TRIBUNAL CONTENCIOSO ADMINISTRATIVO Central 2545-0003. Fax 2545-0033. Email ...01 Second Judicial Circuit of San José, Anexo A (Former Motorola building) ---------------------------------------------------------------------------------------------------------------------------------------------- PROCEEDING: MEDIDA CAUTELAR ANTE CAUSAM APPLICANT: CORPORACIÓN ULSAN S.A RESPONDENT: EL ESTADO (Tribunal Ambiental Administrativo) ------------------------------------------------------------------------------------------------------------------------ N°424-2019-T TRIBUNAL CONTENCIOSO ADMINISTRATIVO OF THE SECOND JUDICIAL CIRCUIT OF SAN JOSÉ, ANEXO A, Goicoechea, at sixteen hours twenty-five minutes on the sixteenth of August of the year two thousand nineteen.- Application for medida cautelar ante causam, filed by the representative of CORPORACIÓN ULSAN S.A against EL ESTADO (Tribunal Ambiental Administrativo).-
RESULTANDO
- I)The present application for a medida cautelar was filed on the twenty-fourth of July of the year two thousand nineteen; by means of which the representative of Corporación Ulsan S.A requests the following: "(...) 1. provisionally suspend the effects of the following administrative act: A) RESOLUCIÓN FINAL N°811-19-TAA of ten hours twenty minutes on the twenty-seventh of May of the year two thousand nineteen, issued BY THE TRIBUNAL AMBIENTAL ADMINISTRATIVO within administrative file number 158-17-02-TAA. 2. Order the Municipalidad de San Carlos not to immediately execute RESOLUCIÓN N°811-19-TAA of ten hours twenty minutes on the twenty-seventh of May of the year two thousand nineteen, issued by the TRIBUNAL AMBIENTAL ADMINISTRATIVO, which was notified to it on the 27th of June 2019 and there is time to execute it until the 27th of July 2019 (...)". (see filing brief dated 24/07/2019).- II) By ruling issued at sixteen hours five minutes on the twenty-fourth of July of this year, this Tribunal admitted the requested medida cautelar on an extremely provisional basis, and ordered, as relevant, the following: "(...) It is ordered at this time the immediate suspension of RESOLUCIÓN NÚMERO 811-19-TAA of ten hours twenty minutes on the twenty-seventh of May of the year two thousand nineteen, issued by the Tribunal Ambiental Administrativo, issued within administrative file number 158-17-02-TAA. The foregoing until this Tribunal has greater elements of judgment to definitively resolve the appropriateness or not of this medida cautelar.(...)". Also ordering that this provision be communicated to the Municipalidad de San Carlos (see ruling of 24/07/2019).- III) By means of the brief dated seventh of August of this year, the State representative responded negatively to the present protective application, and among its claims, it formulates those transcribed literally below: " III. PETITORIA Based on the factual and legal arguments set forth, this Representative requests that the medida cautelar sought by the plaintiff in this proceeding against the State be denied. However, should this Tribunal consider that the intended medida cautelar must be granted, I concomitantly request that upon granting the suspension of the effects of resolution 811-19-TAA, COORPORACIÓN (sic) ULSAN S.A. be ordered not to exercise any type of use of the buildings subject to the medida cautelar, that is, that the use of the infrastructure not be permitted, nor the entry or stay of persons, and that the suspension of the enforceability of contract 04217 be maintained. The foregoing, in accordance with the provisions of resolution 324-VEC-2019 of the Departamento de Proveeduría del Poder Judicial (evidence of the plaintiff number 3), which conditioned the resumption of contract 04217 until such time as it is demonstrated administratively or judicially that the premises, in whole or in part, will not be demolished; that the use, enjoyment, and possession thereof is guaranteed and that this does not affect the protection zone of protected water springs. Due to the manner in which the medida is formulated and how this hearing is answered, I request that this Tribunal resolve this protective matter without the oral hearing established in subsection 2) of article 24 of the CPCA." (see brief dated 07/08/2019).- IV) In the proceedings, the formalities of Law have been observed and no defects or omissions capable of invalidating what has been done or causing defenselessness to any of the parties are noted.
CONSIDERANDO
- I)GENERALITIES FOR THE GRANTING OF A MEDIDA CAUTELAR. As developed by the Sala Constitucional, protective justice responds to the need to guarantee the constitutional principle of prompt and fulfilled justice, by preserving the real conditions indispensable for the issuance and execution of the judgment. (Resolution 7190-1994, of 15:24 hours on 6 December). In this same sense, article 19 of the Código Procesal Contencioso Administrativo establishes that the purpose of imposing a medida cautelar is to protect and guarantee, provisionally, the object of the proceeding and the effectiveness of the judgment. The doctrine has indicated that protective justice does not have the purpose of declaring a fact or liability, nor of constituting a legal relationship, nor of executing a mandate and satisfying a right held without dispute, nor of settling a lawsuit, but rather of preventing the damages that the litigation may entail or that may derive from an abnormal situation (Gallegos Fedriani, Pablo. Las medidas cautelares contra la Administración Pública. 2 ed. Buenos Aires, Argentina: Ábaco, 2006). Having clarified the foregoing, the adjudicator, observing the provisions of article 21 of the indicated procedural norm, must determine the appropriateness of an application for a medida cautelar, verifying to that effect that the claim in the main proceeding is not reckless (temeraria) or, manifestly, lacking in seriousness, which constitutes a preliminary assessment of the merits to determine whether, in the case at hand, what the doctrine and case law have called appearance of good right or fumus boni iuris exists. The norm under analysis also establishes the appropriateness of the medida cautelar when the execution or continuation of the conduct subject to the proceeding produces serious damages or harm, current or potential, a situation that has been defined in the doctrine as periculum in mora or danger in delay, that is, that by virtue of the pathological delay of the judicial proceeding, a current, real, and objective danger exists that serious damage will be caused to the applicant (Jinesta Lobo, Ernesto. Manual del Proceso Contencioso-Administrativo. 1 ed. San José, Costa Rica, Editorial Jurídica Continental, 2008). Along the same line of thought, article 22 of the Código Procesal Contencioso Administrativo establishes the obligation of the adjudicator to carry out, in light of the principle of proportionality, a balancing of the competing interests, that is, between the circumstance of the individual, on the one hand, and the public interest and the interests of third parties that may be affected by the adoption of the medida cautelar, on the other. Additionally, and from the same Article 22 cited, it is required that the medida cautelar be instrumental and provisional.- II) ESSENTIAL REQUIREMENTS FOR ADMITTING A MEDIDA CAUTELAR. In this regard, it has been said that the fulfillment of protective relief, as a fundamental right derived from Article 41 of the Constitution, which is the right to obtain prompt and fulfilled justice, requires the jurisdictional body to assess for its effective materialization, in addition to the fulfillment of the presuppositions known in doctrine as Appearance of Good Right (Fumus Boni Iuris), Danger in Delay (Periculum in Mora), as well as the balancing of competing interests, which will be detailed below, the verification of the presence or existence of what have been called the structural characteristics of the medida cautelar. The foregoing refers to instrumentality, provisionality, urgency, and summaria cognitio or summary nature of the proceeding. Both the indicated presuppositions and the characteristics mentioned must be present for the granting of the medida that has been requested for the purpose of protecting and guaranteeing, provisionally, the object of the proceeding and the effectiveness of the judgment. Regarding the necessary presuppositions for granting the medida cautelar, we find the following: a) Appearance of Good Right: for the appropriateness of the medida cautelar, there must be "seriousness in the lawsuit," that is, a probability of success such that the lawsuit is not, at first glance, manifestly lacking in seriousness, or, where applicable, that it is reckless (temeraria). For the doctrine, this is nothing other than the probable later acceptance of the substantive right of the plaintiff in the judgment, through the analysis proper to an extremely summary proceeding that cannot, in any way, determine a pronouncement on the merits of the matter raised, but rather, in its place, only an approximation to it with the elements present at the time of issuing the decision that grants or denies the medida; b) Danger in Delay: consists of the objectively founded and reasonable fear that the substantial legal situation alleged will be seriously damaged or harmed in a grave and irreparable manner, during the course of the time necessary to issue judgment in the main proceeding. This presupposition requires the presence of two elements: the grave damage or harm and the delay in the main proceeding, without neglecting, of course, that within this presupposition is what the doctrine has called the "Bilaterality of Periculum in Mora" or, as it is commonly known, the balancing of the competing interests. This presupposition alludes to the characteristic that the damages complained of must be susceptible to occurring—currently or potentially—if the medida requested is not adopted. Damages that must be established as grave, in addition to being considered derived from the situation alleged. The injuries claimed must at least be proven through the rational principle of evidence, so it is not enough to allege the damage in those terms; rather, the circumstances must be accredited for it to be considered a damage and for that damage to be grave. In this sense, it must be emphasized that it is not enough to allege the existence of the damage or harm, grave, current, or potential, but it must be proven, which, as stated above, is a procedural burden that the interested party must assume to prove its claim, article 317 of the Código Procesal Civil. Regarding the delay in the main proceeding: This presupposition refers to the situation generated on the occasion of jurisdictional processes that, for their development and subsequent conclusion, require the carrying out of a series of acts through which not only due process is guaranteed, but also the issuance of a judgment that, even if it cannot be carried out promptly, is at least fair. Bringing a main proceeding to an end takes time, and it is precisely where protective relief acquires special relevance, because while that decision arrives, grave damages are being avoided, which, if they were to occur, would render the right claimed nugatory. With the entry into force of the Código Procesal Contencioso Administrativo, much has been done to resolve those processes that lasted years and even decades; today, however much efforts have been made, although processes last less, due to the benefits of oral proceedings, different stages must be completed, scheduling of hearings, in contrast to quite saturated dockets, etc., which cause processes to last a reasonable time, but time nonetheless. Regarding the bilaterality of periculum in mora: This designation alludes to the balancing of the competing interests, linked with the public interest that may need to be protected, versus the interest of third parties and, of course, the interest of the person who comes forward by means of a medida cautelar, the same having to be comparatively assessed, imposing the denial of the medida when the harm suffered or susceptible to being caused to the community or third parties is greater than that which the applicant for the medida could experience.- III) STRUCTURAL CHARACTERISTICS OF THE MEDIDA CAUTELAR: As previously stated, in addition to the already indicated presuppositions, it is necessary that the medida to be adopted structurally possesses the following characteristics: instrumentality, which means they have a marked relationship of accessoriness with the final judgment, since ultimately, they serve as an instrument to maintain the validity of the object of the proceeding in the terms presented; provisionality, which is nothing other than the fact that what is agreed upon regarding the protective matter will remain in force and conditioned upon what is resolved in the main proceeding. It should be noted that it can also be lifted or modified at any time, given the variability of the conditions that originally gave rise to it, or the one that was previously rejected may be adopted, as established in Article 29 of the Código Procesal Contencioso Administrativo, so its efficacy is exhausted at the moment the judgment on the merits is issued, or what is the same, it has effects subject to the provision adopted in the main proceeding; urgency to avoid the danger in delay, as well as summaria cognitio, that is, that this type of medida is adopted by virtue of an extremely summary cognition carried out by the jurisdictional body without prejudging the merits of the matter, which in no way could replace the stages of the main proceeding. Based on the foregoing normative framework of analysis and the elements required for granting a medida cautelar, we proceed to study the specific case.- IV) REGARDING THE CASE UNDER STUDY. Having studied the case file in light of the evidentiary elements and arguments put forward by both parties, this Office considers that the elements for issuing the medida cautelar requested by the representative of Corporación Ulsan S.A. do concur—in the terms to be stated. Let us see, regarding what is relevant for the resolution of the present protective application, what the representative of Corporación Ulsan S.A indicated; it informs that resolution N°811-19-TAA issued at ten hours twenty minutes on the twenty-seventh of May of the year two thousand nineteen, by the Tribunal Ambiental Administrativo within administrative file number 158-17-02-TAA, ordered, for what is relevant in this matter: - Orders, within a period of one month, to proceed with the demolition of all buildings located within the protection area of "spring 1 (naciente 1)" located at coordinates latitude 256,806 and longitude 488,775 as provided in Anexo 2 of the inspection report TAA-DT-080-18. - Orders FIDUCIARIA DE INVERSIÓN AHORRO COOCIQUE S.A. legal identification number CED12802 and CORPORACIÓN ULSAN S.A. legal identification number CED12800 to reforest the affected area and to carry out a reforestation plan. - Orders the Municipalidad de San Carlos the immediate execution of final resolution N°811-19-TAA of ten hours twenty minutes on the twenty-seventh of May of the year two thousand nineteen, issued by the Tribunal Ambiental Administrativo. It is the consideration of the plaintiff's representative that, based on the image it provides, the protection radius of the alleged spring (naciente), which it asserts was declared without technical studies, corresponds to 200 meters, in such a way that the buildings to be demolished not only include that of its represented party (held in trust property) but also includes municipal public roads (avenida 15, calles 6 and 8), the Escuela Cooperativa Urcozon, neighboring properties among which residential houses and businesses border, the Municipal swimming facility (balneario Municipal), among others. It informs that in 2016 the Poder Judicial initiated Contratación Directa N°2016CD-000024-PROVEX, its represented party was the successful bidder, where the object of said administrative contract was the leasing of premises to house the offices of the labor and civil procedural reform of San Carlos. It adds that on 18 May 2018, fiduciaria de inversión ahorro COOCIQUE S.A. and CORPORACIÓN ULSAN S.A. signed the Guarantee and Administration Trust Agreement (contrato de Fideicomiso de Garantía y Administración) N°103-17, where Cooperativa de Ahorro y Crédito de la Comunidad de Ciudad Quesada R.L (COOCIQUE, R.L) granted a loan to Corporación Ulsan S.A. for the approximate sum of $1,200,000 (one million two hundred thousand dollars), this for the purpose that, together with the resources of its represented party, said building would be constructed on the property registered under real folio number Placa2446, where the Poder Judicial offices of the Labor and Civil Procedural Reform of San Carlos would be housed. That the lease price set by the Poder Judicial in Contratación Directa N°2016CD-000024-PROVEX, corresponding to the monthly sum of $38,950 (thirty-eight thousand nine hundred fifty dollars), was fixed as part of the payment guarantee. That on 20 October 2017, the Tribunal Ambiental Administrativo, by means of resolution 1349-17.TAA, initiated an ordinary administrative proceeding against the companies Fiduciaria de Inversión Ahorro Coocique S.A. and Corporación Ulsan S.A. for the alleged affectation of a protection area of an undeclared spring (naciente) on the property registered under real folio number Placa2446. That on 21 June 2017, Mr. Ignacio Campos Rodríguez of the Tárcoles-Central Pacific Hydrological Unit of the San Ramón Office of the Dirección de Agua of the Ministerio de Ambiente y Energía, by means of inspection report DA-UHTPCOER-0078-2018, ordered that, despite it not being possible to affirmatively rule that the body of water called "sin nombre n°1" was a spring (naciente), it was going to be determined as such, and that the same was determined in Report DA-UHTPCOSR-0079-2018. It adds that on 12 October 2018, the Tribunal Ambiental Administrativo, by means of Minutes N°76, conducted an on-site visit; in said visit, again, it could not be proven that the body of water called in the process "sin nombre n°1" was indeed a spring (naciente), and that only field observations were made without Hydrogeological Studies. It states that on 27 May 2019, the Tribunal Ambiental Administrativo issued resolution N°311-19-TAA of ten hours twenty minutes on the twenty-seventh of May of the year two thousand nineteen and ordered, for what is relevant in this matter, that: "Within a period of one month, the demolition of all buildings located within the protection area of 'spring 1 (naciente 1)' must proceed, as provided in Anexo 2 of the inspection report TAA-DT-080-18 (visible from folio 72 to 74 reverse of the administrative file). Order FIDUCIARIA DE INVERSIÓN AHORRO COOCIQUE S.A. legal identification number CED12802 and CORPORACIÓN ULSAN S.A. legal identification number CED12800 to reforest the affected area and to carry out a reforestation plan. In the event that FIDUCIARIA DE INVERSIÓN AHORRO COOCIQUE S.A. and CORPORACIÓN ULSAN S.A. do not carry out said demolition or it is not possible for them to do so, the Municipalidad de San Carlos must, within a period of one month, in substitute execution of said resolution, demolish all buildings located within the protection area of 'spring 1 (naciente 1)'." They inform that on 27 June 2019, the Municipalidad de San Carlos was notified of resolution N°811-19-TAA, the one-month period beginning to run, meaning that on 27 July, at the latest, the demolition of all buildings within the protection zone of the body of water called "spring No. 1 (naciente n°1)" will commence. It adds that on 3 July 2019, the Departamento de Proveeduría del Poder Judicial issued Resolution Número 324-VEC-2019, by means of which the suspension of the contract for Contratación Directa N°2016CD-000024-PROVEX was ordered for up to 6 months from the notification of said resolution, this due to the issuance of final resolution N°811-19-TAA of the Tribunal Ambiental Administrativo, providing that the only way for the resumption of the administrative contract to occur would be because the administration or the awarded party guaranteed the use, enjoyment, and possession of the building. It informs that on 10 July 2019, Doctor Allan Astorga Gättgens, SETENA Environmental Consultant CI - O84 - 1998 and Geologist, C.G.C.R. No. 112, at the request of CORPORACIÓN ULSAN S.A. and under oath, rendered hydrogeological study AAG 10-01-2019/ 01 (SEE EVIDENCE N°4) where he determined that, scientifically, there was a high degree of probability that the spring (naciente) "spring No. 1 (naciente n°1)" contained in RESOLUCIÓN N°811-19-TAA is not actually one and that, rather, it is a sub-surface flow or water outlet from a small perched aquifer. It adds that hydrogeological information exists, by means of which the direction of groundwater movement is known, and it is concluded that the constructed building does not represent any type of affectation to the eventual spring (naciente) given that it is located to the north, that is, down hydraulic gradient. Considering all this, it concludes that the measure of demolishing the work is considered unnecessary and without due scientific support. Regarding the Appearance of Good Right, it considers that final resolution number 811-19-TAA, issued by the Tribunal Ambiental Administrativo, lacks technical-environmental foundation, since it affirms it was issued without Hydrogeological studies existing that would so declare and accredit it. It assures that its represented party will go to the ordinary proceeding to discuss technically and scientifically whether the body of water called "spring No. 1 (naciente n°1)" is configured as a permanent spring (naciente) or not, given that in the administrative file, which declares the spring (naciente), not even a hydrogeological study exists to support it. It considers that its theory of the case is reasonably motivated, and therefore they do not consider it reckless (temeraria). Regarding the Balancing of Competing Interests, in its consideration, those most harmed are all the owners of the properties and buildings that are within the protection radius of the alleged spring (naciente), including its represented party, and the Municipalidad de San Carlos, since it affirms that within the protection radius, the Municipal Swimming Facility (Balneario Municipal) and the public roads corresponding to Dirección2106 are located, and similarly, the "Escuela Cooperativa Urcozon" educational center, which, according to it, houses more than 300 students. And that equally, as the hydrogeological study indicates, currently said building (nearest to the body of water) does not represent a danger or affectation to the possible spring (naciente), and consequently, no current and potential environmental affectation. Regarding the Danger in Delay, it points out that this medida cautelar is of extreme necessity and urgency because resolution N°811-19-TAA orders the demolition of all buildings located within the protection radius of "spring N°1 (naciente N°1)." It adds that demolishing all the buildings within the protection radius undoubtedly implies a grave and widespread affectation, not only of its represented party's interests, but also those of all the neighbors and those of the municipal corporation, which according to sound rational criticism, properly the rules of logic and experience, leaving people homeless, demolishing an educational center (school), altering and demolishing public roads undoubtedly provokes a current, real, and objective danger, not only individual but also generalized. That not suspending the effects of the administrative act in question will result in the impossibility of housing the offices of the labor and civil procedural reform of San Carlos, an urgent matter for said judicial circuit, since according to Contratación Directa N°2016CD-000024-PROVEX, a public interest exists to be satisfied, because currently there are no offices for such purposes. It adds that, similarly, said administrative act will provoke a danger and grave damage in the particular sphere of its represented party, this because, if administrative act N°811-19-TAA—which it emphasizes lacks technical support—is executed by the Tribunal Ambiental and the Municipalidad de San Carlos, it will entail the demolition of a building whose value exceeds $4,000,000 (four million dollars), which it assures will imply a serious economic loss within its represented party's patrimony, given that said building was constructed with mixed resources, products of the private funds of its represented party and financing from COOCIQUE. It also assures that it will cause Contratación Directa N°2016CD-000024-PROVEX to be impossible to resume and that, on the contrary, said administrative contract will be terminated, which in turn, according to the third clause of the trust agreement (contrato de fideicomiso), constitutes the payment guarantee for the loan acquired by its represented party from Cooperativa de Ahorro y Crédito de la Comunidad de Ciudad Quesada R.L (COOCIQUE, R.L); thereby causing its represented party to fall into default and be subject to enforcement. In support of the foregoing, the representative of Corporación Ulsan S.A provides the following documentary evidence: "1. Guarantee and Administration Trust Agreement (Contrato de Fideicomiso de Garantía y Administración) N°103-17 where COOPERATIVA DE AHORRO Y CRÉDITO DE LA COMUNIDAD DE CIUDAD QUESADA R.L (COOCIQUE, R.L) granted a loan to CORPORACIÓN ULSAN S.A. for the approximate sum of $1,200,000 (ONE MILLION TWO HUNDRED THOUSAND DOLLARS). 2. Administrative file number 158-17-02-TAA of the TRIBUNAL AMBIENTAL ADMINISTRATIVO. 3. RESOLUCIÓN N° 324-VEC-2019 of the DEPARTAMENTO DE PROVEEDURÍA DEL PODER JUDICIAL. 4. Hydrogeological study AAG 10-01-2019/ 01 rendered by DR. ALLAN ASTORGA GÄTTGENS, SETENA Environmental Consultant CI - 084 - 1998 and Geologist, C.G.C.R. No.112. 5. Special Judicial Power of Attorney and legal status of CORPORACIÓN ULSAN." For its part, the State representative, regarding what is of interest for the resolution of this protective application, has indicated the following: It considers that resolution 811-19-TAA is in accordance with the law (principle of legality, Articles 11 of the Constitution and 11 of the LGAP) and is based on the technical opinion rendered by the competent bodies, such as the Dirección de Agua and SINAC. It emphasizes that during the administrative proceeding carried out in the Tribunal Ambiental Administrativo, all the facts and evidence offered by the technically competent bodies legally empowered to rule on whether or not a spring (naciente) exists were analyzed; consequently, a broad technical opinion exists—see administrative file 158-17-02-TAA—provided by both SINAC and the Dirección de Aguas, who conducted field inspections carried out at the site. It considers that the probability of success of the main lawsuit is not established or demonstrated, pointing out that even if this presupposition were considered accredited, it requests its rejection, considering that the presuppositions of danger in delay and balancing of competing interests are not met. Regarding the Danger in Delay, it considers that it is non-existent in this case, since the grave damage was not substantiated, nor was the urgency in adopting the requested medida cautelar demonstrated. The State representative finds it important to point out that the Código Procesal Contencioso Administrativo, in this particular presupposition (Art. 21 CPCA), and case law itself, have indicated that this damage must be accredited; it is not that its accreditation is left lax; the person seeking protective relief has the obligation to demonstrate the existence of this damage. It adds that it is not enough that the conduct produces an injury to the legal sphere of the person seeking justice, but this injury must be of special relevance, and that is its gravity. It is the consideration of the State representative that the plaintiff merely limited itself to giving a series of subjective assessments, since it did not provide any type of proof to accredit its claim. It affirms that the damage alleged regarding the non-housing of the Judicial offices is not due to the administrative action but rather to the illegal actions carried out by CORPORACION ULSAN S.A; a self-inflicted damage. It adds that, as can be inferred from the evidence provided by the applicant, its claim is not accredited.
The trust agreement was for the approximate sum of $1,200,000 dollars and not the $4,000,000 indicated without providing supporting evidence. It considers that the requirement of danger in delay is not met, and consequently the request for a precautionary measure must be rejected. Regarding the Balancing of Interests at Stake; it considers that the public interest of protecting the springs (nacientes) must prevail over the economic interest of the moving party; that the safeguarding of a healthy and ecologically balanced environment required by the Political Constitution, as well as the rational and sustainable use of natural resources, are superior public interests.
It adds that the precautionary principle in environmental matters or the in dubio pro natura principle implies that all actions of the public administration on environmentally sensitive matters be carried out with the appropriate zeal to avoid serious and irreversible risks and damages; which means that there is an obligation on the part of public authorities to adopt those measures aimed at avoiding, mitigating, or correcting the adverse effects on the environment generated by human activities or actions. It adds that the possible damage to the patrimonial sphere indicated by the plaintiff is a consequence of an unlawful situation or attitude of CORPORACIÓN ULSAN S.A. itself, which, knowingly aware of the legal limitations of its land due to the existence of springs (nacientes), decided to invade their protection area without respecting the restrictions required by the current legal system (No one can claim ignorance of the Law). It is the State representation’s consideration that for the arguments put forward, the public interest of protecting the permanent spring (naciente permanente) must prevail over the private interest of the moving party; consequently, it requests that this be so ordered and the precautionary measure be rejected. For all the foregoing, it seeks to have the precautionary petition rejected, but if the Court considers that the requested precautionary measure should be granted, it concomitantly requests the following: "(...) that upon granting the suspension of the effects of resolution 811-19-TAA, COORPORACIÓN ULSAN S.A. be ordered not to exercise any type of use of the buildings subject to the precautionary measure, that is, that the use of the infrastructure not be permitted, nor the entry or permanence of persons, and that the suspension of the effectiveness of contract 04217 be maintained. The foregoing, in accordance with the provisions of resolution 324-VEC-2019 of the Procurement Department of the Judicial Branch (plaintiff's evidence number 3), which made the resumption of contract 04217 conditional until it is demonstrated administratively or judicially that the premises will not be partially or totally demolished, that the use, enjoyment, and benefit of the same is guaranteed, and that this does not affect the protection range of protected water springs (nacientes de agua protegidas).(...)".
- V)CRITERION OF THIS JUDGE: As indicated above, for this Judge, the claim is in no way unreasonable or lacking in seriousness, such that it could not be addressed on the merits in a plenary proceeding. There are situations that, not being appropriate to address at this precautionary stage, will not be delved into deeply; however, they must be cited in support of this ruling. Both the administrative resolutions challenged here and the parties' statements are focused on defending their different positions. In this case, there is disagreement on the part of the representation of the plaintiff corporation, stating that the administration, without technical studies, declared a protection radius for an alleged spring (naciente), which would affect not only its represented party but also the Municipality of San Carlos itself, by including within the protection radius municipal public roads, an educational center called "Escuela Cooperativa Urcozon," neighboring properties such as dwelling houses and businesses, as well as the Municipal Baths, among others. It asserts that during the field visit, only on-site observations were made, without Hydrogeological studies. For the plaintiff, there is certainty that the constructed building does not represent any type of impact on the potential spring (naciente) given that it is located to the north, that is, down the hydraulic gradient, thereby considering that the measure to demolish the work is unnecessary and without proper scientific support. The foregoing statements are made based on the Sworn Declaration made on July 10, 2019, by Doctor Allan Astorga Gättgens, in his capacity as Environmental Consultant of SETENA CI-084-1998 and Geologist C.G.CR N°112, at the request of the plaintiff's representation. For the plaintiff's representation, its main action within the plenary proceeding will be to discuss technically and scientifically whether the body of water called "spring No. 1" (naciente n°1) constitutes a permanent spring (naciente permanente) or not, since it assures that in the administrative file declaring the spring (naciente), there is not even a hydrogeological study to support it. It points out with surprise that the officials involved in the administrative file declare a body of water as a spring (naciente) by "mere on-site visit observation," without even carrying out a hydrogeological study, aggravated by the fact that the demolition of all buildings located in the protection area is ordered through administrative channels. For its part, the State representation considers that in this case, within the administrative procedure carried out by the Administrative Environmental Tribunal, all the facts and evidence offered by the technically and legally competent bodies to determine whether or not a spring (naciente) exists were analyzed; therefore, in its view, there is ample technical criteria provided by both SINAC and the Water Directorate, who conducted field inspections at the site. It points out that within the administrative file, the plaintiff's representation did not provide evidence before the Administrative Environmental Tribunal to prove the nonexistence of environmental damage due to the invasion of the protection areas of the unnamed springs (nacientes) No. 1 and No. 2, as determined in the technical reports cited, which in its consideration are categorical in pointing out the change of conditions made to the springs (nacientes) due to earthworks (movimiento de tierra). For the State representation, in this case, the likelihood of success of the main claim is neither configured nor demonstrated. Now then, for this Court it is more than obvious that in this case there are totally opposing positions, these being precisely what must be addressed in the merits proceeding and not through a precautionary measure, which, as has been indicated, the particularity of this matter is perfectly reviewable in this channel; and through this, determine which of the positions is correct. It is premature at this procedural stage to consider whether the main cause, which the plaintiff's representation assures it will file, will be admissible or not, since determining whether in reality all these administrative provisions had all the technical and/or scientific backing to order not only the demolition of the structures but also the declaratory procedure of the springs (nacientes) itself, is precisely what the plaintiff's representation claims. Through this matter, the administrative conduct is being questioned, and the Administrative Contentious Court was created for that purpose: to review it, and determine in the respective proceeding if it is in accordance with the Legal System and was issued respecting or not each and every one of the rights of the corporation here represented (see Article 1 of the Administrative Contentious Procedure Code), but that is something that can only be determined in a plenary proceeding; no one, through a precautionary measure, could guarantee the outcome of the merits proceeding, since the legal technique, as well as the evidence that will support it, could even be different from that offered today; but what can be assured is that a jurisdictional body, in this case delegated to the Administrative Contentious Jurisdiction, can indeed hear this matter, and for that reason, the element or requirement analyzed must be approved. Added to this, we cannot set aside that the competence of this jurisdiction, derived both from what is established in Article 49 of the Constitution and from what is established in the Administrative Contentious Procedure Code, enables the exercise of full control over the legality of the administrative function, which implies declaring the legal non-conformity of those formal or material conducts that are contrary to the legality framework. The appearance of good law itself is a judgment of probabilities made by the Judge regarding the eventual outcome of the proceeding, which, being before a precautionary measure, and even more so one that is ante causam, as in the present case, it is premature to anticipate its admissibility or not, since, as already indicated, the arguments and proofs that will support the plenary cause could be different from those offered at this early stage. Moreover, not even at this point could the undersigned venture to cast doubt on this requirement, in application of the constitutional principle that guarantees that any person who feels affected by an administrative action may seek redress in this Jurisdiction, with access to Justice also being recognized as a fundamental right (Articles 41 and 49 of the Political Constitution). That said, and at least prima facie and without prejudging the matter, and without even determining the probabilities of success of the claim, the truth is that it could well be analyzed in the plenary proceeding; therefore, the analyzed requirement is deemed satisfied. Regarding the danger in delay, although with the entry into force of the Administrative Contentious Procedure Code, those proceedings that took years and even decades were largely solved, today, despite the efforts made, proceedings, although they take less time due to the benefits of orality, must still comply with different stages, scheduling against quite saturated agendas, etc., which means that proceedings take a shorter and reasonable time, but time nonetheless. For the plaintiff, the damage is imminent, pointing out that it concerns a construction whose value exceeds four million dollars, which it assures will be a serious millionaire loss within its represented party's patrimony. The State representation, regarding the value of the construction, affirms that the evidence provided by the moving party does not prove its claim, and that the trust agreement was for the approximate sum of one million two hundred thousand dollars ($1,200,000.00), and not the $4,000,000.00 indicated without providing evidence. Now, regarding the state position, it is essential to remember that the plaintiff has consistently pointed out that the investment in the construction in question was mixed, and where it reported and proved through the submitted trust agreement that the Savings and Credit Cooperative of the Community of Ciudad Quesada (COOCIQUE RL) granted it a loan for the approximate sum of $1,200,000 (one million two hundred thousand dollars) and that the building was constructed together with its represented party's own resources. Starting from the above, and if we refer to the evidence provided by the plaintiff's representation, identified as number CED12803, this corresponds to Resolution Number 324-VE-2019 of the Procurement Department of the Judicial Branch; in it, what is relevant for the analysis of this requirement, the following stands out: "(...) I.- Through Direct Contracting No. 20l6CD-000024-PROVEX. Contract No. Placa2447, the Contract for Lease of premises to house offices of the labor and civil reform of San Carlos was awarded to the company Corporación Ulsan S.A., legal ID CED12801°, for a monthly amount of $38,950.50.(...) (bold and underline are ours). Note that the rental contract awarded to the plaintiff company establishes a monthly amount of $38,950.50 (thirty-eight thousand nine hundred fifty dollars and fifty cents); which at today's exchange rate, on which this precautionary petition is being heard on the merits, represents the approximate sum of twenty-two million two hundred sixty-two thousand colones; a sum that obviously represents that the construction which the Judicial Branch intends to lease to house the required facilities is of very high value; if we recall, we are faced with an administrative determination that orders its demolition, and in that case, it is more than accurate to think that the materialization of the execution of the challenged administrative act does generate damage to the plaintiff, and of grave dimensions; and therefore, protectable through this type of petition, at least regarding the demolition of its construction. Now then, regardless of whether the construction and the administrative procedure are lawful or not —which would remain to be analyzed in the respective proceeding— in this case, caution must be exercised, as there is evidence that supports the fear of the plaintiff company's representation. With this evidence, it is clear that said administrative action, if executed, may probably cause an impact on its patrimony, which appears to be a work completely ready for the purpose for which it was built; therefore, serious damage is indeed produced in the patrimonial sphere of the party petitioning. It should be noted that the administrative conduct challenged by the plaintiff company's representation is a situation that will remain pending to be heard in the respective proceeding, and to determine therein which of the positions is correct; the plaintiff must take note that if today an impact on its patrimony has been determined, it is something different and totally independent from what is decided on the merits; since in the event the main claim is unfounded, it will have no other remedy than to assume the consequences of demolition, even if this affects its patrimony. That said, it is considered that in this case, not only prompt but also effective protection must be granted, regardless, for now, of what will be decided on the merits in the plenary proceeding; thus, the analyzed element is deemed satisfied. Having established the first two requirements, the decision falls on the balancing of the interests at stake and the impact on the public interest or that of interested third parties. To determine this third element, this judge resorts to a preliminary review of aspects such as the reasons for the demolition and its consequences. Regarding the reasons that motivated the demolition, this judge considers that although these are aspects assessable by an administration, represented in this case by the Administrative Environmental Tribunal, this authority does not see that this would cause an impact either to the public service provided or to the public interest. Obviously, if it is determined that we are in the presence of a permanent spring (naciente permanente), and that it is being affected by the construction carried out by the plaintiff —remembering that its removal from the impact assessment is also subject to challenge, since it is assured that the municipality's own assets are affected— the particular interest protected up to this point must necessarily be displaced by the public interest; but from the evidence brought to the record at this procedural stage, it is not entirely clear, and rather it appears that the controversy itself is precisely aimed at determining whether environmental regulations have been violated with the building, not only regarding the plaintiff's construction, but also a radius of two hundred meters, which as the plaintiff's representation itself has well indicated, could (which is not a matter for analysis in this cause) affect properties within that radius. Specifically regarding the possible environmental damage claimed by the State representation, it should be noted that through the resolution issued at four five p.m. on July twenty-fourth, two thousand nineteen; this Court admitted the presented petition as provisionalísima, ordering the immediate suspension of the effects of the administrative acts by which the demolition of the works was ordered; so a simple calculation results in approximately twenty-two days having elapsed since the execution of the demolition was suspended, and during all that time, apparently, no setback has occurred, nor any impact on the public interest; at least that is what could be presumed given the absence of any single piece of evidence in that sense to prove the contrary (Articles 29.1 of the Administrative Contentious Procedure Code and 41.1.2 of the Civil Procedure Code). Moreover, apparently the State representation itself would agree to postpone the execution of the demolition, conditioned on the non-disposal and non-use of the facilities, maintaining the effectiveness of contract 04217 suspended, the foregoing based on what is provided by resolution 324-VEC-2019 issued by the Procurement Department of the Judicial Branch (plaintiff's evidence number 3), which made the resumption of contract 04217 conditional until it is demonstrated administratively or judicially that the premises will not be partially or totally demolished, that the use, enjoyment, and benefit of the same is guaranteed, and that this does not affect the protection range of protected water springs (nacientes de agua protegidas). Having said the above, and until it is demonstrated in the jurisdictional venue which of the positions is correct, the scale on this occasion tips in favor of considering this requirement fulfilled. Thus, upon analyzing the parties' positions together, it is this judge's conclusion that the particular interest must prevail over the public interests or those of interested third parties; however, due to the particularity of the matter, and since the public interest in the protection and care of the environment is at stake, it is necessary that in the following section, the manner in which the suspension of the challenged administrative conduct is to be maintained be indicated, let us see:
- VI)INNOVATIVE ORDER AND RESOLUTION OF THE CASE: In accordance with numerals 20, 21, and 23 of the Administrative Contentious Procedure Code, it is ordered at this proceeding to keep suspended the effects of RESOLUTION NUMBER 811-19-TAA of ten twenty a.m. on May twenty-seventh, two thousand nineteen, issued by the Administrative Environmental Tribunal, within administrative file number 158-17-02-TAA. The foregoing for as long as necessary, and until the processing and resolution of the respective plenary proceeding, which the representation of COORPORACIÓN ULSAN S.A must file within a period of 15 days counted from the day following the notification of this resolution, and under this same number (19-004925-1027-CA), under warning that in case of omission, the precautionary measure decreed herein will be lifted and it will be condemned to pay the damages and losses caused, which will be settled through the judgment execution procedure. Now then, having analyzed the State representation's claim, and reviewed the evidence on record, it becomes necessary to condition this determination in the following sense. From the evidence provided by the plaintiff's representation and what has been evidenced from the records, there is obviously a need to suspend the materialization of the administrative act challenged herein, since it is aimed at the demolition of a work of great value, and due to its value, it would generate large income from rent for the plaintiff company's representation, and this is totally clear. However, in the absence of evidence in that sense, this Court could not evidence what the consequence for the plaintiff would be of not being able to use and therefore dispose of the constructions; well, there is no evidence of that. The impact that not being able to dispose of its facilities and not receiving the rent that the Judicial Branch is willing to recognize to house the required facilities, through the direct contracting awarded to the plaintiff company, will cause on the plaintiff company's finances is unknown. It is reiterated, the impact and grave damage of having to demolish those constructions is clear, and hence it was deemed that the precautionary requirements were met; but what is not clear, in the absence of evidence in that sense, is the impact of not being able to dispose of those facilities for the purpose of their construction. In this case, two specific situations must be analyzed. The first is that a possible environmental impact is being discussed due to the proximity of this construction to an alleged spring (naciente) (this, remembering, is a merits issue); but if it were determined in the plenary proceeding that such proximity indeed exists, the use of those facilities for the time necessary to resolve the main matter could cause a greater impact on the environment, which could not be permitted as a precautionary or preliminary measure (in any case, it is a merits issue). The second would be based on determination number 324-VEC-2019 of the Procurement Department of the Judicial Branch (which, remembering, is not part of this matter, since the State representation in this case represents the interests of the Administrative Environmental Tribunal and not the Judicial Branch); by means of which it clearly ordered and conditioned (for what is relevant) the Resumption of the contract, until it is demonstrated administratively or judicially that the premises will not be partially or totally demolished; which is obviously a merits issue, but that determination rules out that there is a need of extreme urgency on the part of the Judicial Branch for the occupancy of the facilities; it suffices to refer to resolution number 324-VEC-2019, where the suspension of the contract for six months is rather determined, which would rule out damage to the Judicial Branch as is sought to be portrayed; by affirming that it will cause the inability to house the offices of the labor and civil procedural reform of San Carlos, an urgent aspect for said judicial circuit. Thus, as an innovative precautionary measure, it is ordered —apart from suspending the demolition of the construction already decreed in the record— the duty of the plaintiff NOT to dispose of and/or use the buildings subject to the precautionary measure, meaning that they MAY NOT be occupied by any person or company, until the contrary is ordered on the merits in the respective plenary proceeding. In case of non-compliance with what is decreed herein, it will not only be sufficient cause to lift the precautionary measure decreed herein, but it will also constitute disobedience to authority, with the consequences that this entails, if determined.
- VII)ON COSTS: In this Court's consideration, the way the events occurred in the administrative venue gave the opportunity to the party represented herein to come to this jurisdictional venue in order to defend its rights and interests. Note that through a precautionary petition, it is not appropriate to analyze the merits of the matter, and consequently, whether the petitioning party is right or not is something that can only be determined in the main cause. However, and despite this, one cannot lose sight that in this precautionary petition, the fulfillment of the precautionary requirements has been determined as the basis; and within this it was determined that it has the appearance of good law necessary to resort to this avenue, in safeguarding its interests and rights, and hence it was deemed that the requirement of Appearance of Good Law was satisfied. Added to this, regarding the issue of costs in this type of petition, there are several pronouncements from the Administrative Contentious Court of Appeals, such that until there is a direction in a different sense, this Court considers that the foregoing pronouncement should be issued without a special award of costs, precisely due to the type of proceeding. (See, among others, RESOLUTION 009-TA-11, 010-TA-11. JUDGMENT No. 90 -2011 bis ADMINISTRATIVE CONTENTIOUS AND CIVIL TREASURY COURT OF APPEALS. Annex A of the Second Judicial Circuit of San José, Address01, at one thirty p.m. on March sixteenth, two thousand eleven). Thus, this matter is resolved without a special award of costs.
THEREFORE
In the terms to be stated, the precautionary petition filed is granted. It is ordered at this proceeding to keep suspended the effects of RESOLUTION NUMBER 811-19-TAA of ten twenty a.m. on May twenty-seventh, two thousand nineteen, issued by the Administrative Environmental Tribunal, within administrative file number 158-17-02-TAA; by which the demolition of the plaintiff company's constructions is ordered. Let the representation of CORPORACIÓN ULSAN S.A. take into consideration that in this matter, it has been determined to grant this precautionary petition, conditioned upon the issuance of an innovative precautionary measure, which, apart from maintaining the suspension of the demolition of the construction already decreed in the record, establishes its duty of NO disposal and/or use of the buildings subject to the precautionary measure, meaning that they MAY NOT be occupied by any person or company; which obviously includes the plaintiff company, until the contrary is ordered on the merits in the respective plenary proceeding. In case of non-compliance with what is decreed herein, it will not only be sufficient cause to lift the precautionary measure decreed herein, but it will also constitute disobedience to authority, with the consequences that this entails, if determined. Furthermore, the plaintiff's representation must take into consideration that according to the rules of Article 26, second paragraph of the Administrative Contentious Procedure Code, it must file the plenary claim within a period of 15 days, counted from the day following the notification of this resolution, and under this same number (19-004925-1027-CA), under the warning that in case of omission, the precautionary measure decreed herein will be lifted and it will be condemned to pay the damages and losses caused, which will be settled through the judgment execution procedure. This matter is resolved without a special award of costs. NOTIFY. Lic. Rodrigo Huertas Durán. Judge.- *6YQ6J02TVRY61* RODRIGO HUERTAS DURÁN - DECISION-MAKING JUDGE It is a faithful copy of the original - Taken from Nexus.PJ on: 21-02-2026 08:54:21.