8488 provides that risk management policy constitutes a cross-cutting axis of the work of the Costa Rican State; it articulates instruments, programs, and public resources in ordinary and extraordinary, institutional and sectoral actions aimed at preventing the occurrence of disasters and addressing emergencies in all their phases. Every national development policy must incorporate both the elements necessary for an adequate diagnosis of risk and susceptibility to disaster impact, as well as the management axes that allow for their control.
The National Risk Management Plan 2010-2015, approved by this Board of Directors in October 2009, is the strategic planning instrument for the application of the policy.
I.-On natural hazards (amenazas naturales) in Costa Rica. The Costa Rican territory shows evidence of the presence of countless and uncontrollable hazards, mainly of geological and hydrometeorological origin. The exposure of human settlements and infrastructure to the effects of these hazards has been increasing, as the population that settles in zones of recognized danger throughout the national territory grows. As a recent example, the study called "Analysis of the Current Risk of the Water Sector of Costa Rica in the Face of Climate Change" (Análisis del Riesgo Actual del Sector Hídrico de Costa Rica ante el Cambio Climático), developed by the National Meteorological Institute (IMN) with support from MINAET and UNDP, concludes that "given that the perspective is that the hazard will exceed current conditions in the near future, the risk condition will continue to grow if adequate strategies are not designed to adapt societies and their relationships to future conditions of extreme climates. (.) With current hazard conditions, the danger is already imminent." For decades, the National Commission for Risk Prevention and Emergency Response (CNE) has issued numerous technical reports and studies on natural hazards and risks, prepared by in-house specialists, and by scientists and experts who make up the Technical Advisory Committees, as well as compiled and disseminated research carried out by scientific and academic entities. This information has been made available and delivered to institutions, local governments, and the general public, including access to hazard zone maps in all cantons through its Web page, and in printed and electronic form.
II.-On responsibility in prevention. Based on the provisions of Law No. 8488, in its Articles 3, 8, and 25, all State institutions, primarily including the Municipalities, have the imperative mandate to prevent disasters and, in particular, local governments must incorporate prevention as a component of urban development projects.
III.-On the powers and responsibilities of local government in territorial planning (ordenamiento territorial). Deriving directly from Article 169 of the Political Constitution, the Municipal Code, the Urban Planning Law, the Construction Law, and related regulations grant municipalities the absolute and exclusive responsibility to plan the territory under their jurisdiction. This unavoidable duty has been expanded upon in various criteria of the Attorney General's Office (Procuraduría General de la República), among them, C-093-2007 of March 27, 2007, C-020-2009 of January 29, 2009, C-118-2009 of May 4, 2009, C-155-2009 of June 1, 2009, C-091-2010 of May 3, 2010, and several more in the same vein. The Constitutional Chamber (Sala Constitucional) has ratified this responsibility, in resolutions such as numbers 2153-93, 5305-93, 6706-93, 4205-96, 2000-431, 2000-06653, 2001-07485, 2002-01220, 2002-05996, 2002-07751, 2003-11397, 2004-1915, 2004-14404, 2004-01915, 2004-09439, 2005-04002, and 2005-07516, among many. In this regard, the jurist Eduardo Ortiz Ortiz, cited in opinion C-032-98 of February 25, 1998, of the Attorney General's Office, has pointed out:
"Municipal competence to issue urban plans comes from the law, since it covers matters constitutionally reserved to it, but it also has a constitutional basis, since it is a local matter. This means that the law cannot make the delegation except to the Municipality and that a law that did the contrary and authorized, for example, the Executive Branch, would be unconstitutional, for violating municipal autonomy." The highlighting is not from the original.
Additionally, the Administrative and Civil Treasury Litigation Court (Tribunal de lo Contencioso Administrativo y Civil de Hacienda) has issued rulings consistent with the position of the Attorney General's Office, such as No. 128-2008 at 10:30 a.m. on March 7, 2008, No. 209-2011, at two thirty p.m. on June sixteenth, two thousand eleven, and No. 124-2011, at nine fifty a.m. on April fifteenth, two thousand eleven, among many others, emphasizing the absolute responsibility of local governments regarding territorial planning.
It is the duty of the municipal government, therefore, to guarantee, through planning and the exercise of police power, that urban development addresses criteria of safety, health, and environmental sustainability. The foregoing, in protection of the rights of citizens.
IV.-On municipal action in cases of high risk and imminent danger. As has been validated by the Constitutional Chamber, the technical reports of the CNE contain recommendations that must be mandatorily followed by local governments and the institutions involved; the Ministry of Health has powers granted by the General Health Law (ruling No. 5915 of 2008, among others) for the declaration of uninhabitability (inhabitabilidad) of dwellings in high-risk zones, as well as to order the eviction and demolition of said buildings, and it is the responsibility of the local government to act accordingly, using the competencies extensively discussed in the previous point, with respect to its responsibility regarding territorial planning and guaranteeing safe living conditions for the residents of the canton. Additionally, the mandate of IMAS and BANHVI is to seek, respectively, temporary and definitive housing solutions for the families that must be relocated. Likewise, in attention to the fulfillment of such mandates, the Ministry of Public Security must collaborate in eviction processes and any other in which its participation is necessary, by virtue of the mandate in protection of the protected legal interest.
The reports issued by specialized officials of the National Commission for Risk Prevention and Emergency Response (CNE), have a binding technical nature (carácter técnico vinculante) for the institutions to whom the recommendations are directed, and in the same way, the studies developed by experts from the institutions that make up the Technical Advisory Committees of the CNE, based on Article 14, subsection c) of the aforementioned Law No. 8488, which indicates as an ordinary competence of the CNE to "issue binding resolutions (resoluciones vinculantes) on situations of risk, disasters, and imminent danger, based on technical and scientific criteria, aimed at guiding regulation and control actions for their effective prevention and management, which regulate or provide for their effective compliance by State institutions, the private sector, and the population in general." The highlighting is not from the original. This has been recognized and endorsed by the Constitutional Chamber in repeated rulings, such as No. 16389-2010, reiterated and expanded in No. 1671-2009, which states:
"In that sense, it is clear that in the particular case, the competence of the Commission lies in carrying out the corresponding inspections and recommendations to the respondent Municipality, which are of a binding nature." Furthermore: it is an unavoidable duty of the Municipal Mayor to comply with the recommendations rendered in the technical reports prepared by the officials of the CNE, as also specified by the Constitutional Chamber in resolution No. 12818 of 2009:
"Thus, the Chamber considers reprehensible, from the point of view of the right to life and a healthy environment, that despite the fact that the National Commission for Risk Prevention and Emergency Response clearly indicates that there is currently a landslide problem that threatens the property of the petitioner and other homes located in the sector; from the report rendered to the Chamber by the Municipality of . it is evident that to date they have not undertaken any mitigation works indicated by the National Emergency Commission, and the Municipality is the competent and obligated body to comply with the foregoing in accordance with the legal system. The foregoing, due to the obligation of local corporations to verify that the constructions built in the canton remain within the guidelines authorized by them (Articles 1, 87, and 88 of the Construction Law), which includes the health and safety aspect, which allows concluding the responsibility of said entity for the violation of the fundamental right of the petitioner and their neighbors to life - threatened by landslides. (.) The Mayor of the Municipality of ., or whoever holds office, is ordered to provide what is necessary so that the recommendations made in the technical report of the National Commission for Risk Prevention and Emergency Response, No. DPM-INF-.-2009, are fulfilled, within a period of three months, counted from the notification of this ruling." The highlighting is not from the original.
By virtue that some municipalities, such as Santa Ana, have consulted this Board of Directors on how to carry out public order measures for the eviction of areas of recognized risk and relocation of families in danger due to natural hazards, all Local Governments and particularly this Municipality are reminded that from resolution No. 12485-2010 of the Constitutional Chamber, the procedure that must be followed for a local government to act responsibly and in the exercise of its competencies, in compliance with recommendations rendered in technical reports of the CNE, is extracted. Coordination is required with the institutions in charge of social aspects for the temporary and definitive relocation of the affected families and their safe process. The sequence that must be followed is as follows:
1. Issuance or compilation of technical reports from the CNE, considered by the Constitutional Chamber as binding in nature, as explained supra, and specialized technical reports from institutions that are members of the Technical Advisory Committees of the CNE, or promoted and accepted by the CNE.
2. Health orders of eviction and demolition, with declaration of uninhabitability, issued by the Ministry of Health, based on Articles 320 and 321 of the General Health Law.
3. Actions coordinated by the Municipal Mayor with IMAS and BANHVI for the search for temporary and permanent solutions for the evicted families, as appropriate, and based on the current requirements.
4. The demolition of the homes in danger must be the responsibility of the respective Municipality, which must protect the lands (resguardar los terrenos) so that they are not invaded again.
5. Regulatory Plans must incorporate the maximum restriction on the use of these zones for residential purposes or buildings in general.
6. In addition to the foregoing, each municipality must issue the pertinent and necessary instructions, in order not to grant construction permits within the areas determined as high risk, remaining vigilant of this compliance both by the administration and by the residents of the community.
Based on the considerations made and legal citations that support them, the Board of Directors of the National Commission for Risk Prevention and Emergency Response Agrees:
Agreement No. 0443-2011:
a. Recommend to all Mayors of the country:
i. That in accordance with the duties and powers imposed upon them by the Political Constitution in its Articles 50 and 169, the Municipal Code, the Urban Planning Law, the Construction Law, the Organic Environmental Law, Article 33 of the Forest Law (Ley Forestal), and related regulations, the General Health Law, and the extensive jurisprudence on the subject, they proceed immediately with the eviction of the occupants of zones of recognized risk and imminent danger, as well as to demolish the buildings located therein, and to monitor that they are not invaded again by human settlements, applying the procedural sequence cited in Considering IV, which is extracted from resolution No. 12485-2010 of the Constitutional Chamber.
ii. That due to the binding nature that the Constitutional Chamber confers upon them, they immediately implement the recommendations that the technicians of the CNE and academic institutions have repeatedly provided them over many years and that are known to them, on concrete and timely actions to safeguard human life in zones of recognized risk and imminent danger. The studies and technical recommendations that have been historically issued in each case will be made available to the municipalities at the CNE offices.
The Internal Audit Offices and the Municipal Councils must ensure compliance with these provisions. Disobedience will be considered non-compliance with duties, and must be brought by the Internal Audit Offices to the attention of the corresponding authority.
b. Request the Ministry of Decentralization (Ministerio de Descentralización) to urgently convene an informational activity on this topic and procedure, directed at all Mayors, within the framework of the Plan for Strengthening Local Governments and Promoting Decentralization and Local Development Processes (Plan de Fortalecimiento a los Gobiernos Locales e Impulso a los Procesos de Descentralización y Desarrollo Local), in the "Risk Management" (Gestión del Riesgo) component, promoted by said Ministry. Said activity must be held within the framework of the III National Risk Management Forum, in the month of November.
c. Inform the Minister of Housing and Human Settlements of these measures, who leads the Territorial Planning Axis of the National Development Plan 2010-2014, and likewise the Minister of Planning and Economic Policy, for what corresponds.
d. Formally communicate this Agreement to all Mayors, and to the Office of the Ombudsman (Defensoría de los Habitantes).
e. Publish this Agreement and the synthesis map of natural hazards of the country (available on the Web page, www.cne.go.cr) in the official gazette and in a newspaper of national circulation.
(Note from Sinalevi: The present map was extracted from the website of the National Emergency Commission, and is transcribed below:)
Unanimous and firm agreement.-