The subject of regulation of this Directive finds its basis in Article 40 of the Urban Planning Law No. 4240, in the legitimate exercise of the regulatory authority held by the Municipalities (Article 169 of the Political Constitution, Article 4, subsection a of the Municipal Code), through which each Local Government can regulate internally, in order to define more clearly under what circumstances the percentage of land designated for public use resulting from subdivisions (fraccionamientos) must be ceded free of charge in favor of the Municipality of Nicoya.
Based on the foregoing, this Directive is issued to the personnel under the DPTSA involved in the aforementioned matter, so that from the date of Publication of this Directive:
1- Municipal approvals (Visados municipales) under articles 33 and 34 of Law 4240 will be issued only for simple subdivisions (fraccionamientos simples), which are not required to cede 10% of the area to be subdivided for green zones or communal use areas.
2- Subdivisions fronting on an easement (servidumbre) of passage of 3.00 m to 6.00 m in width, 60 m maximum length, and providing access to a maximum of 6 lots, will be considered simple subdivisions (fraccionamientos simples), provided that:
2.1 There are no two contiguous easements (servidumbres) of passage on the same property.
2.2 There are no more than two easements on the same property.
3- For the purposes of applying Article 79 of the Regulation to the National Cadastre Law and Article II.2.1 of the INVU Regulation for the National Control of Subdivisions and Developments, the following shall be understood as exceptions and qualified cases:
3.1 Judicial Rulings 3.2 The easement (servidumbre) of passage is registered and described in the registry entry of the servient tenement (DGJ-0124-08-2018).
3.3 The interested party or the responsible professional proves that the property is landlocked (enclavado) (i.e., has no direct access to a public road). Provide a master plan or topographic survey signed by the professional.
3.4 The interested party or the responsible professional proves that it is impossible to subdivide a property with adequate access due to topographic impediments, slope, or restrictions under the Forestry Law (Ley Forestal) that limit the effective or usable frontage to the public road. Provide a topographic survey signed by the professional.
3.5 The interested party or the responsible professional proves that it is impossible to subdivide a property with adequate access, due to its shape and dimensions, for failing to subdivide more than one lot fronting a public road with a front-to-depth ratio of 1/7 (Article III.3.2.5 of the INVU Regulation for the National Control of Subdivisions and Developments). Provide a sketch signed by the professional.
3.6 For any other cause not included in this Directive, for its study, the interested party or the responsible professional must provide a sketch and/or detailed topographic survey, as well as a study of cadastral and registry records.
3.7 It will be used preferably when there are existing constructions or buildings.
In all of the above cases, the note "for single-family use" must be indicated on the body of the plan being processed.
4-Special cases for access via an easement (servidumbre) of passage or agricultural easement for ASADAS or others, for rural aqueduct uses, will be analyzed, provided that the document being processed has a declaration of public interest by the Municipal Council and Decree of Drought No. 41852-MP-MAG.
(Thus amended the preceding point by Directive N° 0011-03-2020 and published in La Gaceta No. 63 of March 28, 2020) 5- The Municipality of Nicoya establishes that the 10% of the area of the parent property shall not be required:
5.1 In the case of simple subdivisions (fraccionamientos simples) fronting an existing public road, understood as those subdivisions in which no more than ten (10) lots, each with an area less than 5000 m2, result from a single property.
5.2 In subdivisions of lots with an area of 5000 m2 or more.
5.3 In Districts or areas not subject to urban development control.
Regarding the public area to be ceded, the following is established:
- a)It must be located fronting a public road, unless it is demonstrated that there is a technical or legal impossibility of locating it with adequate access to existing public roads.
- b)It must have a minimum frontage onto a public road of 6.00 m, except for an access alley of 3 m by 30 m or 4 m by 40 m.
- c)Its distance to the farthest lot shall not exceed 300 m.
- d)It must not have restrictions under Forestry Law 7575 Article 33 and must not exceed a 15% slope.
Transitory Provision I: This directive shall apply to those cases filed with the Municipality as of the year 2015, regarding proceedings for a use application or land use certificate, plan approval (visado de planos), and municipal construction license (building permit).
Transitory Provision II: If any pending or resolved proceeding is found, these must be initiated again (new proceeding) in order to be assessed and to rectify any non-observance carried out at the municipal level, by means of this directive.
Transitory Provision III: In the event of filing a proceeding for the granting of a use or land use certificate, plan approvals (visados de planos), or building, remodeling, or reconstruction permits, and where an administrative warning (advertencia administrativa) exists on the property concerned by said actions, the approval of these actions within the context of this directive is conditioned upon the submission by the interested party of the respective resolution from the Administrative Registry Tribunal, demonstrating the ineffectiveness of said administrative warning.
This Directive repeals and replaces, for all purposes, Directive 01-DPTSA-2018 and DPTSA-36-2018 and any other Directive concerning this matter.