Jorge Araya G.
José L. Chaves V.
Jorge Araya G.
6.- The legal requirements have been observed in the proceedings followed.
Drafted by Magistrate Araya García; and,
Considering:
I.- Preliminary matter. Before analyzing the merits of the matter, it must be clarified that, as of judgment number 2008-02545 of 8:55 a.m. on February 22, 2008, this Chamber has referred to the contentious-administrative jurisdiction, with some exceptions, those matters in which it is disputed whether the public administration has or has not complied with the deadlines set by the General Public Administration Act (articles 261 and 325) or sectoral laws for special administrative procedures, to resolve by final act an administrative procedure, initiated ex officio or at the request of a party, or to hear the applicable administrative appeals. Precisely, in this case, two scenarios for exception arise, as this involves a complaint regarding risk to integrity and environmental contamination, which is known to the respondent municipality and has not been resolved within a reasonable time by said authority. Having clarified the point, we proceed to resolve the specific situation raised in this amparo.
II.- Object of the appeal. The appellant indicates that, since July 2025, he brought to the attention of the Municipalidad de Oreamuno the existence of several dwellings built on the road without the corresponding permits, which generate various impacts on the neighbors of the sector. However, he alleges that, despite the fact that the municipality itself confirmed the illegality of said constructions through an inspection, more than 6 months have passed without administrative measures being adopted to resolve the reported situation.
III.- Proven facts. Of importance for the decision of this matter, the following facts are deemed duly proven:
1) On July 7, 2025, the petitioner together with other neighbors, filed an administrative proceeding before the Municipalidad de Oreamuno reporting nuisances, risks, and environmental impacts derived from several dwellings located on the edge of the road (see evidence provided).
2) On September 8, 2025, the Unidad Técnica de Gestión Vial of the respondent municipality, through official letter no. MUOR-AM-UTGV-372-2025, informed the petitioner that the matter would be referred to a road inspector to carry out an assessment regarding possible impacts on the right-of-way (derecho de vía) (see report rendered and evidence provided).
3) On October 16, 2025, the Unidad Técnica de Gestión Vial of the Municipalidad de Oreamuno, through official letter no. MUOR-AM-UTGV-458-2025, communicated to the petitioner that after the inspection carried out, it was confirmed that the conditions of the road are mainly due to constructions erected without municipal permits, for which reason the case was referred to the Departamento de Control y Desarrollo Urbano and brought to the attention of the Área Rectora de Salud de Oreamuno (see report rendered and evidence provided).
4) On December 19, 2025, officials of the respondent municipality, through the Dirección de Control Urbano, informed the appellant by email that all the reported buildings encroach upon the right-of-way (derecho de vía), are illegal, and there is no possibility of regularizing them, indicating that it is the responsibility of the Unidad Técnica de Gestión Vial to execute the pertinent corrective actions (see report rendered and evidence provided).
5) On January 23, 2026, officials from the Unidad Técnica de Gestión Vial and the Departamento de Desarrollo y Control Urbano of the Municipalidad de Oreamuno, together with the complaining neighbors, conducted a site visit on the street known as Chinchilla Vieja (see report rendered and evidence provided).
6) On January 27, 2026, the Municipalidad de Oreamuno, via email, communicated to the petitioner that his case was under study by the municipal technical team and that they were waiting for the corresponding report to determine how to proceed (see report rendered and evidence provided).
7) On February 9, 2026, the appellant filed this amparo appeal (see digital case file).
8) On March 6, 2026, the respondent authorities were notified of the resolution admitting this amparo proceeding (see notification records).
9) The Departamento de Desarrollo y Control Urbano of the respondent municipality, through official letter no. MUOR-AM-DCU-0058-2026, reported that there are approximately 55 dwellings built without a municipal permit on “Chinchilla Vieja” street, which encroach upon the right-of-way (derecho de vía) and cannot be legalized (see report rendered and evidence provided).
10) The Departamento de Desarrollo y Control Urbano of the Municipalidad de Oreamuno indicated that following the inspections carried out, the appropriate course of action is to notify the informal occupants so that they vacate voluntarily and, should the occupation persist, to proceed with demolition, recommending coordination with institutions such as IMAS, MIVAH, CONAPAM, and PANI due to the condition of social vulnerability of several of the affected families (see report rendered and evidence provided).
IV.- Unproven fact. Of importance for the decision of this matter, the following fact is deemed not proven:
Only) that the respondent municipality has proceeded to notify the informal occupants in order for them to voluntarily vacate the properties and, should the occupation continue, has warned about the eventual execution of demolition measures.
V.- On the specific case. In the sub examine, the appellant claims that the respondent municipality has not provided an effective solution to the problems arising from the construction of dwellings located at the edge of the road, a situation that generates nuisances and risks for the community. He indicates that, although in response to the request filed, the local government conducted on-site inspections and expressly determined that the houses in question are illegal and do not comply with applicable regulations, at the date on which he files for amparo, he has not perceived a concrete result nor the adoption of effective measures to correct the situation.
Now, having analyzed the case file, this Chamber has deemed it proven that the Municipalidad de Oreamuno attended to the request filed by the petitioner in a timely and proper manner, since there is evidence that it provided a timely response - as even the petitioner himself indicates in his filing brief -.
\n\nLikewise, it is evident that the respondent municipality carried out repeated inspections in the area where the illegal constructions were reported, even in coordination and company with the complainants themselves, and it was also verified that it referred the case to the competent municipal bodies and the Ministry of Health. It is in this context that the municipality's Department of Urban Development and Control (Departamento de Desarrollo y Control Urbano), through official communication no. MUOR-AM-DCU-0058-2026, reported the existence of approximately 55 dwellings built without municipal permits on the street called \"Chinchilla Vieja,\" which encroach upon the right-of-way (derecho de vía público) and, for that reason, are not eligible for legalization. The records also show that following the inspections, that department indicated that the proper course of action was to notify the informal occupants to voluntarily vacate the properties and, if the occupation persisted, to execute the corresponding demolition measures; additionally recommending coordination with other public institutions in view of the condition of social vulnerability affecting several of the affected families.\n\nNotwithstanding the foregoing, there is no evidence that the respondent municipality has proceeded to make such notifications, or that it has formally warned the informal occupants about the eventual execution of demolition measures in case of non-compliance. Consequently, it is clear that the respondent municipality has not adopted a definitive solution to the problem described—which involves an underlying allegation of environmental contamination—despite approximately 9 months having elapsed since the respective complaint was filed. It should be noted that the allegation regarding the risk and impact on the environment was not refuted in the report by the respondent party; therefore, this point is taken as proven, in application of the provisions of Article 45 of the Ley de la Jurisdicción Constitucional.\n\nThus, as this is a matter intrinsically linked to the enjoyment of a healthy environment, this Chamber upholds the claim, finding that the indicated omission contravenes the provisions of Article 50 of the Constitución Política. Therefore, the recourse is declared with merit.\n\nVI.- Now, it is especially relevant to warn the respondent municipal authorities that, if necessary, they must coordinate and manage the corresponding actions with the competent institutions, such as IMAS, MIVAH, CONAPAM, PANI, or any other that may be pertinent, given the conditions of vulnerability of the families involved, as was reported to this Chamber.\n\nVII.- Note by Magistrate Castillo Víquez, regarding prompt and complete administrative justice. I have supported this Court's thesis that when a claimant alleges a violation of the right to prompt and complete justice in administrative proceedings (justicia pronta y cumplida en sede administrativa), those who must hear the legal dispute are the Contentious-Administrative Tribunals (Tribunales de lo Contencioso-Administrativo) and not this Chamber. However, with the recent enactment of Law No. 9097, the Law for the Regulation of the Right of Petition (Ley de Regulación del Derecho de Petición), it has been established that this right is susceptible to judicial protection through the recurso de amparo established by Article 32 of the Ley de la Jurisdicción Constitucional, in relation to Article 27 of the Constitución Política de la República de Costa Rica, in cases where the petitioner considers that the material actions of the Administration, its administrative acts, or its response are affecting their fundamental rights. In my view, the recently enacted regulation does not imply that this Court must modify its case law line (línea jurisprudencial), as, based on Article 7 of its Law, it is exclusively responsible for defining its own competence. Therefore, except for those legal-constitutional disputes that this same Chamber has recognized as exceptional cases, which may be heard in this jurisdiction through the constitutional amparo process (proceso constitucional de garantía del amparo), in the remaining cases, and for the reasons this Court has given (judgment No. 2008-02545 of 8:55 a.m. on February 22, 2008), the competent authorities are the Judges of the contentious-administrative jurisdiction (jurisdicción de lo contencioso-administrativo), all of which is in accordance with Article 25 of the American Convention on Human Rights (Convención Americana sobre Derechos Humanos), the Law of the Constitution (values, principles, and norms), and the corresponding legal norms based on a logical, systemic, and teleological interpretation of the legal system (ordenamiento jurídico).\n\nVIII.- Note by Magistrate Salazar Alvarado. As a matter of principle, I believe that cases related to the activity or inactivity of the Public Administration in the repair, construction, modification, or demolition of any infrastructure work must be dismissed, as that omission constitutes a matter of legality, the discussion of which corresponds to the ordinary jurisdiction, where the interested person can debate their disagreements more broadly. However, when some violation of other fundamental rights protected in this constitutional jurisdiction derives from that administrative conduct (whether omissive or not), or when groups considered vulnerable are affected, I do proceed to hear the merits of the matter, as this situation constitutes an exception to my position on this topic, as is the case here, where the appellant party claims they are residents of the canton of Nandayure, specifically in the sector known as caserío sur de Cacao. They report that cantonal route No. 5-09-0004 is in poor condition, has a ballast surface, which directly affects their health due to the dust generated and the difficult access to basic essential services. They state that since November 2024 they have requested maintenance of the Cacao-Tacaní section from the respondent municipality; however, this has not been possible, to the detriment of their fundamental rights.\n\nIX.- Dissenting vote of Magistrate Garro Vargas. In the sub examine, the appellant party questions the existence of several dwellings built on the road without the corresponding permits, which cause various adverse effects on the residents of the sector.\n\nFurthermore, it questions that despite the municipality itself having verified the illegality of those constructions through an inspection, more than 6 months have elapsed without any administrative measures being adopted to resolve the reported situation.\n\nOn this matter, I dissent from the majority opinion, since I consider that before deciding what is legally proper, it is essential to join the National Council for the Older Adult (Consejo Nacional de la Persona Adulta Mayor), the Joint Institute for Social Aid (Instituto Mixto de Ayuda Social), the National Children's Trust (Patronato Nacional de la Infancia), and the Ministry of Housing and Human Settlements (Ministerio de Vivienda y Asentamientos Humanos) to the litis, given that the situation presented by the petitioner is excessively complex and does not depend exclusively on the Municipality of Oreamuno, which requires greater elements of knowledge for its due attention and resolution.\n\nBy virtue of the foregoing, I issue a dissenting vote and order that the processing of this recurso continue for the purpose of requesting reports from the indicated authorities.\n\nX.- Documentation provided to the expediente. The party is warned that, if any paper document has been provided, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device, or one produced by new technologies, these must be removed from the office within a maximum period of 30 working days counted from the notification of this judgment. Otherwise, any material not removed within this period will be destroyed, in accordance with the provisions of the \"Reglamento sobre Expediente Electrónico ante el Poder Judicial\", approved by the Corte Plena in session No. 27-11 of August 22, 2011, article XXVI and published in the Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session No. 43-12 held on May 3, 2012, article LXXXI.\n\nPor tanto:\n\nThe recurso is declared with merit. Consequently, Erick Mauricio Jiménez Valverde, in his capacity as mayor, and Carlos Núñez Castro, in his capacity as director of the Unidad Técnica de Gestión Vial, both of the Municipality of Oreamuno, or whoever holds those positions in their stead, are ordered to carry out, in a coordinated manner, the actions within the scope of their competences to provide a definitive solution to the problem reported by the petitioner, and if necessary, they must coordinate and manage the corresponding actions with the competent institutions, in consideration of the conditions of vulnerability of the families involved, all the foregoing, within the non-extendable period of SIX MONTHS, counted from the notification of this judgment. The respondent authorities are warned that, in accordance with the provisions of article 71 of the Ley de la Jurisdicción Constitucional, a prison sentence of three months to two years, or a fine of twenty to sixty days, will be imposed on anyone who receives an order that must be complied with or enforced, issued within an amparo recurso, and does not comply with it or does not enforce it, provided that the crime is not more severely penalized. The Municipality of Oreamuno is ordered to pay the costs, damages, and losses caused by the facts serving as grounds for this declaration, which will be liquidated in the enforcement of judgment phase of the contentious-administrative proceedings. Magistrate Castillo records a note. Magistrate Salazar Alvarado records a note. Magistrate Garro Vargas issues a dissenting vote and orders that the processing of the process continue. Notifíquese.\n\nPresident\n\n| Fernando Castillo V.
Jorge Araya G.