Demarcation certification for Rincón pool project annulled
By John McPhaul
jpmcphaul@gmail.com
Interim Natural and Environmental Resources (DNER) Secretary Anaís Rodríguez Vega on Tuesday accepted the report of an examining officer and declared “null ab initio” (from the beginning) the certification of demarcation of the maritime-terrestrial zone granted to the Sol y Playa condominium in Rincón in November 2020 .
“I have evaluated the administrative file very carefully and decided to accept the report of the examining officer, who recommends declaring null the certification of demarcation of the maritime-terrestrial zone issued in November 2020 by this agency,” Rodríguez Vega said in a written statement. “I must reiterate that the matter of the Sol y Playa condominium had several incidents in general, two of which were within the jurisdiction of the DNER, which are: the protection of wildlife, already resolved, and the contestation of the demarcation, which we resolve with this administrative resolution. The aspect of construction permits is the jurisdiction of the Permits Management Office and the Planning Board, which was resolved in court.”
The case arose through a complaint put before the DNER on May 17, 2021, which challenged the demarcation under Regulation 4860 of the environmental agency (Regulation for the use, surveillance, conservation and administration of territorial waters, submerged land under them and the maritime-terrestrial zone). The complainant alleged that the approved demarcation did not comply with the applicable legal provisions. After a process of administrative hearings during 2021 and 2022, the report of the examining officer was produced, which was received Tuesday by Rodríguez Vega.
According to that report, the DNER did not comply in a timely manner with the procedural requirement to publish on its internet portal, as required by Regulation 4860 in section 3.1 (Demarcation of the maritime-terrestrial zone), the information required in the demarcation request and the term for citizens to present information or to issue comments. The certification of the demarcation issued by the DNER and the term that citizens have to offer information, issue comments or file an action to challenge the demarcation before the agency were not notified in a timely manner through that electronic portal.
The demarcation request of Dec. 6, 2019 was published on the portal on Aug. 3, 2021. Meanwhile, the demarcation certification of Nov. 17, 2020 was published on the portal on Aug. 4, 2021.
“Such non-compliance makes the process followed for the certification of the demarcation erroneous and defective,” the examining officer concluded in the report.
The Uniform Administrative Procedure Law allows the party affected by the DNER determination to request reconsideration of the resolution and, if the agency upholds its ruling, the party may go to the Court of Appeals for review. Meanwhile, any interested party can start a new demarcation process.