyecto Papagayo, this translates into a requirement for orderly, balanced, and fair development of the coastal public space, through rigid planning instruments, legally supported and subject to permanent technical evaluation. In fact, Article 2 of Ley N.° 6758 also provides for the issuance of technical standards by the ICT as part of the plan's regulation and execution process, which implies the exercise of a technical regulatory authority delegated to the governing body of national tourism. This regulatory design makes the ICT the primary guarantor of compliance with the Plan Maestro and the technical, environmental, and urban planning standards that must govern the entire process of construction, operation, and maintenance of tourism developments in the affected area.
From a factual perspective, it must be noted that this legislation did not arise in a vacuum. On the contrary, it is the result of regional technical studies promoted by the Banco Centroamericano de Integración Económica (BCIE) since 1965, which identified the Golfo de Papagayo as a priority zone for the development of international tourism in Central America. These technical inputs reinforced the justification for the declaration of public utility and the need for specific planning, and were subsequently incorporated into the technical inputs that underpinned the Plan Maestro approved by the ICT in 1995. In this way, the legislation on Papagayo creates a closed, hierarchical, and exceptional framework for territorial management, in which the application of the general norms of Costa Rican planning (such as Ley N.° 6043 on the ZMT) is partially excluded, to the extent they are incompatible with the special law. This has been reiterated by the Procuraduría General de la República in multiple opinions (C171-93, C-106-95, C-151-97), noting that the special regulations of Proyecto Papagayo constitute a valid exception regime within the legal system, without prejudice to the supplementary application of the common regime when there is no normative contradiction.
In conclusion, the legal sequence composed of laws N.° 6370 and 6758 forms a special public law regulatory framework, which responds to a strategic state development model, based on the rational use of coastal land, mandatory technical planning, the designation of public domain, and the stewardship of the ICT as the guarantor body of tourism and environmental interests. This regulation not only delimits the physical space of the project and regulates its execution, but also establishes public policy principles that condition any intervention, thus guaranteeing respect for legality, public patrimony, and the constitutional values of the Costa Rican social state of law. The foregoing also implies that the matter is one of mere legality. The honorable Sala Constitucional may observe that what is being questioned is linked to aspects of law, decrees, and regulations. The Costa Rican legal system clearly distinguishes between legality review, which refers to compliance with infra-constitutional norms (laws, regulations, decrees), and constitutionality review, which evaluates the conformity of norms or acts with the Constitución Política, especially with fundamental rights.
In this sense, it is necessary to affirm that the actions of the Instituto Costarricense de Turismo (ICT) within the framework of the Proyecto Turístico Golfo de Papagayo are fully inserted in the sphere of administrative legality, as they consist of the application of a special law (Ley N.° 6370 of 1979), its reforms, complementary regulations, and the Plan Maestro approved for the development of said regime. The ICT executes powers expressly granted by the legislator through a special legal regime, which regulates aspects such as: the delimitation of the development area (Bahía Culebra and surrounding zones); the declaration of public utility, the general planning and concession of lands in the public domain, and coordination with other institutions for infrastructure execution. These functions are legally delimited, so their oversight corresponds, principally, to an analysis of legality, typical of administrative law, rather than to an abstract constitutionality judgment.
Therefore, what is questioned in this appeal should be reviewed in the administrative litigation jurisdiction, if the appellant sees fit. In the event of challenges regarding a tourism concession, a zoning plan, or a land acquisition procedure, the appropriate review parameter would be that of compliance with the law and regulations, which can be analyzed by the administrative litigation jurisdiction, and not by the Sala Constitucional, unless a direct violation of a fundamental right is demonstrated; an aspect not observed in this appeal. Thus, as long as the ICT's decisions are adopted within the normative framework that regulates the Papagayo regime and do not autonomously generate a constitutional injury, their analysis must be limited to legality review. There may be some statements by the appellant regarding violation of Article 50 of the Constitution, but they do not materialize into real situations.
Furthermore, constitutionality operates as an external limit, not as a rule for ordinary review. It is true that environmental protection (Article 50 of the Constitution) can be subject to constitutionality review; however, this does not automatically make administrative acts adopted under a special tourism regime unconstitutional. Constitutional jurisprudence has been clear that a declaration of unconstitutionality or an amparo will only proceed when manifest, direct, and current environmental harm is verified, which does not occur simply by executing a tourism development in accordance with the law. In the case of the ICT, its actions are neither arbitrary nor discretionary, but legally regulated, subject to ordinary control mechanisms, internal audit, and environmental impact procedures, which guarantee compliance with the infra-constitutional legal order. Therefore, the ICT acts in accordance with the law and guarantees orderly development, and the design and execution of the Papagayo regime conform to norms previously established by the legislator and developed through regulations.
The ICT has acted in accordance with the principle of legality (Article 11 of the Constitution), respecting the legal framework governing the granting of concessions, environmental conservation, and inter-institutional coordination. Consequently, any assessment of its decisions must be carried out from the perspective of their conformity to legality, without being confused with questions of constitutional substance, except in extreme cases that compromise fundamental rights, which does not arise in the ordinary operation of the exception regime.
The challenged actions of the ICT within the Proyecto Turístico Golfo de Papagayo are framed strictly within legality review, as they are executed in accordance with Ley N.° 6370 and other applicable regulations. In principle, no constitutionality conflicts arise, given that the Institute fulfills its duty to act under the law, promote orderly development, and respect environmental standards. Any analysis of the Papagayo regime must properly distinguish between an administrative legal discussion and a true constitutional controversy, which in this case is not verified.
ON THE ASPECTS INDICATED IN THE FILED AMPARO APPEAL The appellant provides a description and mixture of factual elements, legal norms, and aspects of another nature. They called all of this facts, which are analyzed:
FACTS 1- The Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico del Golfo de Papagayo, No. 6758 of June 4, 1982, clearly defines the objective of this unique development in Costa Rica. Article 1.- Through this law, the development and execution of the Papagayo tourism project, to be carried out in Bahía Culebra, province of Guanacaste, is regulated. The purpose is TOURISM. That is why its execution is entrusted, exclusively, to the Ministry of Tourism - ICT.
2- To clarify concepts and avoid confusion, we provide the definition of tourism, according to the UNWTO – World Tourism Organization. Concept of Tourism according to the World Tourism Organization: The UNWTO defines tourism as the activities that people carry out during their trips and stays in places other than their usual environment for a consecutive period of less than one year, for leisure, business, or other purposes. This definition highlights the diversity of tourism activities and their limited duration in places different from the place of residence. We highlight the basic components: TRIPS – LIMITED TIME – LEISURE – PLACE DIFFERENT FROM ONE'S RESIDENCE.
3- The selection of Bahía Culebra for the development of Proyecto Turístico Papagayo is due to its great natural wealth, forests, mangroves, wildlife, beaches, sea, a bay with a large population of corals and marine life, etc., etc. Affecting this wealth, the biological diversity, its forests, we believe is destroying the goose that lays the golden eggs.
4- Among the functions or services developed by the ICT, we find on its official website a long list: Tourism contracts; International fairs; Air ticket exemptions; Authorized lifeguards; Tour guides; Country brand; tourist information offices; tourist transport; brochures for tourists; beach atlas; lodging registry; handicrafts with identity; tourism declarations, among others. We do not find real estate development. But it turns out that now, there are projects concessioned by the ICT within the Proyecto Turístico de Papagayo that are intended to be used for subdivisions (lotificaciones) and residential plots for luxury villas. And the ICT authorizes RESIDENTIAL use, which IS NOT TOURISM, to a concessionaire of that project. We believe that the Ministry of Tourism contravenes its obligations and exceeds its legal limitations by engaging in promoting real estate activities of subdivisions and construction of private residences, on public lands administered by the ICT.
5- The above is contrary to Law 6754 and converts the lands owned by the STATE into an illegal use, a land business, plots, lots, a real estate development, housing, as if these were private lands. No lower-ranking norm can reform a law. In this case, Law 6754. By Directives or Decrees, they cannot change the objectives defined in the Law of the Proyecto Turístico de Papagayo. That objective is tourism.
6- We can document this fact by referring specifically to the case of LOTE 1 concessioned by the ICT, concession property 2168- Z- 000, cadastral map 5-1186670-2007, where the subdivision of 90 Villas of between 1,000 and 1,500 m2 each is contemplated. This appears in Oficio PGP0451-2024 dated June 14, 2024, signed by several officials of the ICT.
7- This modality of selling lots for villas is not contemplated in the original concession contract with the company, concession 2168- Z- 000. In passing, we note that the original contract should expire on August 3 of this year, 2025, without the company having fulfilled what it promised to do during this 20-year contract period.
8- The land concessioned in this act, LOTE 1 of 43 hectares with 6563.63 m2, is covered in forest, according to official documents. We provide Oficio SETENA-SG-0646-2025 of May 20, 2025, which states that according to the Geographic Information System source, the lote 1 analyzed here had a forest cover of 99% in the year 2000 and 98% in 2023. Regarding the specific case, it should be noted that as stated in the Documento de Evaluación Ambiental D1-0170-2021-SETENA, "...it is noted that in the project area different types of vegetation cover are identified, including secondary forest, mature forest, and deciduous forest, according to the project's cadastral maps and FONAFIFO data. Additionally, these maps identify areas classified as Class VII: Forest Management, in cadastral documents 5-1186670-2007, which corresponds to LOTE 1 concession 2168- Z- 000.
9- The Ley Forestal N° 7575 of 1996 declares all forests located on lands owned by the State or its institutions as Patrimonio Natural del ESTADO and obliges us to protect them. Ley Forestal 7575 "ARTICLE 13.- Constitution and administration. The patrimonio natural del Estado shall be constituted by the forests and forest lands of the national reserves, of the areas declared inalienable, of the properties registered in its name, and of those belonging to municipalities, autonomous institutions, and other Public Administration bodies, except for properties that guarantee credit operations with the National Banking System and become part of its patrimony." The law does not except the ICT or Proyecto Papagayo from its compliance. The areas can be destined for ecotourism uses, where residents and international visitors can enjoy walks, wildlife sighting, camping, and other healthy, positive, and sustainable activities, in our forests.
10- That forest, Patrimonio Natural del ESTADO, represents for us an asset that all people who live in the area or who visit as tourists can enjoy. As well as the great variety of wildlife, birds, monkeys, raccoons, coatis, squirrels, iguanas, and dozens of additional species present in the area. According to Ley Forestal N° 7575, forests located on lands owned by the STATE and its institutions are Patrimonio Natural del ESTADO. Therefore, those forests must be preserved, according to that current law.
11- We present this AMPARO appeal against the destruction of the Playa Panamá forest, on lands that in this case are owned by the STATE, for NON-TOURIST USES. We oppose the simple traffic of goods and real estate businesses by the private concessionaire company. The concessionaire company is affecting, degrading the forest WITHOUT HAVING permits from SINAC – MINAE, with the knowledge and tolerance of the ICT.
12- The subdivision of 90 Villas of between 1,000 and 1,500 m2 each appears documented and detailed in Oficio PGP-0451-2004. The subdivision is not in the original concession contract signed by the ICT and is contrary to what was offered in the Public Tender process, awarded, and thus concessioned by the ICT. In advertising campaigns domestically and abroad, in Spanish and English, the company offers properties in its Bahía Papagayo project, without indicating that these are public lands, owned by the STATE, inalienable. We reiterate that the company has breached its contractual obligations in the first 20 years of the concession's term. The concession term expires according to the original contract on August 3, 2025.
13- It is noteworthy that the information used to support this appeal is based on documentation obtained from the ICT after an amparo appeal for omission of response, which the Sala Constitucional declared GRANTED, Exp: 25-004460-0007-CO Res. Nº 2025007129, at nine twenty hours on March seven, two thousand twenty-five, where it was ordered "within a term of TEN DAYS, counted from the notification of this judgment, that the appellant be provided with the entirety of the requested information." 14- The subdivision for the construction of luxury residential villas, on the concessioned property owned by the STATE, does not correspond to the Plan Maestro, which is mandatory, under Article 2 of Law 6754. Article 2.- In the area designated for the development of this project, only the works provided for in the Plan Maestro, approved by the Instituto Costarricense de Turismo, and all those works consistent with it, in accordance with the provisions of this law and in accordance with the technical standards that this Institute issues for that purpose, may be carried out.
(highlighting not in original) 15- We must highlight that the current Plan Maestro, with its details on land uses, zoning density, and specifications for the development of Proyecto Papagayo, has not been obtainable from the ICT. They only provided us with its Regulation. We request that this document, duly certified, be provided in the response of the respondents here, with special detail of the area in question at Playa Panamá. Having the current Plan Maestro at hand, with all the inputs, technical studies, and definitions, is essential for the resolution of this amparo, to verify whether what is challenged here complies or not with what is indicated in Law 6754. In the event the mentioned document is absent, let it be confirmed that the ICT violates Law 6754 of Proyecto Papagayo itself.
16- The residents settled in Playa Panamá bought private properties near Papagayo, outside the state-owned property area, and built our homes, attracted by the natural and scenic beauties provided by its forests and beaches. We seek tranquility and nature. We feel affected, attacked, hurt, and annoyed by the intention to destroy and eliminate the forests we so love and enjoy. We do not want them to destroy the biological corridor of the monkeys and other animals we know and help protect. We defend that same right on behalf of the national and international visitors who visit us. And on behalf of all the inhabitants of Costa Rica today and in the future, to whom those STATE lands administered by the ICT belong. Therefore, emotionally, but also legally, we do not want our quality of life to be affected, or the environment in which we chose to live to be destroyed. Trusting in Costa Rica's legal certainty, in respect for current laws, we feel justified in presenting this amparo appeal and trust in receiving fair treatment.
RESPONSE TO THE FACTS BY THE ICT 1- The Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico del Golfo de Papagayo, No. 6758 of June 4, 1982, clearly defines the objective of this unique development in Costa Rica. Article 1.- Through this law, the development and execution of the Papagayo tourism project, to be carried out in Bahía Culebra, province of Guanacaste, is regulated. The purpose is TOURISM. That is why its execution is entrusted, exclusively, to the Ministry of Tourism - ICT. Response: It is not a fact; it is a legal norm, and as such it is true.
2- To clarify concepts and avoid confusion, we provide the definition of tourism, according to the UNWTO – World Tourism Organization. Concept of Tourism according to the World Tourism Organization: The UNWTO defines tourism as the activities that people carry out during their trips and stays in places other than their usual environment for a consecutive period of less than one year, for leisure, business, or other purposes. This definition highlights the diversity of tourism activities and their limited duration in places different from the place of residence. We highlight the basic components: TRIPS – LIMITED TIME – LEISURE – PLACE DIFFERENT FROM ONE'S RESIDENCE. Response: They use a definition taken out of context, since the very same page analyzes tourism as a phenomenon with many facets. It is not technically true that the ICT is in charge of Proyecto Turístico Papagayo based on the definition of "tourism purpose"; rather, it is by decision of the legislator, which is clearly expressed in Articles 9, 10, 11, and 12 of Law 6758, Ley Reguladora del Desarrollo y Ejecución del Proyecto Turístico Golfo de Papagayo.
For an adequate approach to the tourism phenomenon from a legal and normative perspective, it is essential to refer to the different doctrinal approaches developed by specialized authors, whose definitions allow for the identification of the plurality of elements that comprise this human activity. Tourism, as a social, economic, and cultural phenomenon, does not admit a single definition; rather, its conceptualization varies according to the context in which it is analyzed, as well as the legal, economic, and political interests to be protected. From a general perspective, it can be affirmed that tourism constitutes a complex and multi-causal activity, involving the temporary and voluntary displacement of people outside their usual place of residence, for non-profit purposes and for various reasons: leisure, business, culture, health, religion, among others. This notion implies, legally, the concurrence of subjects, rights, and legal relationships that demand regulation in matters of services, consumer protection, environmental sustainability, territorial planning, among other areas of Law.
Various doctrinal sources have contributed to the formation of a holistic vision of tourism. For example, the definition of the World Tourism Organization (UNWTO) emphasizes the temporary displacement of people and the multiplicity of purposes that motivate said movement, highlighting its non-permanent character and its close connection with economic sectors such as transportation, hotels, food, and entertainment. This approach allows tourism to be situated within a service provision structure that generates contractual obligations, environmental externalities, and redistributive effects that must be considered by the legislator and the public administrator. The foregoing in no way implies the impossibility of including the existence of tourist residences within the concept. Meanwhile, Nombre04 and Nombre05 conceptualize it as a set of relationships and phenomena resulting from the movement and stay of persons, provided there is no direct for-profit motivation.
This more sociological definition allows for the understanding of tourism as a practice of cultural and human interaction that generates social externalities, and therefore, poses normative challenges regarding inclusion, community participation, and respect for the cultural identity of receiving territories. In Costa Rica, very closely linked to CST. In turn, Muñoz Oñate introduces an economic perspective by describing tourism as an organized industry to satisfy the traveler's needs. This approach reinforces the importance of regulatory design to guarantee quality, safety, and responsibility in the provision of tourism services, aspects that must be included in regulatory frameworks such as tourism laws, technical regulations, and quality standards; aspects that are taken into account when regulating matters pertinent to the Project in Papagayo. In this sense, the Costa Rican legislator chose to create an exceptional legal regime through Ley N.º 6370, which recognizes the national public interest in the tourism development of the Golfo de Papagayo region.
This regime establishes a special development zone, territorially delimited, within which the Instituto Costarricense de Turismo (ICT) is empowered to acquire lands through administrative means, plan, and concession tourism projects under a public law scheme, in coordination with the state tourism development company created for that purpose. It is clearly special. Nombre06, on the other hand, approaches tourism from a market logic, as a system of supply and demand for tourism products and services. This vision has profound legal implications regarding competition regulation, consumer protection, sector taxation, and the promotion of foreign or national investment, which requires a coherent legal framework that balances the public and private interests involved; as is the project in Bahía Culebra. Even lexicographical definitions, such as that of the Real Academia Española (RAE), allow for the identification of essential components of the tourism phenomenon—such as the motivation for displacement, the means that make it possible, and the collective that exercises it—all of which are susceptible to generating legal relationships that must be regulated to prevent abuses, guarantee rights, and promote the sustainable development of the sector.
In summary, tourism, beyond being a mere economic or recreational activity, constitutes a relevant legal phenomenon, in that it originates multiple legal relationships between individuals, as well as between them and the public administration. Hence the importance of having modern, comprehensive, and coherent legal frameworks that address tourism as a strategic activity of public interest, subject to special regulation, especially when it is carried out on territories with patrimonial, environmental, or cultural value, or under particular legal regimes, such as the Proyecto Turístico Golfo de Papagayo. From a legal perspective, in the Costa Rican context, this reality has been recognized through various normative bodies, including special laws such as Ley N.º 6370 of September 3, 1979, which creates the exceptional regime of the Proyecto Turístico Golfo de Papagayo. In summary, the doctrinal analysis of tourism legally supports the existence of exception regimes like that of the Proyecto Golfo de Papagayo.
Said regime does not constitute a mere legislative anomaly, but a strategic response of the Costa Rican legal system to guarantee the rational and sustained use of a tourism resource of national interest, under technical, social, and environmental parameters. See along the same lines the following page: (Dirección02/que-es-el-turismo-definicionesturisticas/#:~:text=OMT%20definici%C3%B3n%20de%20turismo,- La%20OMT%20define&text=Diversidad%20de%20prop%C3%B3sitos:%20La%20 OMT,gama%20de%20experiencias%20y%20necesidades.)
3- The selection of Bahía Culebra for the development of Proyecto Turístico Papagayo is due to its great natural wealth, forests, mangroves, wildlife, beaches, sea, a bay with a large population of corals and marine life, etc., etc. Affecting this wealth, the biological diversity, its forests, we believe is destroying the goose that lays the golden eggs. Response: It is true, but in some ways biased. The selection of the area for the development of the Tourism Project began in 1964 when the Banco Centroamericano de Integración Económica (BCIE) devised a policy aimed at promoting tourism development in the Central American area, identifying zones suitable for equipping in order to promote tourism development. In 1972, as a result of a study conducted by the firm TECNIBERIA, contracted by the Banco Centroamericano de Integración Económica to assess the tourism potential of Central America, Bahía Culebra was highlighted as the zone of greatest tourism potential on the Isthmus for its scenic and cultural wealth, to create a top-tier tourism hub.
Then in 1978, the Economic and Financial Feasibility Study, Plan Maestro, and Preliminary Designs of the Tourism Project in Bahía Culebra were contracted, prepared by BEL Ingeniería, CEISA, Madriz Mezerville & Asociados, Checohi & Co. Among the initial objectives was to achieve an attraction for mass vacation-style international tourism, to adapt the structure to the typology of current tourism to adjust the offer to the aforementioned purpose, and to exploit the region's natural tourism resources, with the aim of giving Central America a tourism image with which it could compete in an international market, avoiding investments with low profitability. Therefore, it is true that Bahía Culebra, due to its scenic and cultural wealth, was chosen to develop a tourism project, but the initial goal was to use it for attracting mass vacation-style international tourism, by means of what is now known as Sustainable Development, which can be reflected in the various texts of the Plan Maestro Regular of Polo Turístico Golfo de Papagayo.
The selection of Bahía Culebra as the nucleus for tourism development under the exception regime established by Ley N.° 6370 responds to a technical and strategic assessment that recognizes the high environmental, scenic, and ecological value of this coastal-marine zone. Mangroves, coral reefs, tropical dry forests, beaches, and notable biodiversity make this region a privileged enclave for high-value-added sustainable tourism, which underpins its declaration of public interest. In this regard, the Instituto Costarricense de Turismo (ICT) has acted in strict adherence to the constitutional principle of environmental sustainability, enshrined in Article 50 of the Constitución Política, and to current environmental regulations. Since the creation of the special regime, the ICT has oriented its actions towards orderly, planned development that is respectful of the natural environment, as provided by Ley N.° 6370 and its regulatory norms, including the Plan Maestro of the Proyecto Turístico Golfo de Papagayo.
Contrary to any perception of a threat to the biodiversity of Bahía Culebra, the ICT has promoted rational tourist use of the territory, guaranteeing the conservation of the natural resources that give value and viability to the project. In coordination with other State authorities and through the use of territorial planning tools, the Institute has delimited protection zones, applied carrying capacity criteria, promoted clean technologies, and required compliance with environmental impact studies (estudios de impacto ambiental) as a condition for granting concessions or executing tourist infrastructure. In this way, the ICT has recognized that the natural wealth of Bahía Culebra represents not only an ecological asset, but also the structural pillar of the tourism development model adopted in the Polo Turístico Golfo de Papagayo. Far from allowing its destruction, the Institute has implemented regulation and control mechanisms that ensure that human interventions are carried out with respect for the environment and for the benefit of the public interest.
The metaphor of "the goose that laid the golden eggs" is not alien to the institutionality: it constitutes, in fact, a technical conviction that has guided the ICT's public policy in this matter. Consequently, the Institute has applied reinforced protection criteria and has promoted environmentally compatible tourism development models with these superior legal values. The appellant's claim is unfounded, because it is not true that development in the Polo Turístico Golfo de Papagayo negatively affects biological wealth and forests, since the Regulation to the Master Plan (Reglamento al Plan Maestro), as well as the legal framework governing the Project, are designed to make tourism development compatible with conservation, seeking a balance that allows harmony with nature, as embodied in the guiding principles, in Article 3 of the Regulation to the General Master Plan which literally cites; Article 3: The guiding principles of tourism development of the Polo Turístico Golfo de Papagayo are framed within the current Legal System, the particular or special purposes that have been assigned to it by special legislation, the national and regional interests, particularly of the Province of Guanacaste, and within the principles of sustainable development in harmony with nature, which in turn entail tourism sustainability.
Additionally, Article 5 of the aforementioned Regulation establishes the guidelines on design and construction within the Project, emphatically indicating that in the project designs, the principle of the concessionaire's (concesionario) responsibility to adhere to the general guidelines or master lines that pursue the public purpose established by the legislator, of an international quality tourism development, in direct relation to the characteristics of the region and the country where it is located, its cultural context and its archaeological heritage, as well as regarding the identified ecosystem of the zone, must prevail. In summary, the Papagayo Master Plan is a legal instrument that regulates development in the area through current regulations, which have been made known to the appellant; ensuring that it conforms to the objectives of sustainable development and territorial planning.
Regarding the aforementioned plan, the Attorney General's Office (Procuraduría General de la República) has stated: "Consequently, this binding nature of the Plan prevents it from being considered a simple technical directive. On the contrary, it is easy to conclude that the Master Plan, by exhaustively determining the works that may be carried out within the project area, does not do so as a simple recommendation or directive, but with the legal force characteristic of a coercive and mandatory provision; that is, of a norm. The review of the legislative file of Law No. 6758, on folios 31 and 103, leaves no doubt as to the effect: the legislator's intention was for the Master Plan to play a preponderant, normative role in the execution of the work, and for the project area to remain reserved exclusively for the development of tourist activities." (C-181-94 of November 23, 1994). Later, in opinion C-307-2020, the PGR indicates: "Articles 2 and 25 of Law 7744 provide that concessions requested within the Proyecto Turístico Golfo de Papagayo must be granted by the Instituto Costarricense de Turismo, in accordance with the Law Regulating the Development and Execution of the Proyecto Turístico Golfo de Papagayo (No. 6758 of June 4, 1982).
And, Article 77 of the Regulation to that Law establishes that Law 6758 shall be applied supplementarily for this purpose. The Proyecto Turístico de Papagayo, according to the provisions of Article 74 of Law 6043, constitutes a special regime, the operation of which is governed by the provisions of Law 6758 and its Regulation (Executive Decree No. 25439 of August 27, 1996). (See our opinions Nos. C-171-1993, C-028-1994, C-094-2000 and C-189-2003 and C-106-2018). Article 2 of Law 6758 establishes that only the works foreseen in the Master Plan, approved by the Instituto Costarricense de Turismo, and all works consistent therewith, according to the technical standards defined by the ICT, may be executed in said project. For its part, the Regulation to said Law provides that the Master Plan is the 'tool for land use control, through zoning and urban development planning approved by the ICT Board of Directors.
It is a directive planning figure, insofar as it indicates the grand guidelines or master lines that are to guide and coordinate the urban or building regulation and land use of the Proyecto Turístico de Papagayo, within the established legal limitations, in harmony with the natural and cultural environment, the nature of which, in addition to being technical, is of normative and mandatory scope.' The General Master Plan Regulation of the Proyecto Turístico Golfo de Papagayo (approved by the Board of Directors of the Instituto Costarricense de Turismo, in ordinary session No. 4572, article 2, section VIII, of July 10, 1995) provides that said plan includes the regulation of land uses, zoning, road systems, densities, bases for site design, and general specifications for the project's development. In this regard, we have indicated that: 'In short, the Master Plan is a directive planning figure, insofar as it indicates the grand guidelines or master lines that are to guide and coordinate the urban or building regulation and land use of the Proyecto de Desarrollo Turístico de Papagayo, within the established legal limitations, in harmony with the natural and cultural environment.
That is, a tool for planning that space, which encompasses two municipal territories and defines the most appropriate uses for the different zones that comprise it. Its effects - it was said - are those characteristic of urban planning: upon its publication, it binds private parties and state entities with jurisdiction over the affected territory, which must abide by its stipulations. In opinion C-181-94 it was stated that the Master Plan of the Proyecto Turístico de Papagayo has a binding and indicative character regarding the works that may be carried out, under the criteria of a reasonable and balanced tourist exploitation of the environment.' (In the same vein, cf. vote 6107-95 of the SALA CONSTITUCIONAL). (Legal Opinion No. OJ-074-2003 of May 14, 2003). It should be noted that, since the Polo Turístico Golfo de Papagayo is an exceptional regime, both legally and administratively, the special legal and technical regulations, in the terms established in the planning instrument which is the Master Plan, already govern the obligations of the concessionaires (developers) within their concession area and towards the community (Corporate Social Responsibility policies).
Thus, the concessionaires of Papagayo, in compliance with the special regulations, have certain obligations that other concessionaires do not have, such as in the Zona Marítimo Terrestre, as is the case with the adjustment of their projects to more rigorous environmental standards, which is another technical standard that the aforementioned master plan contains, such as, for example, the respect for the 70% of areas that must not be intervened. In conclusion, the ICT has fully complied with its role as the governing body of tourism, guaranteeing an adequate balance between economic development and the protection of the ecosystems of Bahía Culebra. Its actions have been based on legality, technical criteria, and a commitment to responsible tourism, which not only conserves natural resources but converts them into the foundation of a sustainable, replicable, and legally sound tourism model. 4- Among the functions or services performed by the ICT, we find on its official website a long list: Tourism contracts; International fairs; Airline ticket exemptions; Authorized lifeguards; Tourist guides; Country brand; tourist information offices; tourist transport; brochures for tourists; beach atlas; lodging registry; crafts with identity; tourism declaration, among others.
We do not find real estate development. But it turns out that now, there are projects concessioned by the ICT within the Proyecto Turístico de Papagayo, which are intended for notifications and Response to statements 4 and 5: It is clarified that there is no Ministry of Tourism in Costa Rica, so it cannot be true that said "ministry" promotes real estate activities for the construction of private residences on land managed by the ICT. Regarding the management of the Board of Directors of the Instituto Costarricense de Turismo on concessions granted in the Proyecto Turístico Golfo de Papagayo for the development of tourist residences, the foregoing is reiterated. The appellant is incorrect in his statements, as it is not true that within the Proyecto Turístico Golfo de Papagayo there exist approvals for the development of non-tourist residences; in fact, the appellant is confusing, and consequently generating an inadequate interpretation of, the regulations governing the Proyecto Turístico Golfo de Papagayo.
First, it is clarified that Articles 1 and 2 of Law No. 6758, in conjunction with the rest of the norms specific to the special Legal System of the Polo Turístico Golfo de Papagayo, define the establishment of a special and specific action framework for the Proyecto Turístico de Papagayo. With said regulations, the State's intention to plan the area's development in a coercive and binding manner for private parties is clearly evident. The Law indicates that ONLY the Project will be developed in the area, and it will be developed according to the Master Plan approved by the ICT and in accordance with the technical standards that said Institute issues to that effect; therefore, there are no legally admissible alternatives other than those established by the Plan, which is also a tool for the control and regulation of land use, zoning, road systems, densities, plot coverage ratio (coeficiente de ocupación de superficie, COS), also known as "coverage," as well as the bases for site design and general specifications for the project's development and its urban development planning.
As previously indicated, but reiterated, this Master Plan is a directive planning figure, insofar as it indicates the guiding principles, the general directives, and the master lines that are to guide and regulate city or building planning and land use of the Proyecto Turístico Golfo Papagayo; all within the applicable legal limitations and the nature of which, in addition to being technical, is of normative and mandatory scope. Among the land uses established by said plan, the figure of "Tourist Residences" is contemplated, a concept that goes far beyond a simple dwelling, corresponding to a type of accommodation that satisfies a specific demand within the tourism market and contributes significant value to the destination. These units may be physically and operationally integrated into the hotel complex, sharing infrastructure, personnel, reservation, and marketing systems. From the perspective of a guest or a developer, they are extensions of the main hotel product, or they may be associated with the constitution of tourist residence condominiums, which will be administered by the corresponding Condominium Administrator.
This type of tourist residence offers longer stays, increasing the tourist's length of stay at the destination, which directly translates into greater spending in the local economy (restaurants, tours, shops, services). This is a key objective of tourism development, not only for the Polo Turístico Golfo de Papagayo but for the country as a destination in its different tourist areas, as can be verified in the regulatory plans (planes reguladores) of the different coastal zones of the country; plans that, incidentally, also contemplate a residential and even housing use within the areas declared tourist zones, Article 57, subsection a), point 3 of the regulation to the Law on the Zona Marítimo Terrestre, (Executive Decree 7841 of 12-16-1977). In the specific case of the Polo Turístico Golfo de Papagayo, the possibility of concessions for tourist residential use is clearly established, and for the sake of achieving the public purpose pursued by the Polo Turístico Golfo de Papagayo, execution deadlines were established (Article 17, Decree 25439-MP-TUR).
In addition to the above, lodging services with complementary activities such as the rental of residences or villas, or the activity of non-traditional lodging services, are tourist activities already duly regulated in the general regulations on tourism. Furthermore, the limitations on the design and construction of tourist projects established in the PTGP Master Plan apply equally, regardless of whether they are lodging or residential housing units (Master Plan Regulation Article 5.) Having said the above, it is not true that concessions have been granted within the Proyecto Turístico Golfo de Papagayo that do not correspond to the land uses established within the General Master Plan; all those projects that consider the development of tourist residences adhere to what is regulated within this normative figure, and it is also not true that the ICT Board of Directors has granted residential concessions for NON-TOURIST use.
The Proyecto Turístico Golfo de Papagayo is regulated by a special legal regime, mainly contained in: Law No. 6370 of September 3, 1979; executive decrees issued in development of said law; the Project Master Plan, as a technical-normative planning instrument; general administrative regulations (General Public Administration Law, Administrative Contracting Law, environmental and territorial planning regulations). This regime grants the ICT powers of planning, administration, concession, and regulation of land use in a delimited area of the Golfo de Papagayo, including both the tourist infrastructure and the complementary equipment necessary to guarantee its operation and sustainability. Therefore, tourist residential use as a legal and planned component of the development model is valid. Contrary to what was stated, tourist residential use is expressly contemplated within the Project regime and forms part of an integral development model based on the diversification of the tourism offer.
The Master Plan, approved in accordance with the current legal framework, establishes specific zones for this type of use, which allows the construction of: tourist villas; temporary occupancy condominiums; private residences for vacation or long-stay use. For its part, Articles 1 and 2 of Law No. 6758, in conjunction with the rest of the norms specific to the special sectoral Legal System of the Polo Turístico Golfo de Papagayo, define the establishment of a special and specific action framework for the Proyecto Turístico de Papagayo. With said regulations, the State's intention to plan the area's development in a coercive and binding manner for private parties is clearly evident. The Law indicates that ONLY the Project will be developed in the area, and it will be developed according to the Master Plan approved by the ICT and in accordance with the technical standards that said Institute issues to that effect; therefore, there are no legally admissible alternatives other than those established by the Plan.
The planning figure called "master plan" is developed in Article 2, subsection h) of the Regulation to Law 6758, which details its concept and scope: "h) Master Plan: Tool for the control and regulation of land use, zoning, road systems, densities, plot coverage ratio (COS), also known as 'coverage,' as well as the bases for site design and general specifications for the development of the project and its urban development planning, according to the 'General Master Plan Regulation of the Proyecto Turístico Golfo de Papagayo,' approved by the ICT Board of Directors, in Ordinary Session No. 4572, article 2, section VIII, held on July 10, 1995, and published in the Official Gazette La Gaceta No. 140 of July 24, 1995, and its amendments. The Master Plan is a directive planning figure, insofar as it indicates the guiding principles, the general directives, and the master lines that are to guide and regulate city or building planning and land use of the Proyecto Turístico Golfo Papagayo; all within the applicable legal limitations and the nature of which, in addition to being technical, is of normative and mandatory scope." Regarding the master plan of the PTGP, the Attorney General's Office (PGR) has stated: "Consequently, this binding nature of the Plan prevents it from being considered a simple technical directive.
On the contrary, it is easy to conclude that the Master Plan, by exhaustively determining the works that may be carried out within the project area, does not do so as a simple recommendation or directive, but with the legal force characteristic of a coercive and mandatory provision; that is, of a norm. The review of the legislative file of Law No. 6758, on folios 31 and 103, leaves no doubt as to the effect: the legislator's intention was for the Master Plan to play a preponderant, normative role in the execution of the work, and for the project area to remain reserved exclusively for the development of tourist activities." (C-181-94 of November 23, 1994). The PGR adds in the same pronouncement just cited: "In this regard, we find that the Master Plan constitutes an act of regulatory value. Therefore, it is necessary to examine to which body within the ICT the legal system has assigned the competence to issue regulations.
Thus, Article 26 of Law No. 1917 provides, in relevant part: 'The Board of Directors shall have the following powers: (....). b) To dictate, enact, reform, and interpret the internal regulations necessary for the better development of the Institute's purposes; and to submit to the Executive Branch the regulations that require its approval. For the regulations and reforms issued by the Board of Directors to be valid, they must be published in the Official Gazette.' So, if it corresponds to the Entity's Board of Directors to regulate the internal activity of the entity and of those administered under a special subject relationship with the Institute, it must be concluded that this competence extends to the modification and repeal of the issued norms, even when this power has not been specifically established. (…). Therefore, it must be concluded that the Board of Directors has express competence to intervene directly in matters relating to the Proyecto Golfo de Papagayo, regulating it originally through the issuance of the Master Plan, that is, through amendments to the Plan." In complete harmony with the provisions of the Law for the Creation of the Iguanita Refuge, the PTGP Master Plan itself provides: "b) Respect for protected areas within the Polo Turístico: The evaluation and identification process carried out by MINAE, within the area covered by the Polo Turístico, has made it possible to accurately determine the sites that require special attention from the Executing Office because they are protected areas, as recognized under environmental legislation.
Particularly notable is the Refugio Nacional de Vida Silvestre de Playa Iguanita, located on the Península de Nacascolo, according to Law No. 8731 of July 3, 2009, published in La Gaceta No. 159 of August 17, 2009, as it is considered primary forest, dry tropical forest, which includes a mangrove, the administration, protection, and management of which is the responsibility of the Sistema Nacional de Áreas de Conservación, of the Ministerio de Ambiente y Energía(*) (MINAE)(*), through the Área de Conservación Tempisque, which is responsible for preparing the management plan for the National Refuge, without prejudice to the provisions of Law No. 6758 of June 22, 1982." It should be noted that, since the Polo Turístico Golfo de Papagayo is an exceptional regime, both legally and administratively, the special legal and technical regulations, in the terms established in the planning instrument which is the Master Plan, already establish the obligations of the concessionaires (developers) within their concession area and towards the community (Corporate Social Responsibility policies).
Thus, the concessionaires of Papagayo, in compliance with the special regulations, have certain obligations that other concessionaires do not have, such as in the Zona Marítimo Terrestre. The adjustment of their projects to more rigorous environmental standards is another technical standard that the aforementioned master plan contains, such as, for example, the respect for the 70% of areas that must not be intervened. In this regard, Article 5 of the Regulation to the Master Plan provides: "5.1 On the design and construction of tourist projects a) Subordination of the tourist project design: All designs of the tourist projects that the concessionaires intend to carry out are subject to the guidelines and regulations established by this Regulation and the General Master Plan, as well as the regulations issued by the ICT in its complement, with the Executing Office responsible for ensuring that such designs comply with these guidelines, regulations, technical feasibility, as well as the opportunity and advisability of the projects submitted for its approval, with the objective of preserving the tourist purpose granted by its special law.
In the project designs, the principle of the concessionaire's responsibility to adhere to the general guidelines or master lines that pursue the public purpose established by the legislator, of an international quality tourism development, in direct relation to the characteristics of the region and the country where it is located, its cultural context and its archaeological heritage, as well as regarding the identified ecosystem of the zone, must prevail." The foregoing denotes that the concessionaires of Papagayo have obligations beyond those established for concessionaires in the rest of the coastal zones, by virtue of the special nature of the purpose granted by the legislator to the Project areas, which makes the development intention much more restrictive. This is because the Polo Turístico Golfo de Papagayo, as previously indicated, despite the fact that the vast majority of its land was used for cattle ranching, was born as an initiative to establish a policy to promote tourism in the Central American region, in areas that, until that time, were undeveloped, which despite their characteristics, were envisioned as suitable for those purposes and which at that time needed that economic and social boost.
By virtue of the circumstances of the time, the "Bahía Culebra" Project, as it was originally called, had to have elements and conditions that would constitute an incentive for the specific investment sought, to truly create a first-class Polo Turístico, within areas that until then lacked any development. Now, extracting areas administered by the ICT (unless by law of the Republic) would generate legal uncertainty for investors who already have agreed-upon development projects and on which investments have been made for the execution of their concession contract. These typologies do not constitute speculative real estate developments, but rather correspond to a category recognized as residential tourism, as defined in doctrine, international practice, and national jurisprudence. Thus, the authorization of projects with a residential component by the ICT is based on: 1- The legal power to regulate land use within the concessioned area, pursuant to Article 1 of Law No. 6370. 2- The existence of tourist residential zones duly delimited in the Master Plan, approved by formal administrative act. 3- The incorporation of these uses in the regulatory norms governing the regime (e.g., Executive Decree No. 32001-MP-TUR, among others). 4- The existence of concessions subject to contractual conditions, terms, payments, and oversight, without transfer of public domain.
At the administrative level, the Contraloría General de la República and the Procuraduría General de la República have recognized the planned nature of the Papagayo regime and the need to interpret its provisions within the special context of its framework law. The lands subject to concession within the Project remain public domain assets under the ICT's administration. Concessions for tourist residential use do not imply alienation but rather a special legal regime that contemplates limited, temporary rights subject to conditions, which does not denature the public domain nor constitutes private real estate activity in the strict sense. Likewise, the ICT does not act outside its competence but operates within the limits established by law, with technical criteria, and with the proper inter-institutional coordination, including SETENA, MINAE, municipalities, and other bodies when applicable.
The ICT does not promote private real estate activities unrelated to its purposes, nor does it exceed its functions; on the other hand, it is the responsibility of each concessionaire to carry out its own promotional activities for the tourist project; in any case, the development of the project and a future transfer to a third party through the figure of assignment are legal acts that must have the approval of the ICT Board of Directors. Concessions for tourist residential use fall within the legal, planned, and sustainable development model established by the Papagayo regime, pursuant to Law No. 6370, its regulation, and the current Master Plan. Their granting and regulation constitute acts inherent to the control of administrative legality, and not configurations contrary to the constitutionality block. Any contrary interpretation disregards the nature of the special regime approved by the legislator and could lead to a partial and legally unfounded reading of the ICT's legal functions.
These questions regarding the ICT's conduct, as established by the Sala Constitucional in the precedents we detailed above, require a detailed review of the ICT's actions regarding its duties and obligations, as it can be observed that, in the appellant's opinion, it is believed to have been acting in contravention thereof, and for this, evidence must be examined to define whether the alleged "lotificación" to which the appellant alludes truly exists and which is what apparently leads him to the conclusion of the ICT's non-compliance. It is reiterated, a tourist project could be for future partial assignments in favor of third parties, legal acts that must be consistent with the concessionaire's development plan. In any case, the foregoing analysis is not appropriate for an amparo proceeding, as the Sala has developed and made clear for a long time, but rather falls under the jurisdiction of ordinary legality review, as it requires the review of administrative conduct. 6- We can document this fact by referring specifically to the case of LOTE 1, concessioned by the ICT, concession lot 2168-Z-000, cadastral map 5-1186670-2007, where the subdivision (lotificación) of 90 Villas of more than between 1,000 and 1,500 m2 each is contemplated.
This appears in Official Letter PGP0451-2024 dated June 14, 2024, signed by several ICT officials. 7- This modality of selling lots for villas is not contemplated in the original concession contract to the company. concession 2168-Z-000. Incidentally, we point out that the original contract should expire on August 3rd of this year, 2025, without the company having fulfilled what it promised to do during this 20-year contract period.
Response to these two aspects: The appellant is incorrect, since every concession in the Polo Turístico Golfo de Papagayo has been granted in accordance with the tourism purpose (fin turístico) indicated by the regulations, not only in Law 6758 but also in the Regulation to said law, in whose Article 2, subsection q) the concept of Tourism Purpose (Fin Turismo) is defined as: “It is the ultimate and supreme public purpose pursued by Law No. 6758, consisting of the productive tourism development of the Proyecto Turístico Golfo Papagayo, in harmony with the uses established in the Master Plan of the Proyecto Turístico Golfo Papagayo.” Therefore, it is not true that there exists any directive or regulation that changes the tourism purpose of the project. Consequently, the land uses regulated by the General Master Plan of the Proyecto Turístico Golfo de Papagayo are of a tourism nature; thus, when the land use indicates: Hotel area, Commercial area, Condohotel area, Residential area, Public camping and parking area, and other uses; it is implicit that these are of a tourism nature—that is the public purpose of the Proyecto Papagayo.
As evidence of the foregoing, the registry consultation conducted at the Registro Nacional de Costa Rica is submitted; for the property with real folio registration number 5-2168-Z-000, it is observed that its registration states as “NATURE: LAND FOR THE DEVELOPMENT OF A TOURISM PROJECT IN PLAYA PANAMÁ,” which confirms that said parcel has as its purpose the development of a tourism project, exactly as indicated in the regulations, demonstrating that the appellant’s assertion is untrue. It is true that PGP-0451-2024 of June 14, 2024, corresponds to a technical opinion issued by two officials for the Executive Directorate recommending the approval of the cadastral plan for the property with real folio registration number 5-2168-Z-000, cadastral plan 5-52763-2023, for the submission of the property to the condominium property regime, as established in the corresponding regulations. What is not true is that said official communication indicates in any way that the project to be developed departs from the tourism purpose established by law, it being clear that in the respective comprehensiveness contract signed for the lands granted in concession to the company Enjoy Hotels & Resorts, S.A., where in the First Addendum to the Contract, clause six, it is indicated that the tourism project to be developed in Dirección03 consists of 240 hotel rooms and 967 of other uses, referring to rooms located under the modality of villas, time-shares, and tourism residences, among others.
In addition, clause fourteen of the concession contract clearly indicates that, with prior approval of the ICT, total or partial transfers of the concession may be granted in accordance with the regulations of the Regulation to Law 6758; furthermore, it indicates that any total or partial transferee becomes a new concessionaire of the ICT. Specifically in the Regulation to Law 6758, Article 12 regulates the conditions for, among other things, the transfer of concession rights, stating verbatim: Article 12.- It corresponds to the Board of Directors to authorize the granting of concessions, modifications to the General Master Plan, total or partial transfers, segregation, all types of encumbrances, as well as transfers in fiduciary ownership of concessions, as well as the submission of the concession to a condominium regime, the transfer of concessions to investment fund management companies, and the corporate mergers of concessionaire legal entities by absorption resulting in a new concessionaire, land-use change (cambio de uso de suelo), density and coverage compensation, and in general any act affecting the administrative real right of the concession that requires modification of the concession contract.
In those cases where the approved act requires its registry inscription, a prior technical and legal report shall be required. Every awardee of a concession, as well as in the case of extension or adjustment, must pay the concession fee to the ICT. Said value shall be adjusted following the procedure established in Point X. Procedure for Indexation of the Fee Value for granting, extension, or adjustment, of the Sole Annex of this Regulation. Acquirers by transfer or conveyance of a concession must demonstrate that they meet all the requirements to be concessionaires. In the case of partial or total transfers, or in the case of awardees in enforcement proceedings of guarantees constituted over concessions without interest in the development of the concession, they must accredit the requirements established in Point V) Requirements for Total or Partial Transfer of Concession, of the Sole Annex of this Regulation and Decreto Ejecutivo 29794-MP-TUR of August 30, 2001, called “Regulation of Real Guarantees Encumbering Concessions of the Polo Turístico Golfo Papagayo” published in La Gaceta No. 180 of September 19, 2001, and its amendments, respectively.
It is thus clear that they question the scope of the bidding terms, as well as those of the contract in relation to the development of the project, and thereby submit for consideration and analysis by this Chamber the determination of that aspect; which evidently requires an analysis of legality and not of constitutionality. Likewise, they seek to have determined, via amparo, the breach of contractual obligations governing the concession, an aspect that does not fall within the jurisdiction of the Constitutional Chamber, as there is no violation of a fundamental right warranting the filing of an amparo appeal. These assertions undoubtedly require a detailed review of what is contemplated in the contract, what was promised by the concessionaire, and what has occurred during those 20 years of the contract in order to determine whether there are breaches as the appellant claims. Furthermore, a very ill-intentioned action by the appellant is noted, in also indicating that the concession term expires on August 3, 2025, when it suffices to access the public consultation system of the Registro Nacional where it can be verified that the concession term …”.
“… 8- The land granted in concession in this act, LOTE 1 of 43 hectares with 6563.63 m², is covered by forest, according to official documents. We provide Official Communication SETENA-SG-0646-2025 of May 20, 2025, which states that according to the Geographic Information System source, the lot 1 analyzed here had a forest cover (cobertura boscosa) of 99% in the year 2000 and of 98% in 2023. In relation to the specific case, it must be observed that as recorded in the Environmental Assessment Document D1-0170-2021-SETENA, “…it is noted that in the project area different types of vegetation cover are identified, including secondary forest, mature forest, and deciduous forest, in accordance with the cadastral plans of the project and data from FONAFIFO. In addition, in said plans areas classified as Class VII: Forest Management are identified, in cadastral documents 5-1186670-2007, which corresponds to LOTE 1, concession 2168-Z-000. 9- Ley Forestal No. 7575 of 1996 declares all forests located on lands owned by the State or its institutions as Natural Heritage of the STATE and obliges us to protect them.
Ley Forestal 7575 “ARTICLE 13.- Constitution and administration The natural heritage of the State shall be constituted by the forests and forest lands of the national reserves, of areas declared inalienable, of properties registered in its name, and of those belonging to municipalities, autonomous institutions, and other agencies of the Public Administration, except for immovable properties that guarantee credit operations with the National Banking System and become part of its assets.” The law does not exempt the ICT or Proyecto Papagayo from compliance. The areas may be destined for ecotourism uses, where inhabitants and international visitors can enjoy walks, wildlife sighting, camping, and other healthy, positive, and sustainable activities in our forests. Response to these two aspects: As the appellant herself demonstrates with the evidence provided to the case file, there exists a nullity motion against the environmental feasibility (viabilidad ambiental) granted to the project that she herself filed before SETENA and which, to date, is pending resolution; therefore, the Constitutional Chamber cannot address the issue, given that its jurisdiction, as clearly delimited, is nonexistent when the matter is being ventilated before the administration itself, and she has expressly defined that, as we have already indicated, it will only address it when it is demonstrated that the administration did not attend to the complaint; a precondition that is not met in this case and which warrants the dismissal of the present amparo. 10-That forest, Natural Heritage of the STATE, represents for us a good that all people living in the area or those who visit as tourists can enjoy, as well as the great variety of wildlife, birds, monkeys, raccoons, coatis, squirrels, iguanas, and dozens of additional species present in the area.
According to Ley Forestal No. 7575, forests located on lands owned by the STATE and its institutions are Natural Heritage of the STATE. Therefore, those forests must be preserved, according to that current law. 11- We file this AMPARO appeal against the destruction of the forest of Playa Panamá, on lands which in this case are owned by the STATE, for NON-TOURISM uses. We oppose the mere trafficking of goods and real estate businesses by the private concessionaire company. The concessionaire company is affecting, degrading the forest WITHOUT HAVING permits from SINAC – MINAE, in full view and with the tolerance of the ICT. 12-The subdivision (lotificación) of 90 Villas of more than between 1,000 and 1,500 m² each appears documented and detailed in Official Communication PGP-0451-2004. The subdivision is not in the original concession contract signed by the ICT and is contrary to what was offered in the Public Tender process, awarded and thus granted in concession by the ICT.
In an advertising campaign domestically and abroad, in Spanish and English, the company offers properties in its Bahía Papagayo project, without indicating that these are public lands, owned by the STATE, inalienable. We reiterate that the company has breached its contractual obligations during the first 20 years of the concession’s validity. The concession term expires according to the original contract on August 3, 2025. 13-It should be emphasized that the information used to support this appeal is based on documentation obtained from the ICT after an amparo appeal for omission of response, which the Constitutional Chamber declared WITH MERIT, Case File 25-004460-0007-CO, Resolution No. 2025007129, at nine hours twenty minutes on March seven, two thousand twenty-five, wherein it was ordered “within a period of TEN DAYS, counted from the notification of this judgment, the appellant be provided with all the requested information.” 14-The subdivision for the construction of luxury residential villas on the property owned by the STATE, granted in concession, does not correspond to the Master Plan which is mandatory, pursuant to Article 2 of Law 6754.
Article 2.- In the area destined for the development of this project, only the works provided for in the Master Plan, approved by the Instituto Costarricense de Turismo, and all works consistent therewith shall be carried out, in accordance with the provisions of this law and in accordance with the technical standards that said Institute issues for such purpose. (highlighting not from the original) Response to these five aspects: The appellant is incorrect, since, through the First Addendum of the concession contract called Adjustment of the Concession Term 2168-Z-000, Lote 1, clause THIRTEENTH of the concession contract is modified so that the term is adjusted from August 3, 2005, to August 3, 2034, an addendum that was remitted to the appellant via Official Communication PGP-0155-2025. Likewise, the registered term of the concession can be seen in the registry consultation conducted at the Registro Nacional.
The appellant continues in her facts asserting that the Constitutional Chamber should address the case and determine whether the project corresponds or not to the Master Plan which is mandatory, by stating verbatim that the subdivision for the construction of luxury residential villas on the property owned by the STATE, granted in concession, does not correspond to the Master Plan which is mandatory, pursuant to Article 2 of Law 6754. (pg. 6) Article 2.- In the area destined for the development of this project, only the works provided for in the Master Plan, approved by the Instituto Costarricense de Turismo, and all works consistent therewith shall be carried out, in accordance with the provisions of this law and in accordance with the technical standards that said Institute issues for such purpose …”. “… Reinforcing the foregoing, it is precisely that she highlights the need for the Chamber to have the current Master Plan in order to determine whether the project complies or not with what is indicated in Law 6754, which unequivocally evidences that her claim is precisely that the Constitutional Chamber analyze in depth the compliance of the Project with respect to the Master Plan and Law 6754, since she states: “Having at hand the current Master Plan, with all inputs, technical studies, and definitions, is essential for the resolution of this amparo, to verify whether what is challenged here complies or not with what is indicated in Law 6754.
In the absence of said document, it confirms that the ICT violates Law 6754 of the Proyecto Papagayo itself.” Regarding the Master Plan, it was approved by the Board of Directors in its session No. 4572, article 2, subsection VIII, of July 10, 1995, published in the Diario Oficial La Gaceta No. 140 of July 24, 1995; partially modified by the General Master Plan in the Península de Nacascolo, approved by agreement of article 2, subsection XII, of session number 5302 of May 4, 2004, published in La Gaceta number 95 of May 17, 2004, and partially amended in its normative part by agreement taken in session No. 5317, article 2, subsection II, of August 3, 2004, and published in La Gaceta No. 157 of August 12, 2004. The Board of Directors of the ICT, in ordinary session No. 5740, article 5, subsection I, held on March 27, 2012, through Official Communication SJD-155-2012, agreed as follows: “A) Based on the Agreement Communication No. CDP-048-2012 taken by the Consejo Director of the Polo Turístico Golfo de Papagayo in extraordinary session No. 07-2012, article U, subsection I, and in accordance with Official Communications No. PGP-297-2012 and PGP-276-2012 signed by the Oficina Ejecutora de Papagayo, and having followed the consultative procedure established in Article 264 of the Ley General de la Administración Pública, to approve the ‘Strategic Update of the Regulation to the Master Plan of the Polo Turístico Golfo Papagayo’ and ‘Amendment to the Regulation of the Master Plan of the Polo Turístico Golfo Papagayo.’ B) To instruct the Executive Directorate of the PTGP to proceed as soon as possible with the respective publication in the Diario Oficial La Gaceta.
The publication took place on Wednesday, May 2, 2012, in La Gaceta No. 84. “The Master Plan constitutes the regulatory framework of action for the Proyecto Turístico Golfo Papagayo, and with said regulations the intention of the State to plan, in a binding manner for the individual, the development of the area is in clear evidence.” (Text taken from the Ordinary Session of the Board of Directors of the ICT, No. 4572, article 2, subsection VIII, held on July 10, 1995). Based on technical regulatory foundations and the concession contract, the ICT regulates the projects to be developed within each concession, with the developer having to submit construction plans for prior review in order to verify that they comply with the guiding principles of the General Master Plan of the Proyecto Turístico Golfo de Papagayo, which encompasses the regulation of land uses, zoning, roadways, maximum permitted densities, surface occupation percentages, bases for site design, and general specifications for the development of projects to be built within the Polo Turístico Golfo Papagayo.
In the cited Master Plan, the specific guidelines that every concessionaire of the Polo Turístico Golfo Papagayo (PTGP) must consider for the design and construction of the proposed tourism project are broken down, among which stand out: 5.1. Specific guidelines for the design and construction of tourism projects a) Subordination of the tourism project design. “All designs of tourism projects that concessionaires intend to carry out are subject to the guidelines and regulations provided by this Regulation and the General Master Plan, as well as the regulations issued by the ICT in complement thereof, with the Oficina Ejecutora responsible for ensuring that such designs conform to these guidelines, regulations, technical feasibility, as well as the timeliness and advisability of the projects submitted for its approval, with the objective of preserving the tourism purpose granted by its special law (…)”. e) Use of colors in external surface finishes.
“The designs of the structures that make up the proposed tourism development must preferably use exterior colors that mitigate light, do not degrade the environment, and even allow their camouflage in the surrounding setting where they are built.” f) Design of rainwater collection systems. “The rainwater collection systems of the architectural designs must be channeled to prevent erosion from free-falling rain, in order to seek to induce filtration of rainwater into the subsoil.” g) Height of buildings “To maintain uniformity and respect for the scenic beauty of the Polo Turístico, the design and construction of buildings shall not exceed fourteen meters in height, measured from the natural ground level, according to the characteristics offered by each development area per the technical assessment of the Oficina Ejecutora and in compliance with the provisions of the current Construction Law and Regulation.” h) Roof treatment “The roofs of buildings shall be designed seeking the use of materials that minimize visual impact on the environmental setting, favoring their camouflage where possible.
The use of tiles or thatch shall be preferred.” i) Limit of twenty average rooms per hectare “Without prejudice to the specific considerations that the Oficina Ejecutora must make for a particular development project, according to its magnitude and topographical location, only twenty rooms on average may be built per hectare of land granted in concession, regardless of whether the development involves accommodation housing units or residential ones. Compliance with this principle must be monitored by the Oficina Ejecutora, even in cases where the project design involves a concentration of rooms in few buildings.” Surface occupation coefficient “A surface occupation coefficient no greater than 30% (thirty percent) maximum of the total originally conceded area must be maintained, to which the designs of the proposed tourism projects must conform.” Respect for the environment “All architectural designs formulated by concessionaires must contain elements of respect for the environment: external lighting at the lowest possible height and intensity, use of alternative energies, underground electrical and telephone wiring, etc.” 5.2 Waste Management Adequate wastewater treatment plant “Each of the tourism projects in its design and during its operation must have a blackwater treatment plant adequate for the size of the development, in good working order, which does not cause odor pollution, and to which all its wastewater shall be connected.
These plants must generate water reuse for the irrigation of green areas or golf courses. Installing septic tanks shall be prohibited. According to the recommendations of technical studies deemed pertinent, the Oficina Ejecutora may authorize two or more concessionaires to build or use a single collective treatment plant for the wastewater of their respective development projects. In any case, the provisions of Decreto Ejecutivo No. 33601-MINAE-S of March 19, 2007, must be respected.” Prohibition of dumping waste into the sea or beach “Under no circumstances shall tourism projects be permitted to design or construct facilities that dump their waste into the sea or beach. This prohibition includes even treated water resulting from treatment plants, unless it is reliably certified before the health authorities that its potability is fully guaranteed.” Very recently, the Procuraduría General de la República, through Official Communication PGR-C-156-2025 of July 16, 2025, reiterates what has already been indicated regarding the tourism development regime of the PTGP.
“3.- The area affected to the Proyecto Turístico Golfo de Papagayo constitutes a special regime of the maritime-terrestrial demanio under the direct administration of the ICT, without prejudice to the usufruct and fees corresponding to the local municipalities, and the concurrent competences that other state organs or entities have regarding certain matters or goods. The ICT is the authority empowered to grant concessions for the development of marinas and tourism docks in that sector, and they must be in conformity with the Master Plan, which is the directive planning figure or ordering tool for that space, with binding and indicative character of the works that may be carried out. (Articles 74 of Law 6043; 1 and 32 of Law 7744; 5 and 77 of its Regulation; 2 of Law 6758, 2 subsections h and q and 14 subsection c of its Regulation, Decreto 25439. Legal Opinion OJ-74-2003 and opinion C307-2020).
The General Master Plan of the Proyecto Turístico Golfo de Papagayo was approved by the Board of Directors of the ICT in ordinary session 4572 of 1995, and the latest modification through agreement 5740 of 2012 of that Board of Directors. Gaceta 84 of May 2, 2012. “The lands granted in concession—which do not include the maritime-terrestrial zone—in the Golfo de Papagayo belong to the ICT.” (Constitutional Chamber, judgments 18483-2007, 15595-2008, 15596-2008, and 8622-2010).” With respect to protected areas within the Polo Turístico, it is established that the evaluation and identification process carried out by MINAE within the area covered by the Polo Turístico has made it possible to precisely determine the sites where special attention from the Oficina Ejecutora is required because they are protected areas, recognized as such under environmental legislation. Particularly notable is the Refugio Nacional de Vida Silvestre de Playa Iguanita, located on the Península de Nacascolo, according to Law No. 8731 of July 3, 2009, published in La Gaceta No. 159 of August 17, 2009, for being considered a primary forest, tropical dry forest, which includes a mangrove, whose administration, protection, and management is the responsibility of the Sistema Nacional de Áreas de Conservación, of the Ministerio del Ambiente, Energía y Telecomunicaciones (MINAET), through the Área de Conservación Tempisque, which is responsible for drafting the Management Plan for the Refugio Nacional, without prejudice to the provisions of Law No. 6758 of June 22, 1982.
As can be observed, projects to be developed within the Polo Turístico Golfo de Papagayo may only affect a footprint (Surface Occupation Coefficient) of 30% of the area given in concession, and within that 30% there is a limit of 20 rooms per hectare at a maximum height of 14 meters, leaving 70% of the area without development and with vegetation cover. In addition to the guiding principles for development, every concessionaire must comply with the regulations established by the other public institutions, including having a current and approved environmental feasibility for the development of the project. With respect to natural areas formally established within the limits of the Proyecto Turístico Golfo de Papagayo, such as mangroves, they are already under the administration, protection, and management legally entrusted to MINAE – SINAC, and therefore cannot be considered as developable areas and are not within the areas given in concession. 15-We must highlight that the current Master Plan, with its details on land uses, zoning, density, and specifications for the development of the Proyecto Papagayo, we have not been able to obtain from the ICT.
They only provided us with its Regulation. We request that in the response of the respondents herein, this document be provided, duly certified, with special detail of the area in question in Playa Panamá. Having at hand the current Master Plan, with all inputs, technical studies, and definitions, is essential for the resolution of this amparo, to verify whether what is challenged here complies or not with what is indicated in Law 6754. In the event of absence of said document, it confirms that the ICT violates Law 6754 of the Proyecto Papagayo itself. 16-The neighbors settled in Playa Panamá bought private properties near Papagayo, outside the area of state property, and built our homes, attracted by the natural and scenic beauties provided by its forests and beaches. We seek tranquility and nature. We feel affected, assaulted, hurt, and annoyed by the intention to destroy and eliminate the forests that we so love and enjoy.
We do not want them to destroy the biological corridor of the monkeys and other animals that we know and help protect. We defend that same right on behalf of the national and international visitors who visit us, and on behalf of all the inhabitants of Costa Rica of today and the future, to whom these lands of the STATE administered by the ICT belong. Therefore, emotionally, but also legally, we do not want them to affect the quality of our lives, to destroy the environment in which we decided to live. For believing in the legal security of Costa Rica, in respect for current laws, we feel legitimized to file this amparo appeal and trust in obtaining fair treatment. Response to these two aspects: Through Official Communication PGP-0196-2025 of March 25, 2025, a certification is made wherein, at the request of the appellant, the General Master Plan of the Proyecto Turístico Golfo de Papagayo, published in 1995 in the Diario Oficial La Gaceta No. 140 of July 24, 1995, was transferred to her, along with Consejo Director agreements CDP-048-2012 and Board of Directors SJD-155-2012, as well as Official Communications PGP-0276-2012 and PGP-0297-2012 signed by the Oficina Ejecutora del Polo Turístico Golfo Papagayo and the amendment to the Regulation of the General Master Plan of the Polo Turístico Golfo Papagayo, which was published in the official journal La Gaceta No. 84 of May 2, 2012, within which are found land uses, zoning, density, and specifications for the development of the Proyecto Papagayo.
These two aspects are more tied to her claims. I consider it necessary to also demonstrate that the appellant's claims are not proper to an amparo appeal, but rather are linked to matters of ordinary legality: “WE REQUEST 1.- That this amparo be admitted for processing. 2.- That it be requested that in the response of the respondents herein, a copy of the Master Plan of the Proyecto Papagayo current as of today’s date be provided, duly certified, with special detail of the coverage and zoning of the lands of the Proyecto Papagayo in Playa Panamá. 3.- That in the judgment, the ICT be ordered to exclusively promote tourism works and projects. 4.- That it be ordered to protect the forest areas that are Natural Heritage of the State of concession 2168-Z-000, cadastral plan 5-1186670-2007. 5.- That the ICT be ordered to deny permits for the segregation and sale of lots for private villas on lands owned by the STATE in Proyecto Papagayo. 6.- That the ICT be ordered that on that forest-covered lot, only activities permitted by law (hiking, wildlife sighting, and the like) may be carried out. 7.- That the respondents herein be ordered to adhere in the future to approving only works and projects contemplated in the current Master Plan of the Proyecto Papagayo.
(pg. Regarding the scope of the appellant’s standing, she expressly demonstrates that there is an issue of legality by again affirming that the development is contrary to current laws, and not to fundamental rights: “Standing. The current action does not pursue personal economic interests. It concerns the defense of the principle of equity in the enjoyment of a public good, of guaranteeing access for all inhabitants to the forest that is Natural Heritage of the State, today affected by ICT decisions in favor of a real estate, residential urban development, contrary to current laws.” (pg. 8) There is no doubt that the analysis sought by the appellant DOES NOT meet the preconditions required to consider it as the object of an amparo proper to a summary procedure, and all the analysis that she requests be carried out undoubtedly distorts the figure of amparo.
As the Chamber has stated in the rulings we cite, those cases requiring an analysis of compliance with what is stipulated in the regulations, as well as the demonstration and production of evidence to define the legality of the actions, are matters of ordinary legality that cannot be heard through an amparo action, since doing so would distort its summary nature. Indeed, their claims are linked to a matter of legality proper, none of them linked to constitutional rights, since what they basically seek is to obtain a copy of the Master Plan (Plan Maestro) (which has already been provided to them), that the denial of permits for the Project be ordered to the ICT, that the ICT be ordered to only carry out activities permitted by law in that area—a purely legality matter—that abstention from future conduct be ordered, and that the protection of the forest be ordered. Based on the considerations of fact and law set forth, we respectfully request that this amparo action be rejected outright on the grounds that what is sought by the Asociación Confraternidad Guanacasteca in relation to the Proyecto Desarrollo Bahía Papagayo and the ICT are claims proper to an ordinary legality analysis, as they require a detailed analysis of the alleged non-compliances and violations of the legal system, and not a constitutionality analysis proper to an amparo action, since, as the petitioner itself states, there is already an administrative nullity proceeding filed by the same Association, in which the viability granted to the project is precisely being questioned due to an alleged violation of applicable regulations.
Finally, it is worth remembering that, as the Constitutional Chamber has pointed out when analyzing the precautionary principle (principio precautorio) in environmental matters, it is essential—when not absolutely mandatory—to demonstrate the environmental impact (afectación ambiental), and not the petitioner’s feeling, as evidenced in its action, since it starts from mere subjective assessments lacking any evidentiary support, which are far from reality; evidence that, as this Constitutional Court has contemplated, falls on the petitioner, under penalty of rejection—as is the case before us.".
In this regard, it is the majority view that, by means of amparo, a matter alleging a violation of the right to a healthy and ecologically balanced environment should only be heard if the Administration has not yet intervened and when the violation of that right is manifest and evident, easily verifiable, of certain importance or gravity, and directly affects a specific person or community. Otherwise, the matter must be raised and discussed through the legality jurisdiction. The above criterion was likewise replicated in its Resolution No. 07061 – 2024, of March 15, 2024, and in Judgment No. 26246 of November 4, 2022, where the Chamber made clear the need to file a complaint and its residual action in the absence of attention to it, warning about the rejection of the amparo in cases where no complaint has been filed before the administrative authorities. In this latter decision, it stated: “This is, fundamentally, because the appellant neither alleged nor, much less, demonstrated having filed, prior to filing this amparo, a complaint, whether before CONAVI, or before the authorities of the Municipality of Parrita or the Ministry of Health, through which, in turn, the sole grievances indicated herein have been presented (namely, the generation of water ponding that produces, according to the plaintiff's opinion, mosquitoes, bad odors, and, furthermore, diseases) and that, for their part, such authorities have not issued a resolution within a reasonable period.
In that sense, it must be clarified to the appellant that this Constitutional Chamber is not an instance for processing environmental complaints; a criterion that has been upheld through abundant jurisprudence. To this effect, in Judgment No. 2018-3787 of 09:15 hrs. of March 6, 2018 (…).” The position of the Constitutional Chamber is clear: challenges in environmental matters must be brought before the competent authorities, and in those cases where the Administration has not acted with due diligence to address them, it is possible to resort to the constitutional jurisdiction, this being so because the Constitutional Chamber is not a processor of environmental complaints. This position also allows the conclusion that, when a complaint, proceeding, or motion for nullity exists, filed before the same Administration—as occurred in this case—the Chamber can act only if there is inertia, and the amparo cannot be processed in parallel, just as the appellant seeks by having filed this amparo with full knowledge of the existence of a motion for nullity that they raised before SETENA (accepted by SETENA itself and supported by the document provided on page 17 of the judicial file) and which undoubtedly covers many of the issues they now seek to elucidate through the amparo.
It is not possible for the Constitutional Chamber to analyze the project’s compliance based on the forestry regulations cited by the appellant, much less to become a controller of the legality of environmental permits, particularly the environmental viability (viabilidad ambiental), because a motion is pending resolution and its jurisdiction is limited to very specific cases as we have noted: the lack of attention to environmental complaints; a prerequisite that is not met in this case, as we are not faced with a case where the “Administration has not acted with due diligence to face them, on the understanding that the foregoing is not the same,” and the Constitutional Chamber cannot become a processor of complaints. Thus, having the activation of administrative remedies—the motion for nullity—been accredited, and its resolution pending, it is possible to conclude that the factual conditions that the Chamber has established for the admissibility of an amparo action in environmental matters (in addition to the evident violation of a fundamental right—which in this case is non-existent), such as the inertia of the Administration, are not met in this case, which warrants the rejection of the amparo.
It is clearly evident that what is sought through the amparo is incompatible with it, since the Constitutional Chamber, as it has well defined, CANNOT carry out extensive investigations in environmental matters, given that the amparo procedure is summary, as we develop below.
For several years, the Constitutional Chamber has been clearly defining which issues or analyses are the subject of a constitutionality review and which are matters of ordinary legality, to be heard by other instances, such as the administrative jurisdiction or the contentious-administrative jurisdiction. In a particular and special manner in environmental matters, the Chamber has been very clear in indicating, among other issues, that its jurisdiction, in addition to being residual in the terms we have indicated, cannot interfere in an exhaustive analysis, the production of evidence, a review of legal or regulatory compliance—much less contractual compliance as is sought with this amparo—since this distorts the figure of amparo and its summary procedure. Through its Judgment No. 15957, of August 27, 2019, the Chamber established, regarding the very nature of the amparo process, that it is a summary, brief, and simple procedure, incompatible with the practice of slow and complex evidentiary proceedings, by literally stating: “II.- Regarding the specific case.
As to the grievances presented, it must be noted that the purpose of the amparo action is to provide timely protection against infractions or threats to fundamental rights and freedoms, not to serve as an instrument for controlling the legality of the actions of the different Public Administrations. For that reason, the amparo process is eminently summary in nature—that is, brief and simple—and its processing is not compatible with the practice of slow and complex evidentiary proceedings, or with the need to previously examine—with a declaratory nature—whether the infra-constitutional rights that the parties cite as part of the factual context of the amparo action or the legal report, as the case may be, exist in reality. (…)” In that same case, it clearly concluded that if the plaintiff intended for a review of the parameters that supported the assessment to be carried out, this is incompatible with its functions—those of the Chamber—since it would imply analyzing technical criteria, which is a matter of ordinary legality, and thus it refers the conflict to such jurisdiction, as follows: “In this regard, it is imperative to warn that the mere disagreement they may harbor with what was decided by said authority does not constitute an aspect that should be evaluated and heard by this Constitutional Court.
The plaintiff must bear in mind that, if their intention is for this Chamber to conduct a review within the constitutional jurisdiction of the parameters and criteria that supported said assessment, the truth is that, contrary to their expectations, this Court could not determine such circumstance through the amparo action, as this implies analyzing technical criteria, incompatible with the purpose and the summary nature of the amparo, which must be discussed in the ordinary courts. Moreover, there is currently no law or act allowing the alleged assessment to be analyzed. Consequently, the plaintiff has the possibility of raising their disagreements or claims before the respondent authority itself, or in the competent jurisdictional venue, venues where they will be able, in a broad manner, to discuss the merits of the matter and assert their claims. Thus, the present action is inadmissible and its outright rejection is appropriate, in accordance with the provisions of Article 9 of the Law of Constitutional Jurisdiction, as indicated in the operative part of this resolution.” Reinforcing the summary nature of the procedure, through its Judgment 8710 of April 5, 2024, the Chamber emphasized and recalled—with erga omnes effect—that “(…) the amparo action is eminently summary in nature, such that its processing is incompatible with the undertaking of extensive or complex evidence, which rather corresponds to the ordinary jurisdiction.” It was based on such pronouncement that it ruled in that same judgment that: “(…) it is not within the purview of this Constitutional Court to verify whether the Vistas de Santa Bárbara condominium project did or did not meet the technical and legal requirements to obtain the water availability granted, nor to determine whether the aforementioned Dirección04 well can or cannot supply the water demand that the users of that condominium would require.
Nor is the analysis to corroborate whether the environmental fragility certification was adequately granted or not a proper subject for this specialized jurisdiction. Such an examination would imply the undertaking of abundant and complex evidentiary proceedings, a task that rather pertains to the ordinary legality jurisdiction and not to this specialized venue. Now, if the appellant so wishes, they may formulate the disagreements in question before the respondent authorities themselves or in the ordinary jurisdictional venue. Ergo, the action is dismissed concerning this grievance (…)” In that same vein, and precisely regarding an environmental viability—similar to the case at hand where the development and also the environmental viability granted are precisely being challenged despite being under review due to the motion filed by the appellant in the administrative jurisdiction—the Constitutional Chamber, through its Resolution 7718 of March 14, 2025, held that such review falls under the purview of the ordinary jurisdiction, as the amparo process is extremely summary and such reviews exceed the powers granted to this Chamber.
Thus, in the aforementioned judgment, it ruled: “In addition to the foregoing, regarding the appellant's disagreement with the environmental viability granted, it must be pointed out that, in questioning the environmental viability granted by SETENA, this Chamber has resolved that it is not its responsibility to examine whether the granting of environmental viability to a project meets or does not meet the technical and legal requirements. For that reason, in judgment No. 2019-011203 of 9:30 a.m. on June 21, 2019—a criterion reiterated in judgment No. 2024-32334 of 9:20 a.m. on November 1, 2024—it concluded the following: 'From reading the filing brief, the appellant alleged a series of supposed irregularities by the National Environmental Technical Secretariat and the ACOPAC of SINAC, specifically regarding the granting of the environmental viability and a report, respectively. However, it is pertinent to point out to the plaintiff that amparo proceedings have an extremely summary nature and determining, for this specific case, whether the granting of environmental viability had to comply with the same requirements as in the year 2002 for a similar project, or whether there were a series of irregularities in its issuance, may be grievances discussed before the Administration itself or, failing that, before the contentious-administrative jurisdiction, where they will have the evidentiary possibility to discuss all the grievances intended here on their merits.
The same fate applies to the alleged irregularities in an ACOPAC report, where the plaintiff alleges a change in its stance, in order to favor viability in 2017 for the “V.I.” project. Consequently, the action must be dismissed regarding these aspects' (the emphasis is not in the original).” Complementing the above is the Judgment of that same Chamber where it expressly rules that the analysis of compliance with requirements is a matter of legality, its knowledge corresponding to the ordinary jurisdiction, as follows: “these are questions of legality, it being for the ordinary jurisdiction to determine whether indeed such constructions were made without meeting requirements or do not 'harmonize' with the environment.” (Resolution No. 22606 of September 28, 2022).
Another additional element to assess, and one on which the Constitutional Chamber has been emphatic, is precisely that discussions about compliance with legal obligations and duties are a matter of legality and not of constitutionality, as also occurs when the Administration intervenes within a procedure and issues its acts, since the knowledge thereof is outside the constitutional jurisdiction, making it evident that all those analyses that require an assessment through a plenary procedure can only be analyzed in the ordinary jurisdiction and not in the summary amparo jurisdiction, as follows: “As a consequence of the foregoing, we consider that when a public entity or body has intervened, in various ways, or has issued administrative acts in relation to an environmental matter, its knowledge and oversight correspond to the contentious-administrative jurisdiction. It is precisely the verification of the existence of that administrative intervention that determines that the matter falls under the competence of the legality jurisdiction.
Under this understanding, this Court will verify, in relation to the grievances formulated, whether in the specific case, in relation to the environmental complaints, there was or was not a violation of the right to prompt and fulfilled justice, limiting itself solely to carrying out such examination, without making any pronouncement regarding the merits of the matter raised, as this corresponds to the ordinary jurisdiction.” (Constitutional Chamber. Judgment No. 16400 – 2022, of July 15, 2022).
As the Constitutional Chamber has developed in the resolutions transcribed in this section and the previous section, it is evident that its jurisdiction is clearly defined. On one hand, it is for the protection of constitutional rights, through a summary procedure where it is not suitable to carry out extensive or complex evidentiary proceedings, nor to review technical criteria. Its jurisdiction is neither linked to nor circumscribed by the review of legal and technical requirements of a project, nor to the review of the administration's actions for the purpose of defining compliance with the applicable legal framework for each case. Furthermore, to be able to come to the Chamber, one must demonstrate that they previously resorted to the administrative jurisdiction and demonstrate the Administration's inertia. It must be shown that there is an imminent danger against that right, and it cannot concern potential impacts that the appellant believes may occur.
The Chamber's action in environmental matters through amparo is restricted, with the Chamber being able to act only in those matters where a violation of a fundamental right is alleged, without the Administration having intervened, after prior activation of the administrative apparatus by the appellant, and when its inertia is demonstrated. Ergo, if the Administration has intervened, the discussion falls within the purview of the ordinary jurisdiction. We consider it necessary to insist on the assessment that the Constitutional Chamber CANNOT conduct regarding matters of legality in environmental matters, such as the review of technical criteria, regulatory compliance, legal analysis to determine if a contract is being met, if a master plan is being met, or whether one regulation should prevail over another for a specific case. All of these form part of the body of ordinary legality and are within the purview of the administrative jurisdiction or the contentious-administrative jurisdiction.
Therefore, what the appellant seeks with the amparo is precisely to initiate an ordinary legality proceeding, since their claims, as noted in the initial sections, concern the conduct of the ICT, the scope of the concession, the analysis of the environmental viability, the determination of the existence of forest cover (bosque) or not, the scope of the applicable legislation, and the alleged prevalence of the Ley Forestal, not to mention the alleged breaches of the Master Plan and the concession; elements that, without a doubt, to be elucidated require an exhaustive analysis, the production of technical evidence, expert evidence, and potentially testimonial evidence, which obviously exceeds the scope of a summary amparo process and allows the clear conclusion that all of this must be aired before the ordinary jurisdiction.
In addition to what has already been indicated, and in view of the fact that the appellant makes clear statements regarding alleged breaches of the concession or prevalence of forestry regulations, in addition to what has already been mentioned about the existence of a matter pending resolution in the administrative jurisdiction, it is important for these purposes to show that the Chamber has classified these matters as ordinary legality and not constitutionality, thus distancing itself from hearing them, as they evidently require a detailed analysis, the production of evidence, comparison of documents, review of contracts, and review of applicable regulations, which denatures the figure of the summary amparo proceeding. Thus, in particular, in 2024, it forcefully ruled that matters related to a concession CANNOT be assessed and analyzed through an amparo action. In its judgment No. 13229, of May 17, 2024, it stated: “(…) it is worth noting that whether there was an extension of the concession term or not is an aspect of ordinary legality that this Court is not responsible for analyzing; therefore, if the plaintiff deems it appropriate, they may resort to the corresponding administrative or judicial venues to assert what is legally appropriate.
Therefore, with regard to this aspect, the present amparo is declared without merit. X.- However, without detracting from the foregoing, it is important to clarify to the appellant that this Court is not an additional instance within the administrative activity of the DGM for reviewing aspects related to public concession contracts, as this pertains to a matter of ordinary legality; therefore, if there is any disagreement with the material or formal actions of the respondent administration regarding concessions 2008 and 2716, this must be analyzed in the appropriate administrative or legality venue, as it bears repeating, this Chamber is not a controller of the legality of the actions of the respondent body, unless actions or omissions of this body affect the essential core of fundamental rights.” The Chamber's position is clear: in matters of concession management or analysis of concession contracts, its jurisdiction is non-existent, because the Chamber, as it rightly emphasizes, is NOT an additional instance in the administrative jurisdiction, and since these matters pertain to ordinary legality, it is before that venue that they must be aired and NOT through an amparo action.
By parity of reasoning, the analysis that the appellant seeks to be carried out regarding compliance with the concession, compliance with the Master Plan, must likewise be rejected because they pertain to matters of mere ordinary legality and are not within the Chamber's knowledge.
As can be observed and is easily detectable from a simple reading, what the appellant requires is for the Constitutional Chamber to proceed to analyze the project's compliance based on the Ley Forestal (the issue of environmental viability detailed above), the powers of the ICT, the development of the project, as well as compliance with the contractual conditions of the concession and compliance with the Master Plan—so much so that they emphasize the need to have that plan—; elements of analysis that require a more detailed verification of their legality, technical evidence to reach a well-founded conclusion, and an exhaustive analysis by the Constitutional Chamber; all of this contrary to its jurisdiction, which denatures the summary amparo process and seeks to turn the Chamber into a processor of environmental complaints or a reviewer of legality, since it is evident that the amparo at hand is an environmental complaint—which is also being heard by SETENA.
Even though the amparo brief filed by the appellant denotes that we are clearly dealing with an environmental complaint, this representation subsequently inserts the following table with the facts of the amparo, with the purpose of making it evident that these are matters of ordinary legality that cannot be addressed in the summary venue of the amparo action (image inserted) …”. “… As we have shown, the appellant makes a clear error in filing the amparo action, as they seek for the Chamber to exercise a control of ordinary legality proper to the contentious-administrative jurisdiction and also seek for the Chamber to become a reviewer of their environmental complaint, as well as of the execution of the concession contract, compliance with applicable legislation, the determination of the existence or not of forest cover—substituting the powers of the competent instances for this purpose. They likewise seek for that Chamber to analyze regulatory compliance for the granting of permits, the review of the Master Plan and its compliance, analysis of the scope of the applicable regulations and of the project itself, as well as the determination of a supposed impact on the forest; claims that are far from being within the Chamber's knowledge by virtue of its nature and what its analysis entails, which is the production of evidence, holding of hearings, regulatory compliance analysis, contractual analysis, among others; actions that are within the purview of the administrative jurisdiction or the contentious-administrative jurisdiction, as we have expressly indicated.
None of the facts are linked to the violation of fundamental rights. Therefore, the amparo action of the Asociación Confraternidad Guanacasteca seeks for that Chamber to carry out an ordinary legality analysis, which is not proper for an amparo action, much less the subject of analysis through a summary process such as the one initiated by the action under analysis.”
ISSUE - VALIDITY OF THE LEY FORESTAL IN PAPAGAYO We request that it be declared that all laws in force in Costa Rica apply in the territory of the Papagayo Tourist Project, except for expressly indicated exceptions. That means equality of rights and obligations for all. In the case of this amparo, there is no mention whatsoever that excludes the Papagayo Project from complying with Ley Forestal No. 7575. This is one of the fundamental issues that the magistrates must resolve in this amparo. The company Enjoy states in its brief: 'The discussion regarding the applicability or non-applicability of the Ley Forestal and its compliance is an issue that exceeds the jurisdiction of this Chamber and that, furthermore, is being challenged in the administrative jurisdiction before SETENA, which inevitably implies its rejection.' There are two elements to differentiate here: ONE.- The validity or not of the Ley Forestal in the area of the Papagayo Project.
TWO.- Its compliance and application in the administrative processing at SETENA, at the ICT, at the Municipalities. Point number one is clearly within the jurisdiction of this CONSTITUTIONAL CHAMBER. Not of another lower-ranking court, nor of SETENA. The resolution of this amparo that the Chamber issues, regarding the validity and necessary application of the Ley Forestal within the Papagayo Project, will also serve as a guide for the ICT in future concessions and development plans. Later, it will be the technical entities SINAC-MINAE, SETENA, who will determine whether the concession area – LOT 1 awarded under concession is forest cover or not. We reiterate that this AMPARO comes to defend the Papagayo Tourist Project from deviations from its natural objectives of sustainable and ecological tourism, legally attached to its constituent law. We want to respect and preserve Costa Rica's image as a GREEN DESTINATION for tourism.
We want legal certainty for the neighbors, for the visitors, and for current and future investors. The amparo is about the ICT – Proyecto Golfo Papagayo and its acts of not protecting the Natural Heritage of the STATE, failing to comply with what is mandated in Ley Forestal No. 7575 of 1995.
We have very pertinent jurisprudence for this amparo. The Case of Refugio de Iguanita. Many central aspects coincide: it is within the Papagayo Project. It is against the ICT. It deals with the Natural Heritage of the State, according to Ley Forestal 7575. It speaks of forest ecosystems. 'Judgment No. 15758-0007-CO of the Constitutional Chamber underscores that wetlands, mangroves, and forest ecosystems included in state assets form part of the Natural Heritage of the State, and require technical protection even in the initial stages of planning. In Iguanita, the installation of elevated culverts was ordered to avoid alterations to the water flow and biological processes. Well then, in Papagayo, although the environmental viability is not yet being processed, the forests that the ICT manages on state lands are already under the natural heritage regime. Any future planning, study, or intervention must have authorization and precautionary technical measures dictated by SINAC, in accordance with the preventive criterion that the Chamber demanded in Iguanita.' (The judgment is from 1993 or 1994) The Constitutional Chamber is entirely clear in that resolution, which must be applied to the current case of Dirección05.
Why is it applicable jurisprudence in this case? 1. Legal Equivalence In both cases (Iguanita and Papagayo), these are public domain assets within the Natural Heritage of the State managed by the State—whether SINAC or ICT. The Chamber establishes that there is no exception for tourist projects in terms of forest protection. 2. Principles of prevention and legal ecology The jurisprudence emphasizes the precautionary principle, the in dubio pro natura principle, and the requirement for rigorous technical evaluations prior to any physical intervention, even at a stage prior to environmental viability. 3. Right to public access and equitable use In Iguanita, it was clear that the possibility of public use and conservation must be maintained, without private or state entities usurping rights over those lands. Legal Arguments • The Chamber has defined that areas of the Natural Heritage of the State (such as wetlands, mangroves, or forests) acquire a regime of public and imprescriptible dominion, with exclusive technical management by SINAC/MINAE, without special prerogatives to promote tourist projects. • In Iguanita, preventive technical measures (such as an elevated crossing) were required, even before constructive execution, to avoid impacts on fragile ecosystems. • The Court expressly rejected that state or private entities could dilute environmental protection by alleging economic or tourism development purposes—there is no exemption from regulatory compliance.
We believe that, in the Papagayo Tourist Project, the precedent of Gandoca Manzanillo should also be applied. To determine areas covered with forest cover, in order to protect them. SINAC should be ordered to conduct a study and impose preventive measures (such as delimiting, classifying, and preventing occupation) to protect the forests. The duty of prevention operates from preliminary stages. If this had been done, we would not be in this dispute, as civil society, defending the Natural Heritage of the STATE. A function that is the purview and obligation of the executive branch entities (MINAE, SINAC, ACT, SETENA, ICT). Law 6758 cannot be considered an exemption from the duty of environmental protection: the ICT must respect the public domain and the technical classification of forest, mangrove, and streams.
ISSUE - LAND USE This amparo is also about NON-TOURIST uses in the Golfo de Papagayo Tourist Project that, according to Law 6754, is only for tourism purposes. It is an illegal land-use change (cambio de uso del suelo). The LEY ORGÁNICA DEL INSTITUTO COSTARRICENSE DE TURISMO – ICT has a definition that must be applied. It is the ICT Law.
Article 38.- For the purposes of this law, a tourist is understood to be any foreigner not resident in Costa Rica, who visits the country for a period of no more than six months, for purposes of distraction, rest, health, or other lawful purposes, provided they are not for obtaining work or employment, or carrying out commercial activities in the national territory. That is: when the foreign traveler comes to work, to reside in the country for more than 6 months, or to engage in "commercial activities" such as purchasing lots or properties, THEY ARE NOT A TOURIST. In this amparo we are only questioning the concession contract signed by the ICT, concession property 2168- Z-000, cadastral map 5-1186670-2007, which contemplates the subdivision (lotificación) of 90 Villas of between 1,000 and 1,500 m2 each and other residential works. The company in its submission does not deny the existence and veracity of the official ICT document, which we provided as proof that they requested authorization for that subdivision.
Our assertion that the term of the concession granted by the original contract runs from August 2005 and is for 20 years and its expiration is August 3, 2025, that is, yesterday Sunday. It is a parameter of the non-compliances during the contractual term and a sign of the peculiar handling of the contract. And of changes and privileges obtained by the company a posteriori. It is an illustrative detail of the public-private contracting scenario by ICT tender. Here defended in the ICT's submission. For us, a SUBDIVISION (LOTIFICACIÓN) is REAL ESTATE USE. Whoever buys a lot does so because they intend to build a house or business. And it departs from the definition of tourist in the ICT Law. Access to the Bahía Papagayo web pages of the company Enjoy Hotels & Resort S.A., where properties for sale located in that concessioned lot 1 are offered, on public lands administered by the ICT, among them lots for private constructions by any person in the world who pays the price.
Bahía Papagayo - Bahía Papagayo. The concessionaire company is promoting the purchase and sale of properties within its concession area. It does not take into account that it is state land, concessioned. We reiterate our request that this point be declared WITH MERIT (CON LUGAR), to not allow residential use and real estate businesses on STATE lands. And to approve what was requested in our initial filing: 4.- Order the ICT to deny permits for the sale of lots for private villas on STATE-owned land in the Bahía Papagayo Project. That only activities permitted by law may be carried out on that lot. 5.- Order the respondents here to abide in the future by approving only works and projects contemplated in the current Master Plan for said project. On the topic of the validity of the Forest Law (Ley Forestal), it is appropriate to declare this amparo WITH MERIT (CON LUGAR) on this point and grant what was requested in our initial filing: 3.- That the judgment order the protection of the forest areas, Natural Heritage of the State (Patrimonio Natural del Estado), of concession 2168- Z- 000, cadastral map 5-1186670-2007 …".
Clearly, the essence of the regulation tends, in a general manner, toward the protection of forests and the total prohibition of logging on State lands and in conservation areas. For its part, Articles 1 and 2 of Law No. 6758, in conjunction with the rest of the regulations of the special sectorial Legal System of the Polo Turístico Golfo de Papagayo, define the establishment of a special and specific action framework for the Polo Turístico Golfo de Papagayo. With said regulations, the State's intention to plan the development of the area in a coercive and binding manner for the individual is clearly evidenced. The law states that in the area, the project will ONLY be developed and will be developed in accordance with the Master Plan approved by the ICT and in accordance with the technical standards that said Institute issues to that effect, so there are no legally admissible alternatives other than those established by the Master Plan.
In this regard, the Office of the Attorney General of the Republic (PGR) has stated: “Consequently, that binding nature of the Plan prevents it from being considered a simple technical guideline. On the contrary, it is easy to conclude that the Master Plan, by exhaustively determining the works that may be carried out within the project area, does so not as a simple recommendation or guideline, but with the legal force proper to a coercive and mandatory provision; that is, a norm. The examination of the legislative record of Law No. 6758, at folios 31 and 103, leaves no doubt in this regard: the legislator's intention was that the Master Plan have a preponderant role, of a normative nature, in the execution of the work, and that the project area be kept reserved for the exclusive development of tourist activities.” (C-181-94 of November 23, 1994). The PGR adds in the same recently referenced pronouncement: “In this regard, we have that the Master Plan constitutes an act of regulatory value.
Therefore, it is necessary to examine which body within the ICT has been assigned by the legal system the competence to issue regulations. Thus, Article 26 of Law No. 1917 provides, as relevant: ‘The Board of Directors shall have the following powers: (....). b) To issue, promulgate, amend, and interpret the internal regulations necessary for the better development of the Institute's purposes; and to submit to the Executive Branch those regulations that require its approval. For the regulations and amendments issued by the Board of Directors to be valid, they must be published in the Official Gazette.’ It follows that, if it corresponds to the Entity's Board of Directors to regulate the internal activity of the entity and of those administered in a special subjection relationship with the Institute, it must be concluded that this competence extends to the modification and repeal of the issued norms, even when this power has not been specifically established.
(…). Therefore, it must be concluded that the Board of Directors has express competence to intervene directly in matters relating to the Golfo de Papagayo Project, regulating it originally through the issuance of the Master Plan, and by means of amendments to the Plan.” The aforementioned specialty has in no way been diminished by the entry into force of the Forest Law (Ley Forestal), so that is the criterion that must prevail in the specific case, and it is that if normative antinomies can be resolved through various different hermeneutic criteria: namely the hierarchical (not applicable here because we are dealing, at the core, with legal-rank norms), the specialty criterion, and the chronological criterion. The chronological criterion does not imply that every subsequent law repeals the previous one, as this is valid if both norms are general, but not when a specialty criterion is at stake, as occurs in the matter developed here.
The specialty criterion is a relational criterion, in the sense that no norm is special by itself, but rather is special in comparison with another. The “special” norm constitutes an exception regarding what is provided by another of more general scope, which prevents the factual situation regulated by the norm from being included in the broader scope of the general law.” (DIEZ-PICAZO: La derogación de las leyes, Civitas, Madrid, 1990, p. 345). Now, integrating what was expressed in the previous sections of this study, we highlight, as was mentioned before, that since 1975 with Law 5847, the legislator made clear its will that the Polo Turístico Golfo de Papagayo be governed by a special law, by stipulating in its Article 3 that the project “shall be carried out by the Costa Rican State, in accordance with THE SPECIAL LAW that the Legislative Assembly must enact for that purpose.” Note that the legislator specified that the law that was to regulate the destination of the lands that make up the Polo Turístico was to be of a special nature.
This means that only by special law can the purpose of the lands located in said Polo be changed. The foregoing allows us to determine with certainty the prevalence of the norms comprised in the Law for the Tourist Development of Bahía Culebra No. 6370 of July 31, 1979, and the Regulatory Law for the Development and Execution of the Golfo de Papagayo Tourist Project No. 6758 of June 4, 1982, together with the rest of the special sectorial Legal System of the Polo Turístico Golfo de Papagayo; given that, for its part, Forest Law No. 7575 of April 16, 1996, has, in contrast, a general character that yields to the specialty applicable to the Polo Turístico Golfo de Papagayo, because the content of the sectorial Legal System highlighted here is directed at a specific area or location, the Polo Turístico Golfo de Papagayo. The prevalence of special norms over general ones constitutes one of the general principles regarding the application of norms.
In his Tratado de las Personas, the scholar Brenes Córdoba explains the following: “General laws do not repeal special ones, except when they expressly declare so, or when the intention to render the special one without effect clearly results from the object or spirit of the general law that is enacted. Apart from this, the rule observed concerning the tacit repeal of special laws is that it is only produced by other, also special, laws that appeared later on the same matter, insofar as no possible conciliation exists between them. Conversely, general laws are understood to be repealed by special ones, in that part or in those points in which the latter later established provisions relative to a particular matter comprised in the former. This is the meaning of the principle: ‘In law, the genus is repealed by the species.’” Tratado de las Personas, Librería e Imprenta Lehmann, 1933, p. 56 (Highlighting not from the original).
Thus, only when the legal consequences are mutually exclusive does the logical relationship of specialty necessarily lead to the displacement of the more general norm, since, otherwise, the more special norm would have no field of application. (K. LARENZ: Metodología de la Ciencia del Derecho, Ariel, Barcelona, 1980, p. 261). The specialty of the norm and its exceptional character thus cause a restrictive application of the general norm, which yields to the benefit of the application of the special precept. For all the foregoing, we consider that it does not correspond to the authorities defined in the Forest Law to grant licenses for tourist developments within the Polo Turístico Golfo de Papagayo, considering that a forest appears in its area that could be considered State Natural Heritage and be declared as such, given the fact that the Polo Turístico Golfo de Papagayo is also a State public domain asset, only that the legislator conferred upon it a specific purpose, which for that reason must prevail.
In the same line, it would also be appropriate to add and understand that a different interpretation would entail an impact on the principle of legitimate expectations (principio de confianza legítima), since the aforementioned dynamic, which is sustained based on the criterion of specialty of the norm (of the special sectorial Legal System of the Polo Turístico Golfo de Papagayo), has also been the one in force in the factual historical development, which entails for the entire Polo Turístico Golfo de Papagayo project and its concessionaires, the certainty and conviction about the regime applicable in their case. In this regard, on the principle of protection of legitimate expectations, the Costa Rican scholar Dr. Ernesto Jinesta Lobo, in his work Tratado de Derecho Administrativo, Volume I, Editorial Jurídica Diké, pages 181-182, explains that as established by the Spanish Supreme Court, in its judgment of February 1, 1990, this principle: “… must be applied, not only when any type of psychological conviction is produced in the benefited individual, but rather when it is based on external signs produced by the Administration sufficiently conclusive to reasonably induce him to trust in the legality of the administrative action, (…).
The principle of legitimate expectations, together with that of good faith in legal-administrative relations, derives from the principle of legal certainty, that is, certainty in relations with public authorities, the administered knowing what to expect from them, who must avoid objectively confusing situations and maintain legal situations, even if they are not absolutely in conformity with the legal system.”.
Therefore, any intervention that involves logging or land-use change on those lands requires an analysis of national convenience, under strict parameters of social benefit exceeding the socio-environmental cost, measured with valid technical instruments, which has been, in all cases I have reviewed at the Ministry of Environment and Energy, the application of the Cost-Benefit Analysis, which determines the social welfare or otherwise of the project in question. However, the ICT has maintained that its special regime (Ley 6370/1979 and Ley 6758/1982) allows concessions without strict application of Ley 7575. Added to this is that, in 2005, the State itself did grant the declaration of national convenience, through Decreto Ejecutivo No. 33132-MP-T of February 9, 2005, without the support of the Ministry of Environment and Energy, the environmental governing body. And with that, recognizing the validity and necessity of national convenience as indicated by the Ley Forestal (although the substantive study (cost-benefit analysis) demonstrating its viability was not presented); but in 2025, 20 years later, paradoxically, the Legal Department of MINAE recommends rejecting nullity claims against environmental permits, defending a supposed special regime that would prevail over the Ley Forestal.
This action contradicts the constitutional principle of prohibition of administrative arbitrariness (Art. 11 CP) and the principle of environmental non-regression. In any case, changes to the original master plan and from the concession figure to sub-concessions affect the initial 2025 study; therefore, if a study had existed, the subsequent situation generated changes in the manner of its use and, consequently, in the impact on the forest and ecosystems, caused by regulatory changes, such as the case of Decreto Nº 44448 MP-TUR.
1. Special regime vs. Ley Forestal No. 7575 The special Papagayo regime (1979/1982) was designed before the 1996 Ley Forestal, and allowed concessions of public domain lands for tourism purposes. But subsequent normative development—Constitution (amended Art. 50), Ley forestal 7575, Ley Orgánica del Ambiente, jurisprudence of Sala IV—raised environmental protection standards.
| Aspect | Papagayo Special Regime (1979/82) | Ley Forestal No. 7575 (1996) |
|---|---|---|
| Legal Nature | Concessions over public domain assets (beaches and state forests) | Natural Heritage of the State (Arts. 13, 19, 33, 34) |
| Permitted Use | Tourism development and infrastructure for tourism purposes | Prohibition of land-use change and logging, except for justified national convenience |
| Procedure | Internal ICT regulations, without effective public consultation, moving from concessions to sub-concessions for residential purposes | Socio-environmental cost-benefit analysis, SETENA, public participation |
| Approach | Partial privatization via concession/sub-concessions | Precautionary principle, comprehensive forest protection |
That is, applying exclusively the Ley de Papagayo, ignoring Ley Forestal 7575, implies a regression in the levels of environmental protection achieved by the Costa Rican legal system. This contravenes the principle of prevention recognized in international doctrine (IACHR, Advisory Opinion 23/17) and adopted in the jurisprudence of the Constitutional Chamber (Voto Crucitas, 2008-17089 and Administrative Dispute Resolution No. 04399 - 2010).
2. National convenience vs. public utility
| Concept | National convenience (Ley 7575) | Public utility (Ley 6370 Papagayo) |
|---|---|---|
| Definition | Project with social benefits greater than the socio-environmental cost, with rigorous cost-benefit analysis | Legislative declaration to expropriate or dispose of assets for a tourism project |
| Procedure | Environmental viability, forest inventory, public consultation, reasoned Executive Decree granting national convenience based on the cost-benefit analysis study | Legal declaration, without requiring a comparative environmental analysis |
| Scope | Applies to all projects in state or private forests where land-use change from forest to another economic activity occurs. | Restricted to the Papagayo geographic area |
Here it is important to consider that public utility is limited to justifying the expropriations carried out by the project; national convenience is a higher standard that protects the forest, and therefore, ecosystems and nature. Attempting to substitute the requirement of national convenience with the public utility of the Ley de Papagayo constitutes a legal distortion that degrades environmental protection.
3. Problems of successive concessions and change of use from the original concession figure granted by the law.
The current scheme implemented by the ICT allows concessions granted for tourism purposes to be transformed into residential real estate developments (“from tourism to housing”), in open contradiction with the initial objective of tourism promotion and to the detriment of the environment. This practice implies a covert privatization of the State's natural heritage, in violation of the inalienable, imprescriptible, and public-use character of public domain assets (Art. 261 Civil Code, Art. 50 Political Constitution (CP), Procuraduría General de la República, opinion 162 of 27 05 2004.)
1. Precautionary principle. The IACHR (Advisory Opinion 23/17) indicates that, in the face of scientific uncertainty, environmental protection must prevail. In this case, the ICT reports do not present a rigorous technical analysis demonstrating the social benefit of the project. Through official letter AL-CCS-206-2025, the ICT was consulted, among other inquiries: What are the tangible economic and social benefits of the PPTGP in the immediate influence zone, Guanacaste, and Costa Rica over the last 30 years, and how much are they estimated at? The response used publications from Observador.CR and general descriptions of infrastructure, the 2024 Social Progress Index that the ICT applies in tourism development zones, and basic human needs. The results are not specific or punctual but general and a product of institutional frameworks. At no time is a calculation made using valid instruments that could undoubtedly certify for the Polo Turístico Golfo de Papagayo Project economic and social results directly produced by the project; only mere general references are indicated. Therefore, without adequate instruments, the national convenience exception cannot be applied or granted.
2. Principle of environmental non-regression. Recognized in comparative jurisprudence (France Decision No. 2016-737 DC) and internalized in Costa Rica via the Constitutional Chamber (judgment No. 2021-17245), it implies that no administrative norm or interpretation can diminish the environmental protection achieved. Ignoring Ley 7575 for Papagayo is a setback for the environment and a contradiction in the legislation.
3. Constitutional and human rights. Article 50 of the Political Constitution guarantees the right to a healthy and ecologically balanced environment. The Constitutional Chamber has reiterated that this right is fundamental and justiciable. At the international level, the IACHR (Advisory Opinion 23/17) recognized the right to a healthy environment as autonomous and enforceable. The Polo Turístico Golfo de Papagayo Project, by privileging private interests over public domain assets, injures these collective rights.
The cost-benefit analysis (CBA) is based on welfare theory, which allows weighing both the benefits and costs of economic activities or policy actions in comparable terms, generating a monetary value to assess their net contribution to collective well-being. CBA is not only an economic tool but a key instrument of the social sciences to ensure that public decisions, such as those required by Ley Forestal No. 7575, can respond to the general interest, integrating social, environmental, and spatial dimensions. Its use in public management allows for an objective evaluation of which measures most effectively promote intergenerational equity, social justice, and equal access to the natural heritage.
Ley Forestal 7575 requires that, in order to consider an intervention in state forests as “national convenience,” the social benefits must clearly outweigh the socio-environmental costs, and this must be ratified through suitable instruments; in this case, the instrument used is the CBA. Of course, it must be a comprehensive and rigorous analysis, including social, environmental, and financial information, which may come from additional studies carried out on the project or from empirical evidence. During my experience of more than 10 years reviewing national convenience declarations, that has been the instrument considered appropriate. However, as part of a procedure carried out for its validation, a document was requested that had to contain the following:
Of course, it is important to clarify that deep and technical studies by different professionals are required in order to have the adequate information to estimate some externalities.
Additionally, according to Article 6 of the Ley Orgánica del Ambiente No. 7554 and Article 361 of the Ley General de la Administración Pública No. 6227, the interested party must publish an edict, which will be facilitated by the Legal Directorate of MINAE, for the purpose of submitting the cited project to public information for a period of 10 days, except when reasons of public interest or duly recorded urgency in the preliminary draft oppose this, an aspect that must be justified within the administrative file. If there are no observations in the previous stage or it does not apply, the minister signs the Decree declaring national convenience. The Legal department of MINAE communicates it to the party so that they may withdraw the document. The party interested in the project will be responsible for the procedure and publication costs.
The supposed economic benefit of the Papagayo Project has not been demonstrated with a cost-benefit analysis. No study has been presented, at least not one known to me. It is limited solely to journalistic publications and general data, without specific calculations or recognized methodologies. This fails to comply with the legal requirement of Ley forestal 7575 and places it at an advantage compared to other economic and development activities carried out in the country.
1. In 2005, the State did require national convenience for projects in Papagayo, recognizing the applicability of Ley 7575. 2. In 2025, the Legal Department of MINAE recommends rejecting nullity claims against environmental permits, defending a special regime that ignores Ley Forestal 7575. 3. This oscillation violates legal certainty, the principle of prohibition of arbitrariness, and, above all, the principle of environmental non-regression.
WE PROVIDE A NEW LEGAL CRITERION ON THE CASE Recently, OPINIÓN CONSULTIVA OC-32/25 of the INTER-AMERICAN COURT OF HUMAN RIGHTS has been published, composed of Nancy Hernández López, President; Rodrigo Mudrovitsch, Vice President; Humberto A. Sierra Porto, Judge; Eduardo Ferrer Mac-Gregor Poisot, Judge; Ricardo C. Pérez Manrique, Judge; Verónica Gómez, Judge, and Patricia Pérez Goldberg, Judge; Pablo Saavedra Alessandri, Secretary, and Gabriela Pacheco Arias, Deputy Secretary.
VI THE OBLIGATIONS OF STATES IN THE CONTEXT OF THE CLIMATE EMERGENCY 217. The purpose of this Advisory Opinion is to determine the obligations arising from the American Convention and the Protocol of San Salvador in the context of the climate emergency and the scope thereof.
For the reasons set forth, in interpretation of Articles 1.1, 2, 4.1, 5.1, 8, 11.2, 13, 17.1, 19, 21, 22, 23, 25, and 26 of the American Convention on Human Rights; 1, 2, 3, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, Protocol of San Salvador; and Articles I, II, IV, V, VI, VII, VIII, XI, XII, XIII, XIV, XVI, XVIII, XX, XXIII, and XXVII of the American Declaration of the Rights and Duties of Man:
THE COURT DECIDES 1. It is competent to issue this Advisory Opinion, in the terms of paragraphs 14 to 23.
AND IS OF THE OPINION 1. According to the best available science, the current situation constitutes a climate emergency due to the accelerated increase in global temperature, resulting from various anthropogenic activities, produced unequally by the States of the international community, which incrementally affect and seriously threaten humanity and, especially, the most vulnerable persons. This climate emergency can only be adequately addressed through urgent and effective mitigation, adaptation, and advancement towards sustainable development actions, articulated with a human rights perspective, and under the lens of resilience, in the terms of paragraphs 183 and 205 to 216. 2. By virtue of the general obligation to respect rights, States have the obligations indicated in paragraphs 219 to 223. 3. By virtue of the general obligation to guarantee rights, States have the obligation to act in accordance with a standard of heightened due diligence to counteract the human causes of climate change and protect persons under their jurisdiction from climate impacts, particularly those in a situation of greater vulnerability, in the terms of paragraphs 225 to 237. 4.
By virtue of the general obligation to ensure the progressive development of economic, social, cultural, and environmental rights, States must allocate the maximum available resources to protect persons and groups who, due to being in situations of vulnerability, are exposed to the most severe impacts of climate change, in the terms of paragraphs 238 to 243. 5. By virtue of the general obligation to adopt domestic legal provisions, States must integrate into their domestic legal framework the necessary regulation to ensure the respect, guarantee, and progressive development of human rights in the context of the climate emergency, in the terms of paragraphs 244 to 246. 6. By virtue of the obligation of cooperation, States are obligated to cooperate in good faith to advance the respect, guarantee, and progressive development of human rights threatened or affected by the climate emergency, in the terms of paragraphs 247 to 265. 7.
The recognition of Nature and its components as subjects of rights constitutes a normative development that reinforces the protection of the integrity and functionality of ecosystems in the long term, providing effective legal tools in the face of the triple planetary crisis and facilitating the prevention of existential damages before they become irreversible. This conception represents a contemporary manifestation of the principle of interdependence between human rights and the environment, and reflects a growing international trend aimed at strengthening the protection of ecological systems against present and future threats, in accordance with paragraphs 279 to 286. 8. By virtue of the principle of effectiveness, the peremptory prohibition of anthropogenic conduct that can irreversibly affect the interdependence and vital balance of the common ecosystem that makes the life of species possible constitutes a norm of ius cogens, in accordance with paragraphs 287 to 294. 9.
The right to a healthy climate, understood as a component of the right to a healthy environment, protects, in its collective dimension, present and future humanity, as well as Nature, in the terms of paragraphs 298 to 316. 10. By virtue of the right to a healthy climate, States must protect the global climate system and prevent human rights violations derived from its alteration. Therefore, they must mitigate GHG emissions, which entails (i) adopting regulations on the matter that define a mitigation goal and a human rights-based mitigation strategy, as well as regulating the behavior of companies, in the terms of paragraphs 323 to 351; (ii) adopting supervision and oversight measures regarding mitigation, in the terms of paragraphs 352 to 357; and (iii) determining the climate impact of projects and activities when appropriate, in the terms of paragraphs 358 to 363. 11. By virtue of the right to a healthy environment, States must (i) protect nature and its components from the impacts of climate change, and (ii) establish a strategy aimed at advancing towards sustainable development, in the terms of paragraphs 364 to 376. 12.
By virtue of the rights to life, personal integrity, health, private and family life, property and housing, freedom of residence and movement, water and food, work and social security, culture and education, as well as all other substantive rights threatened by climate impacts, States have the immediately enforceable obligation to define and update, in accordance with the highest possible ambition, their national adaptation goal and plan, in the terms of paragraphs 384 to 391, as well as the duty to act with heightened due diligence in compliance with the specific duties established in paragraphs 400 to 457. 13. By virtue of the democratic principle, States must strengthen the Democratic Rule of Law as an essential framework for protecting human rights, the effectiveness of public action, and open and inclusive citizen participation, further ensuring the full exercise of procedural rights, in the terms of paragraphs 460 to 469. 14.
By virtue of the human right to science and the recognition of local, traditional, and indigenous knowledge, protected by Articles 26 of the Convention and 14.2 of the Protocol of San Salvador, all persons have the right to access the benefits of measures based on the best available science and the recognition of local, traditional, or indigenous knowledge, in the terms of paragraphs 471 to 487. 15. By virtue of the right of access to information, States have obligations regarding (i) the production of climate information, in the terms of paragraphs 501 to 518; (ii) the dissemination of information relevant to the protection of human rights in the face of climate change, in the terms of paragraphs 519 to 523; and (iii) adopting measures against disinformation, in the terms of paragraphs 524 to 527. 16. By virtue of the right to political participation, States must guarantee processes that ensure the meaningful participation of persons under their jurisdiction in decision-making and policies relating to climate change, as well as guarantee the prior consultation of indigenous and tribal peoples, when applicable, in the terms of paragraphs 530 to 539. 17.
By virtue of the right of access to justice, States must ensure central aspects regarding (i) provision of sufficient means for the administration of justice in this context; (ii) application of the pro actione principle; (iii) speed and reasonable time in judicial proceedings; (iv) adequate provisions regarding standing; (v) evidence; and (vi) reparation, as well as (vii) application of inter-American standards; in the terms of paragraphs 542 to 560. 18. By virtue of the right to defend human rights, States have a special duty to protect environmental defenders, which translates into concrete obligations, among other aspects, to protect them, investigate and, where appropriate, punish the attacks, threats, or intimidation they suffer, and to counteract the “criminalization” of environmental defense, in the terms of paragraphs 566 to 567, and 575 to 587. 19. States must adopt measures aimed at addressing how the climate emergency exacerbates inequality and differentially impacts persons in situations of multidimensional poverty, in the terms of paragraphs 626 and 627. 20.
States have specific obligations towards situations of special vulnerability such as those faced by (i) children, and (ii) indigenous, tribal, Afro-descendant peoples, and peasant and fishing communities; (iii) persons who suffer differentiated impacts in the context of climate disasters, in the terms of paragraphs 599 to 602, and 604; 606 to 613, and 614 to 618. Likewise, States must adopt measures to protect persons who do not belong to traditionally protected categories but who are in a situation of vulnerability for dynamic or contextual reasons, in the terms of paragraphs 628 and 629.
Drafted in Spanish in San Jose, Costa Rica, on May 29, 2025.
We take the liberty of transcribing the paragraphs relevant to the case.
B.1.2. The protection of Nature as a subject of rights
This instrument also states that "nature shall be respected and its essential processes shall not be disturbed." For its part, the Convention on Biological Diversity recognizes in its preamble the "intrinsic value of biological diversity and the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components." In development of this Convention, the Kunming-Montreal Global Biodiversity Framework establishes that "both nature and nature's contributions to people are essential for human existence and good quality of life." Likewise, the Court highlights that the Agreement relating to the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond National Jurisdiction has as one of its purposes to ensure "the good management of the ocean in areas beyond national jurisdiction, on behalf of present and future generations by conserving the inherent value of biological diversity." 285.
This Court takes note of the adoption by the United Nations General Assembly of fifteen resolutions and thirteen reports evidencing the growing recognition of Earth jurisprudence and the rights of Nature worldwide. Complementarily, in the Pact for the Future adopted by the member states of the United Nations in 2024, it is declared "the urgent need for a fundamental change in their approach in order to achieve a world where humanity lives in harmony with nature." 286.- Finally, the Court observes a growing normative and jurisprudential trend that recognizes Nature as a subject of rights. This trend is reflected in judicial decisions at the regional and global level, as well as in the domestic legal systems of different countries in the American continent, such as Canada, Ecuador, in some states of the United States of America, Bolivia, Brazil, Mexico, Panama, and Peru. Our summary Manifesto We believe that this recognition of Nature as a subject of rights is important to take into account when issuing a judgment in this case.
This amparo is a case of deciding whether the business and economic interests of some entrepreneurs are above the right to quality of life, public health, forests, nature, biodiversity, and even other laws in force in Costa Rica …".
13- By resolution at 08:50 hours on January 20, 2026, it was ordered to expand the parties to this proceeding.
Phase Lot Cadastral Plan Construction Footprint (m²) Property Area (m²) Percentage (%) I Lot 1 5-1186670-2007 130,572 436,564 30% II Lot 4 5-1274126-2008 68,350.04 309,064.25 22% III Lot 3 5-1155787-2007 32,926.32 124,827.92 26.4% IV Lot 5 5-1155786-2007 58,978.00 204,165.91 29% It is important to emphasize that the project is developed on 4 cadastral plans whose cover is described according to the Geospatial analysis carried out by this Secretariat. During the file analysis process, as part of the information to better resolve, the developer presented: • Declaration of national convenience (Declaración de conveniencia nacional), the development and execution of the Golfo de Papagayo Tourism Project, according to Executive Decree No. 33132. • Official Communication PGP-292-2019 Certification POLO TURÍSTICO GOLFO PAPAGAYO. 5-002168-Z-000 with Cadastre Plan number G-1186670-2007, is: HOTEL AREA AND FLORA AND FAUNA PROTECTION AREA - COMPLEMENTARY LAND USE: RESIDENTIAL, CONDO-HOTEL AND COMMERCIAL.
The concessionaire must comply with the technical standards and guidelines established by the General Master Plan of the Project, which are: a maximum density of twenty rooms per hectare, a maximum surface coverage of 30%; a maximum building height of 14 meters from the natural ground level, build a treatment plant for wastewater, avoiding discharges into the sea, estuaries, and streams; in addition to the payment of obligations and all permits required by the laws of the country. • Official Communication PGP-293-2019 Certification POLO TURÍSTICO GOLFO PAPAGAYO. 5-002169-Z-000 with Cadastre Plan number G-1155787-2007, is: HOTEL AREA AND FLORA AND FAUNA PROTECTION AREA - COMPLEMENTARY LAND USE: RESIDENTIAL AND CONDO-HOTEL. The concessionaire must comply with the technical standards and guidelines established by the General Master Plan of the Project, which are: a maximum density of twenty rooms per hectare, a maximum surface coverage of 30%; a maximum building height of 14 meters from the natural ground level, build a treatment plant for wastewater, avoiding discharges into the sea, estuaries, and streams; in addition to the payment of obligations and all permits required by the laws of the country. • Official Communication PGP-294-2019 Certification POLO TURÍSTICO GOLFO PAPAGAYO. 5-002174-Z-000 with Cadastre Plan number G-1274126-2008, is: HOTEL, RESIDENTIAL, COMMERCIAL AREA, CAMPING AREA AND FLORA AND FAUNA PROTECTION AREA - COMPLEMENTARY LAND USE: CONDO-HOTEL.
The concessionaire must comply with the technical standards and guidelines established by the General Master Plan of the Project, which are: a maximum density of twenty rooms per hectare, a maximum surface coverage of 30%; a maximum building height of 14 meters from the natural ground level, build a treatment plant for wastewater, avoiding discharges into the sea, estuaries, and streams; in addition to the payment of obligations and all permits required by the laws of the country. • Official Communication PGP-295-2019 Certification POLO TURÍSTICO GOLFO PAPAGAYO. 5-002172-Z-OOO with Cadastre Plan number G-1155786-2007, is: HOTEL AREA, FLORA AND FAUNA PROTECTION AREA, CONDO-HOTEL AND COMMERCIAL. The concessionaire must comply with the technical standards and guidelines established by the General Master Plan of the Project, which are: a maximum density of twenty rooms per hectare, a maximum surface coverage of 30%; a maximum building height of 14 meters from the natural ground level, build a treatment plant for wastewater, avoiding discharges into the sea, estuaries, and streams; in addition to the payment of obligations and all permits required by the laws of the country.
That according to the THIRD Considerando of Resolution No. 0591-2022-SETENA, it was indicated: “..The studies carried out point out a series of recommendations that must be followed as indicated, as part of the environmental commitments of the project. In the event that the removal of any tree is required, the corresponding permit must be processed before the MINAE office, and in the event that surface water bodies or wells are located within or on the limits of the Project Site (AP), the current legislation on protection zones must be applied …”. In addition to all of the above, it must not be forgotten that the Environmental License (Licencia Ambiental) is a preparatory and initial act for the execution of a project and its purpose is to allow for the imposition of all those mitigation or compensation measures that are necessary to avoid causing irreparable damage to the environment in accordance with Article 17 of the Organic Law of the Environment.
It is reiterated that the license granted is an intermediate act necessary for the subsequent obtaining of the permits necessary for the development of the project, which are mandatory for its realization. Currently, there is the official communication DAJ-MINAE-1591-2025, which confirms the utilization (aprovechamiento) of 30%. It is clarified that, during the evaluation of the file, the State Natural Heritage (Patrimonio Natural del Estado) information layer, prepared by SINAC and available on the SNIT (National Territorial Information System) as of April 7, 2021, did not present State Natural Heritage areas over the Project Site. Although the official communication SETENA-SG-0646-2025 of May 20, 2025, records that, according to the Geographic Information System, the mentioned Lot 1 had a forest cover of 99% in 2000 and 98% in 2023, it is reiterated that the Department of Environmental Assessment verified by means of the site design, presented by the Developer and considering that all the cadastral plans had 100% forest cover, that indeed the utilization will not be greater than the permitted 30%.
Fourth Argument (Cuarto Alegato): “…It points out that the areas can be used for ecotourism uses, such as walks, wildlife sighting, camping, and other healthy, positive, and sustainable activities in our forests. It affirms that this forest, State Natural Heritage, represents an asset that can be enjoyed by all people living in the area or those who visit as tourists. It also sets forth the great variety of wildlife, birds, monkeys, raccoons, coatis, squirrels, iguanas, and dozens of additional species present in the area. It reiterates that, for this reason, those forests must be preserved, according to said current law…” Response to the Fourth Argument: Regarding matters under SETENA's purview, in relation to the issue of flora and fauna protection, the environmental measures proposed in the file include: …Flora: • Carry out clearing activities (desmonte) only on those strictly necessary sites (construction footprint). • Promote, to the extent possible, the development and protection of native species in the area, as part of the environmental protection and development actions for the green areas located within the Project Site. • Obtain the tree-cutting permit from MINAE in accordance with the provisions of the Forest Law. • The limits of the vegetative cover removal zone must be clearly indicated on the ground, using visible signals (colored tapes or others), to allow verification of the cutting zone limits.
Machinery must not circulate outside the delimited zone. • Trees to be removed must be identified and marked with colored tapes, paint, or others in accordance with the granted permit. • All necessary precautions must be taken to protect from any damage or mutilation the remaining trees in the Project Site. • Protect the areas adjacent to the project by preventing the entry of machinery to those sites. • Enrich the areas available for planting (as long as they do not interfere with the project), with native tree and shrub species, as well as herbaceous species, in different areas of the project site and direct area of influence. Fauna: • Conserve and protect the existing regeneration zones in the Project Site. • Maintain cover in areas where activities are not developed, so that birds have more nesting sites and food sources. • Generate new sites, if possible, for the stay of local fauna, through the planting of native tree and shrub species in different areas of the project site and direct area of influence. • Adequately manage solid and liquid waste to avoid possible impacts on fauna health.
It is worth noting that all observed species, both in the Project Site, as well as in the Direct Area of Influence and the Indirect Area of Influence, are very common species in the Guanacaste area, with stable and abundant populations, where various similar projects have been carried out without causing an impact on the populations of these species. It is important to emphasize that the previously mentioned species, Kinosternon scorpioides, Tamandua mexicana, and Dasyprocta punctata, are species that, according to the Red List of the International Union for Conservation of Nature, are in the conservation category of Least Concern, meaning they are species that have no degree of threat. As a measure to protect both terrestrial and arboreal fauna species, vegetation clearing (limpieza vegetal) of the area to be used will be carried out before starting the tree-cutting process and earthworks (movimiento de tierra), with the intention of driving away larger fauna and preventing some species from returning to the site.
In the event that tree cutting and earthworks must be carried out, fauna rescue will be performed; if the rescued individual is in good condition, it will be reintroduced to its natural habitat, for which the project has a forest area that will not undergo alterations, and if the individual presents an injury, it will be transferred to a veterinary clinic or a nearby rescue center. Regarding avian fauna, it may be affected during tree cutting. To mitigate this effect, it is intended, to the extent possible, to carry out this task before the nesting season. In the event of the presence of an injured animal, it will be transferred to a veterinary clinic or rescue center. The project in its entirety presents approximately 30% of construction footprint; the other 70% will be designated for green areas and forest, so the effect on wildlife will be reduced. In relation to the site that could directly affect the coastal-wetland ecosystem area, it would be the development on plan 5-2311315-2021, in which it is projected that its footprint will be approximately 8%, leaving 92% of the site as green areas.
Likewise, it must be remembered that the coastal-wetland ecosystem is not within the Project Site; however, the respective mitigation measures will be taken to avoid any impact linked to the sediment dragging that could be caused by the project through the rivers and streams from plan 5-2311315-2021 towards the site. Among the proposed measures are the construction of perimeter ditches with sediment traps in sloped sectors, avoiding earthworks during rainy periods, ensuring an adequate drainage system on road edges, and the installation of eco-friendly pavers. During the operational phase, there will be a treatment plant to prevent the flow of wastewater toward the wetland. Mantled Howler Monkey (Alouatta palliata), a medium-sized primate species, with blackish-yellowish fur, has a prehensile tail, diurnal and arboreal habits. This species can be affected especially by tree cutting and machinery noise.
As mitigation measures, the following must be done: • Schedule of activities prior to construction, such as inspections, installation of protective fences, and informational sessions on-site for contractors. • Placement and specifications of the required protection measures (fences, signs, among others). • Carry out pre-stressing tasks 2 or 3 weeks before starting work. • Clearly establish the phases and direction of site-clearing activities. • Install adequate signage regarding internal access routes for vehicles and other heavy equipment, vehicle parking, material preparation and storage, among others. • Vegetation removal (remoción de vegetación) and other site-clearing activities must be carried out in phases, generally moving from the most disturbed part of the site (closest to existing development) toward the least disturbed part of the site. Even on small sites that can be cleared in a single day, it is important to follow this pattern to “drive” the individuals out of the site toward adjacent undisturbed habitat or toward the nearest habitat. • Thoroughly check the trees before they are cut.
In the event that individuals return to the Project Site after nightfall, seeking the habitat that used to be there or attracted if it seems to provide food, water, or shelter, daily inspections before work begins are recommended to reduce the risk of harm. • In the event that the mentioned measures do not take effect for the individuals and they are located in trees that will be cut, attempts will be made to drive them away; if they do not leave, one must wait until the next day until they move on. • If cutting is accidentally carried out with individuals in it, rescue must be carried out for any howler monkeys that are injured; if they require veterinary treatment, they must be transferred to a rescue center or a wildlife veterinarian to be attended to. • Northern Tamandua (Tamandua mexicana), anteater with an elongated body, cream-colored fur with a black “vest,” powerful front legs used to break ant nests and termite mounds.
With diurnal and nocturnal habits, and can use terrestrial and arboreal habitat. During the construction stage, this species can be affected both by tree cutting and by earthworks with machinery. As mitigation measures, the following must be done: • Schedule of activities prior to construction, such as inspections, installation of protective fences, and informational sessions on-site for contractors. • Placement and specifications of the required protection measures (fences, signs, among others). • Carry out pre-stressing tasks 2 or 3 weeks before starting work. • Clearly establish the phases and direction of site-clearing activities. • Install adequate signage regarding internal access routes for vehicles and other heavy equipment, vehicle parking, material preparation and storage, among others. • Vegetation removal and other site-clearing activities must be carried out in phases, generally moving from the most disturbed part of the site (closest to existing development) toward the least disturbed part of the site.
Even on small sites that can be cleared in a single day, it is important to follow this pattern to “drive” the individuals out of the site toward adjacent undisturbed habitat or toward the nearest habitat. • Thoroughly check the trees before they are cut. • In the event that individuals return to the Project Site after nightfall, seeking the habitat that used to be there or attracted if it seems to provide food, water, or shelter, daily inspections before work begins are recommended to reduce the risk of harm. • In the event that the mentioned measures do not take effect for the individuals and they are located in trees that will be cut, attempts will be made to drive them away; if they do not leave, one must wait until the next day until they move on. • If cutting is accidentally carried out with individuals in it, rescue must be carried out for any anteaters that are injured; if they require veterinary treatment, they must be transferred to a rescue center or a wildlife veterinarian to be attended to. • Regarding earthworks, prior surveys must be made of the area where earthworks will be carried out to search for and drive away any fauna present on the site. • Painted Wood Turtle (Rhinoclemmys pulcherrima), a mainly terrestrial turtle, found in dry forests.
Predominantly diurnal activity. During the construction stage, this species can be affected by earthworks with machinery. As mitigation measures, the following must be done: • Carry out prior surveys of the area where earthworks will be carried out to search for and drive away any fauna present on the site. In the event of locating individuals, they will be relocated within the project area where they are not in danger or in the habitat... Nombre07 Argument (Alegato): “It notes that an amparo action is filed against the destruction of the forest of Playa Panamá, on lands that in this case are the property of the State, for non-tourism uses. It alleges opposition to the simple trafficking of goods and real estate businesses of the private concessionaire company. It maintains that the concessionaire company is affecting and degrading the forest without permits from SINAC-MINAE, in plain sight and with the forbearance of the ICT.
It states that the subdivision (lotificación) of 90 villas, of between 1,000 and 1,500 m² each, appears documented and detailed in Official Communication PGP-0451-2024. It relates that the subdivision is not in the original concession contract signed by the ICT and is contrary to what was offered in the public bidding process awarded and thus concessioned by the ICT. It narrates that, in advertising campaigns, both in the country and abroad, in Spanish and English, the company offers properties in its Bahía Papagayo project without indicating that they are public lands, property of the State, inalienable. It reiterates that the company has breached its contractual obligations in the first 20 years of the concession's term. It affirms that the concession term expires, according to the original contract, on August 3, 2025. It highlights that the information used to support this appeal is based on documentation obtained from the ICT after an amparo action that was processed under file no. 25-004460-0007-CO for omission of response, which the Constitutional Chamber (Sala Constitucional) granted, by resolution no. 2025-007129, at 09:20 hours on March 7, 2025, where it ordered the following: \"within the period of TEN DAYS, counted from the notification of this ruling, the petitioner be provided with the entirety of the requested information.\" It argues that the subdivision for the construction of luxury residential villas on the State-owned, concessioned property does not correspond to the Master Plan, which must be mandatorily observed according to Article 2 of Law 6758.
It highlights that the current Master Plan, with its details on land uses, zoning, density, and specifications for the development of the Papagayo Project, could not be obtained from the ICT. It maintains that it only provided the regulations thereof, so it requests that in the response of the defendants, said duly certified document be provided, with special detail of the area in question in Playa Panamá. It indicates that having the current Master Plan at hand, with all the inputs, technical studies, and definitions, is basic for the resolution of this amparo and to verify if what is challenged complies or not with Law 6758. It argues that, in the absence of the mentioned document, it would be confirmed that the ICT violates Law 6758 of the Papagayo Project. It contends that the neighbors settled in Playa Panamá bought private properties near Papagayo, outside the state-owned property area, and built their houses, attracted by the natural and scenic beauties provided by its forests and beaches, seeking tranquility and nature.
It claims that they feel affected, aggrieved, hurt, and upset by the intention to destroy and make disappear the forests they so love and enjoy.” Response to the Nombre07 Argument: It should be specified that the object of this argument does not deal with the actions or omissions deployed by the National Environmental Technical Secretariat (SETENA), since such actions fall outside the scope of competence of this instance and are not part of the factual core analyzed in this file.”.
Magistrate Hess Herrera writes; and, Considering (Considerando):
SOLE (ÚNICO). - The petitioner files an amparo against the ICT considering that within the Papagayo Tourism Project (Law 6758), residential real estate development would be allowed —specifically the subdivision (lotificación) of 90 villas in Dirección08 in Playa Panamá— on public lands mostly covered by forest, which is deemed contrary to the tourism objective of the law, the Master Plan, and the Forest Law. It alleges that the ICT has authorized non-tourism uses and that the concessionaire company would be affecting the forest without SINAC permits, damaging the State's natural heritage and the right to a healthy environment of neighbors and visitors.
Now then, in accordance with the analysis carried out in this file, it is considered necessary to suspend the issuance of the ruling in this amparo action, until this Chamber definitively rules on the unconstitutionality action No. 25-024408-0007-CO, currently in process. Indeed, it is verified that the referred unconstitutionality action was admitted and has as its object the questioning of various provisions introduced by Executive Decree No. 44448-MP-TUR, which directly affect the legal regime of the Golfo de Papagayo Tourism Project. Said regulatory norms —particularly Article 12 and several points of the Sole Annex (Anexo Único)— form part of the normative framework whose application and compatibility with the environmental legal order are analyzed in this amparo action.
There is, therefore, a direct, relevant, and decisive relationship between both constitutional processes, to the extent that the resolution of the amparo would necessarily require starting from the validity or invalidity of a regulatory norm whose constitutionality is currently questioned through an unconstitutionality action. In that sense, to issue a ruling at this time would imply applying or assuming as valid regulatory provisions that could eventually be expelled from the legal system, which is incompatible with the principles of legal certainty and coherence of constitutional control.
Additionally, it is noted that in other matters of a materially analogous nature, equally linked to the challenge of Executive Decree No. 44448-MP-TUR and to the existing tension between the special Papagayo regime and the Forest Law No. 7575, it has been considered prudent to defer the advancement of the processes until the respective unconstitutionality action is resolved, precisely to avoid decisions based on norms whose constitutional validity has not been defined.
From the procedural point of view, when a norm challenged in an unconstitutionality action is relevant for the resolution of another process, the appropriate course is to abstain from issuing the final resolution, keeping the file in a state of resolution until the Chamber rules on the corresponding abstract control.
Hence, this Chamber considers it appropriate to suspend the proceedings of this amparo action, until said process is resolved, in accordance with the provisions of Article 48 of the Law of Constitutional Jurisdiction.
Therefore (Por tanto):
The proceedings of this amparo action are suspended, until the unconstitutionality action processed under file No. 25-024408-0007-CO is resolved. - Fernando Castillo V. President Fernando Cruz C.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ingrid Hess H.
FILE No. 25-020400-0007-CO South of the church of Perpetuo Socorro).
It is a faithful copy of the original - Taken from Nexus.PJ on: 29-03-2026 07:19:35.
SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve horas veinte minutos del seis de febrero de dos mil veintiseis .
Recurso de amparo que se tramita en expediente No. 25-020400-0007-CO, interpuesto por GAD AMIT KAUFMAN, cédula de residencia CED01, contra el INSTITUTO COSTARRICENSE DE TURISMO.
Resultando:
13- Mediante resolución de las 08:50 horas del 20 de enero de 2026, se ordenó ampliar las partes del presente proceso.
Fase Lote Plano Catastrado Huella Constructiva (m²) Área de la Propiedad (m²) Porcentaje (%) I Lote 1 5-1186670-2007 130.572 436.564 30% II Lote 4 5-1274126-2008 68.350,04 309.064,25 22% III Lote 3 5-1155787-2007 32.926,32 124.827,92 26,4% IV Lote 5 5-1155786-2007 58.978,00 204.165,91 29% Es importante recalcar que el proyecto se desarrolla en 4 planos catastrados cuyas coberturas están descritas según el análisis Geoespacial realizado por esta Secretaría. Durante el proceso de análisis del expediente, como parte de la información para mejor resolver, por parte del desarrollador, se presenta: • Declaración de conveniencia nacional, el desarrollo y ejecución del Proyecto Turístico Golfo de Papagayo, según Decreto Ejecutivo Nº 33132. • Oficio PGP-292-2019 Constancia POLO TURÍSTICO GOLFO PAPAGAYO. 5- 002168-Z-000 con Plano Catastro número G-1186670-2007, es: ÁREA HOTELERA Y ÁREA DE PROTECCIÓN FLORA Y FAUNA - USO DE SUELO COMPLEMENTARIO: RESIDENCIAL, CONDOHOTEL Y COMERCIAL.
La concesionaria deberá de cumplir con las normas técnicas y directrices establecidas por el Plan Maestro General del Proyecto como son: una densidad máxima de veinte habitaciones por hectárea, una cobertura de superficie máxima de un 30%; una altura máxima de edificaciones de 14 metros del nivel del terreno natural, construir una planta de tratamiento para aguas residuales, evitando los vertidos al mar, esteros y quebradas; además el pago de obligaciones y todos los permisos a que obligan las leyes del país. • Oficio PGP-293-2019 Constancia POLO TURÍSTICO GOLFO PAPAGAYO. 5- 002169-Z-000 con Plano Catastro número G-1155787-2007, es: ÁREA HOTELERA Y ÁREA DE PROTECCIÓN FLORA Y FAUNA- USO DE SUELO COMPLEMENTARIO: RESIDENCIAL Y CONDOHOTEL. La concesionaria deberá de cumplir con las normas técnicas y directrices establecidas por el Plan Maestro General del Proyecto como son: una densidad máxima de veinte habitaciones por hectárea, una cobertura de superficie máxima de un 30%; una altura máxima de edificaciones de 14 metros del nivel del terreno natural, construir una planta de tratamiento para aguas residuales, evitando los vertidos al mar, esteros y quebradas; además el pago de obligaciones y todos los permisos a que obligan las leyes del país. • Oficio PGP-294-2019 Constancia POLO TURÍSTICO GOLFO PAPAGAYO. 5- 002174-Z-000 con Plano Catastro número G-1274126-2008, es: ÁREA HOTELERA, RESIDENCIAL, COMERCIAL, ÁREA DE CAMPAMENTOS Y ÁREA DE PROTECCIÓN FLORA Y FAUNA - USO DE SUELO COMPLEMENTARIO: CONDOHOTEL.
La concesionaria deberá de cumplir con las normas técnicas y directrices establecidas por el Plan Maestro General del Proyecto como son: una densidad máxima de veinte habitaciones por hectárea, una cobertura de superficie máxima de un 30%; una altura máxima de edificaciones de 14 metros del nivel del terreno natural, construir una planta de tratamiento para aguas residuales, evitando los vertidos al mar, esteros y quebradas; además el pago de obligaciones y todos los permisos a que obligan las leyes del país. • Oficio PGP-295-2019 Constancia POLO TURÍSTICO GOLFO PAPAGAYO. 5- 002172-Z-OOO con Plano Catastro número G-1155786-2007, es: ÁREA HOTELERA, ÁREA DE PROTECCIÓN FLORA Y FAUNA, CONDOHOTEL Y COMERCIAL. La concesionaria deberá de cumplir con las normas técnicas y directrices establecidas por el Plan Maestro General del Proyecto como son: una densidad máxima de veinte habitaciones por hectárea, una cobertura de superficie máxima de un 30%; una altura máxima de edificaciones de 14 metros del nivel del terreno natural, construir una planta de tratamiento para aguas residuales, evitando los vertidos al mar, esteros y quebradas; además el pago de obligaciones y todos los permisos a que obligan las leyes del país.
Que según el Considerando TERCERO de la Resolución Nª0591-2022-SETENA, se indicó: “..Los estudios realizados señalan una serie de recomendaciones que deben acatarse según lo indicado, como parte de los compromisos ambientales del proyecto. En caso de requerirse la eliminación de algún árbol, debe de tramitar el permiso correspondiente ante la oficina del MINAE, y en caso de que se ubiquen cuerpos de agua superficial o pozos dentro o en los límites del AP, deberá de aplicarse la legislación vigente en materia de zonas de protección …”. Aunado a todo lo anterior, no debe olvidar que la Licencia Ambiental es un acto preparatorio e inicial para la realización de un proyecto y el fin es que se puedan imponer todas aquellas medidas de mitigación o compensación que sean necesarias para no causar un daño de imposible reparación al ambiente de conformidad con el artículo 17 de la Ley Orgánica del Ambiente.
Se reitera que la licencia que se otorgó es un acto intermedio necesario para la posterior obtención de los permisos necesarios para el desarrollo del proyecto, los cuales son obligatorios para la concreción del mismo. Actualmente se cuenta con el oficio DAJ-MINAE-1591-2025, donde confirma el aprovechamiento de un 30%. Se aclara que, durante la evaluación del expediente, la capa de información de Patrimonio Natural del Estado, elaborada por el SINAC y disponible en el SNIT (Sistema Nacional de Información Territorial) en fecha del 7 de abril del 2021, no presentaba sobre el Área del Proyecto áreas Patrimonio Natural del Estado. Si bien el oficio SETENA-SG-0646-2025 de 20 de mayo de 2025, que consigna que, según el Sistema de Información Geográfica, el Lote 1 mencionado, tenía una cobertura de bosque de 99% en el 2000 y de 98% en 2023, se reitera que el Departamento de Evaluación Ambiental verificó por medio del diseño de sitio, presentado por el Desarrollador y considerando que todos los planos catastrados, tenían el 100% de cobertura de bosque, que efectivamente el aprovechamiento no será mayor al 30% permitido.
Cuarto Alegato: “…Señala que las áreas pueden destinarse a usos de ecoturismo, como caminatas, avistamiento de fauna silvestre, acampadas y otras actividades sanas, positivas y sostenibles en nuestros bosques. Afirma que, ese bosque, Patrimonio Natural del Estado, representa un bien del que pueden disfrutar todas las personas que viven en la zona o quienes la visitan como turistas. Expone que también, la gran variedad de fauna silvestre, aves, monos, mapaches, pizotes, ardillas, garrobos y decenas de especies adicionales presentes en la zona. Reitera que, por esa razón deben ser preservados esos bosques, según esa ley vigente…” Respuesta al Cuarto Alegato: En cuanto a lo que compete a la SETENA, en relación al tema de protección a la flora y fauna se tiene que dentro de las medidas ambientales propuestas en el expediente se tiene: …Flora: • Desarrollar las actividades de desmonte únicamente en aquellos sitios estrictamente necesarios (huella de construcción). • Impulsar en la medida de lo posible, el desarrollo y protección de las especies nativas de la zona, como parte de las acciones de protección y desarrollo ambiental de las áreas verdes localizadas dentro del AP. • Contar con el permiso de corta de árboles por parte del MINAE de conformidad con lo que establece la Ley Forestal. • Los límites de la zona de remoción de la cobertura vegetal, deben indicarse claramente sobre el terreno, utilizando señales visibles (cintas de colores u otros), que permitan verificar los límites de la zona de corta.
La maquinaria no deberá circular fuera de la zona delimitada. • Los árboles para eliminar deben ser identificados y marcados con cintas de colores, pintura u otros de acuerdo con el permiso otorgado. • Deben tomarse todas las precauciones necesarias para proteger de cualquier daño o mutilación a los árboles remanentes en el AP. • Proteger las áreas adyacentes al proyecto evitando el ingreso de maquinaria a esos sitios. • Enriquecer las áreas disponibles para siembra (siempre y cuando no interfieran con el proyecto), con especies nativas de árboles y arbustos, así como de especies herbáceas, en diferentes zonas del área de proyecto y área de influencia directa. Fauna: • Conservar y proteger las zonas en regeneración existentes en el AP. • Mantener una cobertura en las zonas donde no se desarrollan actividades, para que las aves cuenten con más sitios de anidamiento y fuente de alimento. • Generar nuevos sitios de ser posible para la estancia de la fauna local, a través de la siembra de especies de árboles y arbustos nativos en diferentes zonas del área de proyecto y área de influencia directa. • Manejar adecuadamente los residuos sólidos y líquidos para evitar posibles afectaciones en la salud de la fauna Cabe destacar que todas las especies observadas tanto en el Ares del Proyecto, como en el Area de Influencia Directa y el Area de Influencia Indirecta, son especies muy comunes en la zona de Guanacaste, con poblaciones estables y abundantes, donde se han realizado diversos proyectos similares sin causar afectación a las poblaciones de estas especies.
Es importante recalcar que las especies mencionadas en el de previo, Kinosternon scorpioides, Tamandua mexicana y Dasyprocta punctata son especies que según la Lista Roja de la Unión Internacional para la Conservación de la Naturaleza se encuentran en la categoría conservación de Preocupación Menor, por lo que son especies que no tienen algún grado de amenaza. Como medida de protección a las especies de fauna tanto terrestres como arborícolas se realizará limpieza vegetal del área a utilizar antes de iniciar el proceso de corta de árboles y el movimiento de tierra, con esto se pretende ahuyentar a la fauna mayor y evitar que algunas especies vuelvan al sitio. En el caso que se deba realizar corta de árboles y el movimiento de tierra se realizará rescate de fauna, si el individuo rescatado se encuentra en buen estado se reincorporará a su hábitat natural, para esto el proyecto cuenta con zona de bosque que no sufrirá alteraciones, y si el individuo presenta alguna herida este será trasladado a una clínica veterinaria o a un centro de rescate cercano.
Con respecto a la fauna aviar, esta se podrá ver afectada durante la corta de árboles. Para mitigar este efecto se pretende en la medida de posible realizar esta labor antes de la época de anidación. En caso de exista la presencia de algún animal lastimado, este será trasladado a una clínica veterinaria o centro de rescate. El proyecto en su totalidad presenta aproximadamente el 30% de huella de construcción, el otro 70% serán destinados a áreas verdes y de bosque, por lo que el efecto a la fauna silvestre será reducido. Con relación al sitio que podría afectar directamente el área del ecosistema humedal-costero sería el desarrollo en el plano 5-2311315-2021, en cual se proyecta que su huella será de aproximadamente 8%, restando un 92% del sitio como áreas verdes. Así mismo, se debe recordar que el ecosistema humedal-costero no se encuentra dentro del AP, sin embargo, se tomarán las medidas de mitigación respectivas para evitar cualquier afectación vinculada con el arrastre de sedimentos que podría provocar el proyecto a través de los ríos y quebradas del plano 5-2311315-2021 hacia el sitio.
Entre las medidas propuestas se encuentran, construcción de cunetas perimetrales con sedimentadores en sectores con pendiente y se evitaran labores de movimientos de tierra en periodos de lluvia, asegurar un sistema adecuado de drenaje a las orillas de los caminos, instalación de adoquines ecológicos. Durante fase operativa se contará con planta de tratamiento para evitar el flujo de aguas residuales hacia el humedal. Mono Congo (Alouatta palliata), especie de primate de tamaño mediano, de pelaje negruzco-amarillento, cuenta con cola prensil, de hábitos diurnos y arborícolas. Esta especie se puede ver afectada especialmente por la corta de árboles y ruido de maquinarias. Como medidas de mitigación se debe de: • Calendario de actividades previas a la construcción, como inspecciones, instalación de cercas protectoras y sesiones informativas en el lugar para los contratistas. • Colocación y especificaciones de las medidas de protección requeridas (cercas, letreros, entre otros). • Realizar labores de pre – estresado 2 o 3 semanas antes de iniciar labores. • Establecer claramente las fases y dirección de las actividades de limpieza del sitio. • Instalar rotulación adecuada con relación a las rutas de acceso interno para vehículos y otros equipos pesados, estacionamiento de vehículos, preparación y almacenamiento de materiales, entre otros. • La remoción de vegetación y otras actividades de limpieza del sitio deben realizarse en fases, generalmente moviéndose desde la parte más perturbada del sitio (más cercana al desarrollo existente) hacia la menos perturbada del sitio.
Incluso en sitios pequeños que se pueden despejar en un solo día, es importante seguir este patrón para “sacar” a los individuos del sitio hacia un hábitat adyacente no perturbado o hacia el hábitat más cercano. • Revisar muy bien los árboles previamente a ser cortados En el caso que los individuos regresen al AP después del anochecer, buscando el hábitat que solía estar allí o atraídos si parece proporcionar comida, agua o refugio se recomienda inspecciones diarias antes que comience el trabajo reducirán el riesgo de daño. • En el que las medidas mencionadas no surtiesen efecto para los individuos y se ubiquen en los árboles que serán cortados, se tratará de ahuyentarlos, si estos no se van, se debe esperar al día siguiente hasta que se movilicen. •Si por accidente se realiza la corta con individuos en él, se debe de realizar el rescate de los congos que resulten lastimados, si estos ameritan tratamiento veterinario se deben de trasladar a un centro de rescate o una veterinaria de vida silvestre para ser atendidos. •Nombre11 (Tamandua mexicana), oso hormiguero de cuerpo alargado, pelaje color crema con “chaleco” negro, patas delanteras poderosas utilizadas para romper nidos de hormigas y termiteros.
Con hábitos diurnos y nocturnos, y se puede utilizar hábitat terrestre y arborícola. Durante la etapa constructiva esta especie se puede ver afectada tanto por la corta de árboles como por el movimiento de tierras con maquinaria. Como medidas de mitigación se debe de: • Calendario de actividades previas a la construcción, como inspecciones, instalación de cercas protectoras y sesiones informativas en el lugar para los contratistas. • Colocación y especificaciones de las medidas de protección requeridas (cercas, letreros, entre otros). • Realizar labores de pre – estresado 2 o 3 semanas antes de iniciar labores. • Establecer claramente las fases y dirección de las actividades de limpieza del sitio. • Instalar rotulación adecuada con relación a las rutas de acceso interno para vehículos y otros equipos pesados, estacionamiento de vehículos, preparación y almacenamiento de materiales, entre otros. • La remoción de vegetación y otras actividades de limpieza del sitio deben realizarse en fases, generalmente moviéndose desde la parte más perturbada del sitio (más cercana al desarrollo existente) hacia la menos perturbada del sitio.
Incluso en sitios pequeños que se pueden despejar en un solo día, es importante seguir este patrón para “sacar” a los individuos del sitio hacia un hábitat adyacente no perturbado o hacia el hábitat más cercano. • Revisar muy bien los árboles previamente a ser cortados • En el caso que los individuos regresen al AP después del anochecer, buscando el hábitat que solía estar allí o atraídos si parece proporcionar comida, agua o refugio se recomienda inspecciones diarias antes que comience el trabajo reducirán el riesgo de daño. • En el que las medidas mencionadas no surtiesen efecto para los individuos y se ubiquen en los árboles que serán cortados, se tratará de ahuyentarlos, si estos no se van, se debe esperar al día siguiente hasta que se movilicen. • Si por accidente se realiza la corta con individuos en él, se debe de realizar el rescate de los hormigueros que resulten lastimados, si estos ameritan tratamiento veterinario se deben de trasladar a un centro de rescate o una veterinaria de vida silvestre para ser atendidos. • Con respecto al movimiento de tierras se debe de realizar recorridos previos por zona donde se realizará el movimiento de tierras para buscar y ahuyentar la fauna que se encuentre presente en el sitio. • Tortuga roja (Rhinoclemmys pulcherrima), tortuga principalmente terrestre, se encuentra en los bosques secos.
De actividad predominantemente diurna. Durante la etapa constructiva esta especie se puede ver afectada por el movimiento de tierras con maquinaria. Como medidas de mitigación se debe de: • Realizar recorridos previos por zona donde se realizará el movimiento de tierras para buscar y ahuyentar la fauna que se encuentre presente en el sitio. En el caso de localizar a los individuos se procederá a relocalizarlos dentro de la zona del proyecto donde no presente peligro o en el hábitat... Nombre07 Alegato: “Acota que interpone el recurso de amparo contra la destrucción del bosque de Playa Panamá, en tierras que en este caso son propiedad del Estado, para usos no turísticos. Alega que se opone al simple tráfico de bienes y negocios inmobiliarios de la empresa privada concesionaria. Sostiene que la empresa concesionaria está afectando y degradando el bosque sin contar con permisos del SINAC-MINAE, a vista y paciencia del ICT.
Manifiesta que la lotificación de 90 villas, de entre 1.000 y 1.500 m² cada una, aparece documentada y detallada en el Oficio PGP-0451- 2024. Relata que la lotificación no está en el contrato de concesión original firmado por el ICT y es contraria a lo ofrecido en el proceso de licitación pública adjudicado y así concesionado por el ICT. Narra que, en campañas publicitarias, tanto en el país como en el extranjero, en español e inglés, la empresa ofrece propiedades en su proyecto Bahía Papagayo sin indicar que se trata de tierras públicas, propiedad del Estado, inalienables. Reitera que la empresa ha incumplido sus obligaciones contractuales en los primeros 20 años de vigencia de la concesión. Afirma que el plazo de concesión vence, según el contrato original, el 3 de agosto de 2025. Resalta que la información usada para sustentar este recurso es en base a la documentación obtenida del ICT después de un recurso de amparo que se tramitó bajo el expediente nro. 25-004460- 0007-CO por omisión de respuesta, el cual la Sala Constitucional declaró con lugar, por resolución nro. 2025-007129, a las 09:20 horas del 07 de marzo de 2025, donde ordenó lo siguiente: "dentro del plazo de DIEZ DÍAS, contado a partir de la notificación de esta sentencia, se le brinde al recurrente la totalidad de la información requerida." Arguye que la lotificación para construcción de villas residenciales de lujo en la finca propiedad del Estado, concesionada, no corresponde al Plan Maestro, el cual es de acatamiento obligatorio según el Artículo 2 de la Ley 6758.
Resalta que el Plan Maestro vigente, con sus detalles sobre usos de suelo, zonificación, densidad y especificaciones para el desarrollo del Proyecto Papagayo, no lo ha podido obtener del ICT. Sostiene que solo le aportó el reglamento del mismo, por lo que solicita que en la respuesta de los recurridos, se aporte ese documento debidamente certificado, con especial detalle de la zona en cuestión en Playa Panamá. Indica que el tener a mano el Plan Maestro vigente, con todos los insumos, estudios técnicos y definiciones es básico para la resolución de este amparo y para verificar si lo impugnado, cumple o no con la Ley 6758. Aduce que, en caso de ausencia del mencionado documento, se confirmaría que el ICT viola la Ley 6758 del Proyecto Papagayo. Esgrime que los vecinos asentados en Playa Panamá compraron propiedades privadas cerca de Papagayo, fuera del área de propiedad área estatal y construyeron sus casas, atraídos por las bellezas naturales y escénicas proporcionadas por sus bosques y playas, buscando tranquilidad y naturaleza.
Reclama que se sienten afectados, agredidos, dolidos y molestos por la intención de destruir y desaparecer los bosques que tanto aman y disfrutan.” Respuesta al Nombre07 Alegato: Cabe precisar que el objeto del presente alegato, no versa sobre las actuaciones u omisiones desplegadas por la Secretaría Técnica Nacional Ambiental (SETENA), toda vez que dichas gestiones se encuentran fuera del ámbito de competencia de esta instancia y no forman parte del núcleo fáctico analizado en este expediente.”.
Redacta la Magistrada Hess Herrera; y,
Considerando:
ÚNICO. - La parte recurrente interpone amparo contra el ICT al considerar que dentro del Proyecto Turístico de Papagayo (Ley 6758) se estaría permitiendo un desarrollo inmobiliario residencial —específicamente la lotificación de 90 villas en el Dirección08 en Playa Panamá— en tierras públicas cubiertas mayoritariamente por bosque, lo cual estima contrario al objetivo turístico de la ley, al Plan Maestro y a la Ley Forestal. Alega que el ICT ha autorizado usos no turísticos y que la empresa concesionaria estaría afectando el bosque sin permisos del SINAC, lesionando el patrimonio natural del Estado y el derecho a un ambiente sano de vecinos y visitantes.
Ahora bien, de conformidad con el análisis efectuado en el presente expediente, se estima necesario suspender el dictado de la sentencia en el presente recurso de amparo, hasta tanto esta Sala se pronuncie de manera definitiva sobre la acción de inconstitucionalidad n.° 25-024408-0007-CO, actualmente en trámite. En efecto, se constata que la referida acción de inconstitucionalidad fue admitida y tiene por objeto el cuestionamiento de diversas disposiciones introducidas por el Decreto Ejecutivo n.° 44448-MP-TUR, las cuales inciden directamente en el régimen jurídico del Proyecto Turístico Golfo de Papagayo. Dichas normas reglamentarias —particularmente el artículo 12 y varios puntos del Anexo Único— forman parte del marco normativo cuya aplicación y compatibilidad con el ordenamiento jurídico ambiental se analizan en el presente recurso de amparo.
Existe, por tanto una relación directa, relevante y decisoria entre ambos procesos constitucionales, en la medida en que la resolución del amparo exigiría necesariamente, partir de la validez o invalidez de una norma reglamentaria cuya constitucionalidad se encuentra actualmente cuestionada, a través de una acción de inconstitucionalidad. En ese sentido, dictar sentencia en este momento implicaría aplicar o asumir como válidas disposiciones reglamentarias que podrían eventualmente ser expulsadas del ordenamiento jurídico, lo cual resulta incompatible con los principios de seguridad jurídica y coherencia del control constitucional.
Adicionalmente, se advierte que en otros asuntos de naturaleza materialmente análoga, vinculados igualmente a la impugnación del Decreto Ejecutivo n.° 44448-MP-TUR y a la tensión existente entre el régimen especial de Papagayo y la Ley Forestal n.° 7575, se ha considerado prudente diferir el avance de los procesos hasta tanto se resuelva la acción de inconstitucionalidad respectiva, precisamente para evitar decisiones fundadas en normas cuya validez constitucional no ha sido definida.
Desde el punto de vista procesal, cuando una norma impugnada en acción de inconstitucionalidad resulta relevante para la resolución de otro proceso, lo procedente es abstenerse de dictar la resolución final, manteniendo el expediente en estado de resolución hasta que la Sala se pronuncie sobre el control abstracto correspondiente.
Ergo, considera esta Sala procedente suspender la tramitación de este recurso de amparo, hasta tanto no sea resuelto dicho proceso, conforme lo dispuesto por el artículo 48 de la Ley de la Jurisdicción Constitucional.
Por tanto:
Se suspende la tramitación de este recurso de amparo, hasta tanto no sea resuelta la acción de inconstitucionalidad que se tramita bajo el expediente N° 25-024408-0007-CO. - Fernando Castillo V.
Fernando Cruz C.
Paul Rueda L.
Luis Fdo. Salazar A.
Jorge Araya G.
Anamari Garro V.
Ingrid Hess H.
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