“Regarding the issue of standing (legitimación) and how the plaintiffs use the concept of ‘members (agremiados)’ and that could lead one to understand that their action is aimed at protecting corporate interests, the Chamber stated in judgment number 07155-00 of 14:56 hours on August 16, 2000:
“Considering: I.- Purpose of the action.
This action is brought to declare the unconstitutionality of articles 29, 31, 34, first paragraph of article 45, 46, 48, 52, and 57 of Law number 2762 of June twenty-first, nineteen sixty-one and its amendments, which is the Law on the Regime of Relations between Coffee Producers, Processors, and Exporters; article 35 of Executive Decree number 17013-MEC of May fifth, nineteen eighty-six, which is the Regulation to the Law on the Regime of Relations between Coffee Producers, Processors, and Exporters; the first paragraph of article 9 of Law number 7770 of April twenty-fourth, nineteen ninety-eight, which is the Law Creating the National Coffee Stabilization Fund; and articles 27 and second paragraph of article 29 of the Income Tax Law, considering them contrary to articles 33, 40, 45, 46, and subsection 13 of article 121 of the Political Constitution.-
II.- Regarding the standing (legitimación) to file the action.
The plaintiffs Alberto Julián Esquivel Prestinary and Adolfo Esquivel Pacheco, in their capacity as President—the former—and Vice President—the latter—of the Association for the Development, Improvement, and Defense of National Coffee Growing (Asociación para el Desarrollo, Mejoramiento y Defensa de la Caficultura Nacional), base the standing (legitimación) held by their represented entity to bring this unconstitutionality action, noting that the Association they represent holds a corporate interest, and therefore, under the terms established in article 75 of the Law of Constitutional Jurisdiction, it has standing to sue directly in this venue. That is, they come alleging ownership of a collective interest derived from being agents of the aforementioned association. In this regard, the case law of this Chamber previously determined that corporate entities (entes corporativos) were authorized to directly request a declaration of unconstitutionality of a rule when it directly affected the sphere of action of the entity and its members. The collective interest would lie in the fact that the entity was naturally formed to defend a right or interest that was harmed by the challenged rule. For purposes of the admissibility of the Unconstitutionality Action, it did not matter that the rule might directly affect the rights of the members (agremiados) and that, therefore, they were authorized to go before the Constitutional Controller (Contralor de Constitucionalidad), albeit through the indirect procedure, by way of exception. However, said case law is no longer valid today. A change in case law occurred starting with judgment number 6433-98 of ten hours thirty-three minutes on September fourth, nineteen ninety-eight. In application of this judgment, resolution number 01830-99, of sixteen hours twelve minutes on March tenth, nineteen ninety-nine, was issued, considering that when the challenged regulatory provision is intended to materialize in numerous and diverse cases of application, which directly affect the legal sphere of individuals, standing (legitimación) must be established based on the first paragraph of article 75 of the Law of Constitutional Jurisdiction: ‘…Recently, the Chamber has clarified the scope of the provisions in the first two paragraphs of article 75 of the Law of Constitutional Jurisdiction and has noted that when the regulatory provision challenged in an unconstitutionality action is intended to materialize in numerous and diverse cases of application that directly affect the legal sphere of singular persons, such that they may give rise to claims in administrative or jurisdictional venues, from which unconstitutionality actions can be brought against them, the assumptions of the second paragraph of the indicated article do not apply. That is, when the second paragraph of article 75 ibidem indicates that a prior case pending resolution is not necessary to bring an unconstitutionality action, and that—consequently—one can resort to direct standing (legitimación) based on a diffuse or collective interest, it refers to the scenario where “by the nature of the matter there is no individual or direct harm,” that is, the hypothesis where, given the matter regulated by the challenged provision, it is not possible to obtain a justiciable assumption of singular and concrete application. Hence, a pending case for resolution is necessary to bring the unconstitutionality action when it is foreseeable that the justiciable assumption of singular and concrete application will occur, given the nature of the challenged law. This was expressly stated in judgment No. 6433-98 of 10:33 hours on September 4, 1998, and justifies that standing based on the three assumptions established in the second paragraph of article 75 of the indicated Law cannot be admitted, namely, that there is no possibility of individual and direct harm, that the defense of diffuse interests or those concerning the community as a whole is held, when there is a possibility that upon being materialized, the law produces individualizable effects on specific persons who are in a position to bring claims based on which the unconstitutionality action can be filed. Tax matters, almost as a general rule, are capable of producing a concrete, identifiable application, on specific persons who are authorized to bring an administrative or judicial claim, thus securing the pending case for resolution, the necessary support for the unconstitutionality action…’ In accordance with this new line of case law, in matters where interested parties have the open possibility of going before the Constitutional Controller (Contralor de Constitucionalidad) through the exception procedure, they cannot excuse themselves by claiming ownership of a collective interest and, therefore, in an association or corporation to which they belong so that it can go directly before the Chamber. The foregoing because upon materializing, the law produces individualizable effects on specific persons who are in a position to bring claims and thus access the constitutional jurisdiction. In the present matter, that potential of the law to produce individualizable effects is evident, which is proven by the fact that in relation to some of the challenged provisions, the existence of an administrative interpretation is alleged (which implies the materialization of the rule), erroneous application of other rules is asserted, and, furthermore, provisions of a tax nature are challenged that will be applied to the individually considered taxpayer, and not to the corporate entity. Considering the foregoing, it must be concluded that the circumstance that the Association for the Development, Improvement, and Defense of Coffee Growing (Asociación para el Desarrollo, Mejoramiento y Defensa de la Caficultura) has among its purposes the defense of the economic and social interests of coffee producers, processors, and exporters (see folio 173 of the case file), does not empower it to go directly before the Constitutional Chamber, alleging ownership of a collective interest. For the reasons stated, this action is inadmissible and must be so declared.” It is evident, then, that these case law precedents are applicable to the specific case, and from the perspective of what the first paragraph of article 75 of the Law of Constitutional Jurisdiction provides, the action is improper.”
(Judgment 2000-11033 of thirteen hours fifty-seven minutes on December thirteenth, two thousand.)
The plaintiff acting on behalf of the company “Mecue Fcjm S. A.”, for its part, does have standing (legitimación) to bring the action, in accordance with the provisions of the first paragraph of article 75 of the Law of Constitutional Jurisdiction, given that it has a base matter pending resolution, which is the amparo appeal processed under case file number 01-003373-0007-CO where, by means of the resolution of fifteen hours ten minutes on April eighteenth, two thousand one, it was granted a period to file the action.
II.- Purpose of the challenge.
Articles 51 to 67 of Chapter IX of the Regulating Plan of the Canton of Moravia, published in Gazette number 162 of August twenty-fourth, two thousand, are challenged. Said rules state:
“Article 51. Scope. The installation of advertisements, signs, posters, or notices on the exterior of buildings in the canton of Moravia shall be governed by this Regulation.
Article 52. Licenses. To place or affix advertisements, signs, posters, or notices, a license must be requested from the Municipality. The license shall be requested by the owner of the structure on which the advertisement is to be affixed, and with the consent of the owner of the property where the structure is placed, when applicable.
The owner of the business license (patente) for the trade that will be advertised by the sign for which the license is requested, and the property owner, must be up to date in the payment of taxes, contributions, and service payments to the Municipality.
The Municipality has the power to limit the surface area that an advertisement or a set of advertisements will occupy on a facade, or to disallow its placement.
Article 53. Technical Requirements: When the installation of the advertisement necessitates the use of special structures of iron, wood, or any other acceptable material, a plan thereof must be submitted, as well as the necessary drawings to assess the manner in which it will be installed and the calculations related to its stability. These drawings shall be made on 45-centimeter sheets. This plan must include the following details:
Outline of the facades and floor plan of the building where the advertisement will be installed, clearly showing, with the necessary dimensions, its position.
Detail of the advertisement and the structure supporting it, as well as the manner in which it will be attached to the building or land.
Site plan of the building on which the advertisement will be installed.
In the lower right corner, a title indicating:
Name of the property owner.
Name of the advertisement owner.
Name and signature of the responsible engineer or expert who has made the design. Article 54.- Application and payment for license: Every license application must be submitted in writing using a form that must be collected at the Business License Office (Oficina de Patentes) and must be submitted to the Engineering Department of the Municipality of Moravia, to perform the corresponding calculations for its payment, and must also adequately follow the requirements indicated by articles two and three, and with the approval of the Planning Department of the Municipality, to be able to proceed with the corresponding process.
For this license application to take effect, the sum of one hundred colones must be paid for the administrative process as a general paperwork fee. Furthermore, this sum shall be adjusted automatically every six months, taking for this purpose the inflation index provided by the central government of the Republic.
Regarding the payment of the license itself, such as the granting of permission for the installation of the sign, this shall be calculated as follows:
Permanent sign: The payment is calculated for each square cm of advertising message, charging a special fee for the occupation of public space by the projection of the advertising message, according to the following formula:
TE=TB* (VR*CC) CIV. (CL)
Where: TE: specific fee
TB: base fee which corresponds to a fixed amount (adjustable according to the semi-annual inflation index and in accordance with the general consumer price index) per square cm (250 colones x cmq 2), advertising message, which shall be weighted by the following coefficients:
VR: Real value of the sign cost (which is equal to one percent of the sign’s value)
CC: classification coefficient
CIV: visual impact coefficient
CL: luminosity coefficient
Occasional sign: The payment is calculated for each square cm of advertising message, charging a special fee for the occupation of public space by the projection of the advertising message. This base fee corresponds to a fixed amount which is adjustable according to the semi-annual inflation index and in accordance with the general consumer price index; therefore, 350 colones per cmq must be paid.
(Highlighting added)
Article 55.- Third-party rights. Licenses issued for the placement of advertisements shall always be granted without prejudice to the rights of third parties.
Article 56.- Prohibitions. The installation of advertisements that encroach upon public roads shall not be permitted, except those allowed in articles nine and ten. It is strictly prohibited to affix or paint notices, advertisements, programs, etc., of any kind and material in the following places:
a) Public buildings, schools, and temples.
b) Buildings listed by the Municipality as monuments.
c) Posts, lampposts, kiosks, fountains, trees, sidewalks, curbs in general, ornamental elements of plazas and promenades, parks, and streets.
d) Private houses and fences.
e) On others’ boards.
f) At a distance indicated by the Municipality according to the circumstances, which shall not be less than thirty centimeters in any direction from nomenclature plaques or traffic signs.
g) In places where they obstruct visibility for traffic.
h) On hills, rocks, trees, etc., that may affect the panoramic perspective or the harmony of the landscape.
In other places at the discretion of the Municipal Corporation (Corporación Municipal), it reserves the right to determine the impact of the sign or signs placed in the canton, and may therefore deny their installation.
Article 57.- Limitations. Advertisements must be of such dimensions, designs, and placement that they do not detract from the architectural elements of the facades on which they are placed or those nearby, nor that when projected into the perspective of a street, plaza, or monument, they alter its architectural value. The Municipal Engineering Department may, for technical or aesthetic reasons, limit the surface area that a notice or set of notices will occupy on a facade, or disallow their placement, in accordance with the Planning Department.
Article 58.- Projecting advertisements (Anuncios volados). All drawings, models, signs, notices, advertisements, flags, or any other representation used to advertise, warn, or indicate a direction, as well as clocks, light bulbs, projection devices, among others, secured to a building by means of posts, masts, brackets, and other types of supports, such that any of the mentioned advertisements, etc., apart from them, are visible against the sky from any point on the public road, are classified as projecting advertisements (anuncios volados). This Regulation shall also apply to this type of advertisement.
Article 59.- Protruding advertisements (Anuncios salientes). Those advertisements that project beyond the building lines of the building or property on which said advertisements are installed are classified as protruding advertisements (anuncios salientes); they may occupy up to the width of the sidewalk itself, when placed at a height above the sidewalk level exceeding 2.50 m.
Article 60.- Signs under marquees. Signs placed under marquees shall have a minimum height of 2.25 m, provided they do not project beyond two-thirds of the width of the sidewalk itself, if placed at a height greater than 2.50 m above its level.
Article 61.- Illuminated advertisements. Illuminated advertisements must be made of appropriate, artistic materials and suitably lit. In these illuminated advertisements or those using mirrors, glaring, damaging, or simply annoying people’s eyesight must be avoided. Intense reflections or concentrations of light, alternating absolute light and darkness, and harmful contrasts of vivid colors are prohibited. The variation in illumination of advertisements that have light changes shall not exceed fifty percent on commercial arteries and thirty-three percent on other roads.
Article 62.- Height. Advertisements placed on unbuilt properties adjacent to public roads shall be placed at the height and distance indicated by the Municipality, so as not to impair the minimum conditions of safety and visibility. Those signs located over the public road may not have a height of less than 2.25 m.
Article 63.- License term. Licenses for advertisements are granted for a maximum term of one year, renewable. The owners must process the renewal of the license before that term expires, which will be granted to them if the conditions of stability and conservation of the advertisement are satisfactory to the Municipality, for which they must carry out the corresponding procedures.
Article 64.- Processing of licenses or renewals. The Municipality shall process, within a period not exceeding fifteen business days, both the permit application for the installation of advertisements and the renewal thereof. Once that period has elapsed without the Municipality having issued a decision, the renewal permit with its respective payment to the Municipality shall be automatically authorized.
Article 65.- License cancellation. The Municipality may cancel the license for an advertisement and order its removal at the owner’s expense, when unauthorized modifications have been made to it by the Municipality, or when it is in conditions that affect its stability.
Article 66.- Penalties. The Municipality shall impose, in accordance with chapter seven, article 33 of the Construction Law, fines ranging from 5,000.00 colones to 10,000.00 colones for infractions of this Regulation, which shall be adjusted semi-annually in accordance with the inflation index indicated by the competent body of the Central Government. It shall order the dismantling or removal, at the owner’s expense, of advertisements and structures it considers unsuitable or dangerous, but in the event that the owner does not carry out what is ordered by the municipal corporation, the violator or violators shall be charged the real costs for the performance of this task by the Municipality. In accordance with article 98 of the Construction Law, refusal to comply with the Municipality’s orders, or repeat offenses, shall be punished with the repetition of the fines, with an increase of 100% over the amount of the original fine each time they must be re-imposed. The Municipality may resort to the police to enforce its provisions.
For repeat offenders, the Municipality may cancel the business license (patente comercial).
In those cases of signs installed on vacant lots or on buildings, with or without the consent of the property owner and the owner of the commercial or residential establishment, the fine shall be charged to them, and in the latter case, proceedings shall be as per the preceding paragraph. Unless the natural or legal person responsible for the installation of the sign assumes sufficient responsibility, in the judgment of the respective unit, to cover any damage or fine that might eventually arise.
Article 67.- Regarding the destination of the economic resources collected, it shall be allocated as follows:
25% of the amount collected shall be allocated annually to the local Moravian Red Cross.
75% of the amount collected shall be destined for free use by the municipal administration. “
The plaintiff considers that said regulation is contrary to the provisions of articles 11 and subsection 13) of article 121 of the Political Constitution, as well as to the principle of reasonableness because they establish the payment of a tax, which is the business license tax (impuesto de patente) for the placement of signs, without the constitutional procedure for their creation having been followed. He affirms that by virtue of the principle of legal reserve (principio de reserva de ley), the law must contain at least the basic and structuring elements of the tax (taxable event (hecho imponible), taxable subjects (sujetos pasivos), and elements necessary for setting the quantum, as well as exemptions). Finally, the legal system must be governed by the principle of reasonableness, such that its rules have a direct and proportional relationship between the means chosen and their purpose; that is, the legislator must not detach from their social environment, much less from reality, when issuing rules.
III.- On the merits.
The issue raised in this action was resolved by this Chamber in judgment number 2002-5503 of fourteen hours thirty-four minutes on today’s date. In that resolution, it was stated:
“V.- Legitimacy of the challenged restrictions.
The regulation being challenged, as could be seen in the purpose of this action, aims to regulate and control everything related to outdoor advertising and operational signs in the central canton of San José, in order to achieve a balance between the architectural and urban work and the advertising message, as a means of communication, information, and identification in cities (Objective of the Regulation, Title VIII). It must be recognized that while it is true that there is a right to outdoor advertising, derived from the exercise of freedom of commerce, to the extent that such advertising affects the interests of third parties, as well as eventually, public morality and order, it is legitimate to regulate and limit its exercise. Excessive and uncontrolled signage decisively infringes upon the right of every person to a healthy and ecologically balanced environment, guaranteed in article 50 of the Political Constitution. The Organic Law of the Environment, in articles 59 and 71, indicates what should be understood as environmental pollution and specifically as visual pollution, which is that caused by actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum limits admissible by established technical standards or those issued in the future. It is even established in that Law that to prevent this type of pollution, the Executive Branch must dictate appropriate measures and promote their execution through organisms, public entities, and municipalities. On the other hand, a right of the State and specifically of the Municipalities has also been recognized to limit the right to private property, by virtue of what has been called urban planning:
“…there is no merely logical possibility of unlimited rights existing, since it is the very essence of the legal order to articulate a system of limits between the positions of all subjects, and an unlimited subjective right could be the cause of the destruction of the legal order, that is, it could be incompatible with it. The mission of the Law is not to make exceptions to the supposed prior unlimited nature of fundamental rights, but precisely to design and define them for the purpose of their articulation within the social concert. This is no exception in the case of the regulation of property rights, an indisputable and direct creation of the legal system. Thus, the position of the absolute nature of property, as an unlimited and exclusive right, only affected by reasons of expropriation to build public works—the only limitation admitted in the last century—has been replaced by a new vision of property, which, while still being regulated as a subjective right, provides that its powers are limited and that it is also subject to duties and obligations. Such limitations on the right to property are a product of the very fact of being part of a community, the same one that guarantees that right, but subjects it to certain regulations with the aim of achieving optimal and harmonious enjoyment of the rights of all individuals, and which are characterized, as a matter of principle, by not being compensable.\n\nIn the specific case of the right of property, the system of intrinsic or internal limitations refers to the proper or essential content of the right of property, a minimum content that has been defined as the power to enjoy and use the good for personal benefit in the case of private property, or for social utility in the case of public property; and the system of external limitations on property is made up of limitations of social interest, which are of legislative origin and of utmost institutional importance, as their imposition requires legislative approval by a qualified majority. As stated, in principle, by themselves and by definition, limitations of social interest imposed on property are not subject to compensation, as they do not imply expropriation, that is, when the property does not suffer dismemberments that extinguish the right. Of course, they do imply a charge or legal duty—in the strict sense—to refrain from doing something, or at most, to tolerate the State's intrusion into the property for public purposes, a duty added to the owner's powers or faculties, but without denaturing or destroying them. These limitations must be of a general nature, which implies not only their recipient, but also the factual premise of their application, since when they become singular or specific, they could be equated to true expropriations. In this sense, and as will be explained later, the imposition of limitations on property for urban planning purposes is essential for coexistence in society, and does not constitute an expropriatory activity requiring prior compensation, under the terms required and provided for in the second paragraph of Article 45 of the Political Constitution.\n\nV. THE SOCIAL FUNCTION OF PROPERTY AND ITS RELATIONSHIP WITH LIMITATIONS ON THE RIGHT OF PROPERTY—SECOND PARAGRAPH OF ARTICLE 45 OF THE POLITICAL CONSTITUTION. A conception of the right to private property in absolute and practically unlimited terms became the basic fulcrum upon which the Western system was established, enshrining the complete intangibility of the right of property as the basic center of the legal system, insofar as it implied complete dominion over the good, in an absolute, general, independent, full, universal, unlimited, and exclusive manner. However, this concept has evolved to the point of proposing the defense of a property based on social harmony, and by a social sense of land ownership. The legal basis upon which the protection of property rests is thus modified, and from being an exclusive right for the individual, it becomes an obligation in favor of the harmonious coexistence of society. The idea of the \"social function\" of property emerged, in which every individual has the obligation to fulfill certain communal duties, directly in proportion to the place they occupy and the interests of the social group they represent. The content of this \"property-function\" consists in the fact that the owner has the power to use the good that is the object of ownership to satisfy their own needs, but bears the corresponding duty to also place it at the service of social needs when such behavior is essential. With this new concept, the legislator's powers to determine the content of the right of property are broadened, which is achieved through the limits and obligations of social interest that may be created, putting an end to its exclusive, sacred, and inviolable sense. This thesis has been previously recognized by this Court; thus, in amparo judgment number 5097-93, it stated:\n\n\"I.) The inviolability of private property is a constitutional-level guarantee enshrined in canon 45 of the Political Charter. This right, contrary to how it was conceived in other times, is not of a static nature, but rather, in accordance with the demands of our time, it must be considered elastic and dynamic, that is, it grants its holders, both internally and externally, the faculties, duties, and limitations. The owner's power over the property is determined by the function it fulfills. The object of the right of property has undergone important transformations. Currently, not only the right of owners is protectable, but also various general or social interests that coexist with it. Objective law frames the content of subjective rights. Each object of a right implies a peculiar form of appropriation. Thus, for example, the faculties of ownership relating to an agricultural fund are very different from those corresponding to a property located in an intensely utilized urban sector.\"\n\nLikewise, together with this principle—the social function of property—the principle of social solidarity is integrated, from which, as this Constitutional Court previously indicated,\n\n\"IV.- [...], our Political Constitution is imbued, allows the burden borne by all in favor of all, or even by a few in favor of many, with the requirement that the natural use of the real property is not affected to the limit of its value as a means of production, or its market value, that is, that it does not disappear as a productive identity.\"\n\n(Judgment number 2345-96, at nine hours twenty-four minutes on the seventeenth of May of the current year.)\n\nIt is worth noting that in almost all legal systems, the concept of the right to private property conceived in an unlimited and absolute form has disappeared, and in the most important orders, a conception of property closely linked to the general demands of society is increasingly gaining strength; as this Chamber previously noted in the cited judgment number 2345-96:\n\n\"Developing the concept of 'deprivation of a primary attribute of ownership' that prevents the enjoyment of goods, we can say that the limitation is a method for defining the content of or the exercise of the right of property, which qualifies and affects the right in itself.\"\n\nVI. Article 45 of the Political Constitution enshrines, in our legal-constitutional order, the right of property. In the first paragraph, it indicates its \"inviolable\" nature and establishes the obligation on the part of the State to previously compensate the owner when it must abolish it for reasons of \"legally verified public interest.\" In the second paragraph, it establishes the possibility of establishing limitations of social interest on property, by means of a law approved by a qualified vote—a vote of two-thirds of the total membership of the Legislative Assembly. From the foregoing, it is clear that the obligation to compensate on the part of the State is constitutionally provided for only and exclusively when it involves expropriation and does not apply to limitations of social interest established by a law approved by a qualified vote, in the terms this Constitutional Court already previously noted in amparo judgment number 5097-93.\n\n\"II.) Costa Rican legislation establishes the possibility that through regulatory plans, for social interest, private property may be limited, and Urban Planning Law can, in turn, develop them. The right of property is then framed within certain reasonable limits, within the duties derived from it. Precisely for this reason, compensation is not necessary for reasonable urban planning limits and duties [...]\"\n\nIt is clarified that the limitations or restrictions on property are of a general nature, and have the virtue of providing the individual with the necessary instruments to mitigate the effects of the harmful activity of their peers. It is worth noting that their main purpose or objective is the rational use of property, which benefits the neighbors or, in general, the whole of society. In this sense, the Full Court, when it exercised functions of constitutionality controller, in an extraordinary session on the sixteenth of June of nineteen eighty-three, stated:\n\n\"The limitations—or limits—that may be imposed on property (apart from the relations of vicinity and other duties or charges addressed by the Civil Code and special laws), are those of 'social interest' authorized by the second paragraph of Article 45 of the Constitution and which are aimed at protecting interests of that kind, for the benefit of the entire society or some of its communities; [...]\"\n\nVII. Certain limitations on property have always existed as rules incorporated into the Civil Code, such as those referring to the possession and transmission of real property—Article 272—, by virtue of which division is prevented in cases of co-ownership; those referring to the height of sidewalks—Article 303—; those establishing protection for possible damages caused to third parties due to the poor state of buildings or trees—Article 311—; and especially the entire Title V called Charges or Limitations on Property Imposed by Law, which sets forth, among others, the prohibitions on building near a party wall, wells, sewers, aqueducts, etc.—Article 404—, those prohibiting opening a window or skylight in a dividing wall, at a distance of less than two and a half meters at least—Article 406—, or overlooking rooms, patios, or corrals of the neighboring property—Article 407—. Other examples of the foregoing are public safety and health requirements, those gathered in the law allowing the authority to impose on the owner repairs, remodeling, or demolitions of buildings that threaten ruin or are unhealthy, provisions gathered mainly in the Civil Code and in the General Health Law. In this order of ideas, the laws referring to the protection of forests, natural beauties, cultural heritage, and monuments must also be cited, which also imply limitations on property, such as the Forestry Law (Ley Forestal), No. 7174 of the twenty-eighth of June of nineteen ninety, the Wildlife Conservation Law No. 7317, of the twenty-first of October of nineteen ninety-two, and the Historical, Architectural and Cultural Heritage Law No. 4, of October of nineteen ninety-five.\n\nVIII. Notwithstanding what has been noted in the previous recitals, it must be warned that the legitimate limitations that may be imposed on private property find their natural boundary in the degree of affectation to the property; that is, when the restriction on the right of property becomes a true expropriation with the consequent obligation to compensate, because the right of property is made to disappear completely, or when it does not affect the generality of the community. Thus, the Full Court stated in relation to the limitations to be imposed on property when they exceed the indicated limit, in an extraordinary session on the sixteenth of June of nineteen eighty-three:\n\n\"[...] that is 'limitations' as Article 45 calls them, but not dispossession of private property nor deprivation of a primary attribute of ownership, because preventing the enjoyment of goods is equivalent, at least in this case, to a form of expropriation without the requirement of prior compensation ordered by the Political Charter\";\n\nand as this Court indicated in the cited judgments number 5097-93 and 2345-96; in which it stated:\n\n\"IV.) For this Chamber, the reasonable limits that the State may impose on private property, in accordance with its nature, are constitutionally possible as long as they do not empty its content. When this occurs, it ceases to be a reasonable limitation and becomes a deprivation of the right itself.\" (Judgment number 5097-93);\n\n\"That is, the attributes of property may be limited, as long as the owner reserves for himself the possibility of normally exploiting the good, excluding, of course, the part or function affected by the limitation imposed by the State. Outside these parameters, if social welfare demands sacrifices from one or only a few, compensation must be paid, just as occurs when the sacrifice imposed on the owner is of such identity that it causes the total loss of the good. Thus, the limitation on property withstands constitutional analysis when the affectation to the essential attributes of property—those that allow the natural use of the thing within the current socio-economic reality—does not cause the nature of the good to disappear or make the use of the thing impossible, because the State imposes authorization or approval requirements so complex that they imply, de facto, the impossibility of usufructing the good.\" (Judgment number 2345-96);\n\nIX. URBAN PLANNING PROPERTY. The concept of property in urban planning law has been considered in doctrine not as a static unit or a single type, but rather one speaks of types, such as urban property, rural property, and industrial property, that is, depending on the function that the good is entrusted with and performs in life in society. In this evolution of the concept of property—and consequently of the right of property—, the urban phenomenon and the ordering of urban planning have collaborated greatly, determining a new content for it, distinct from the traditional one. Thus, urban property is subject to a series of characteristics, for example: 1.— it is a delimited property (boundaries, party relationship, volumetric property—third dimension—); 2.— it is subject to a determined purpose, defined in a regulatory plan or zoning regulation, an end that cannot be changed by the owner, but is limitable and regulated by the respective authorities—local governments, in the first instance—; 3.— the use of the property is restrictive and sometimes obligatory; 4.— the property plays a particular role, inclusive of a temporary nature, as it moves within the validity of a regulatory plan, so since the plan is modifiable by the authority, the uses of the property could also be changed; 5.— in this sense, the limitations imposed on the property by a regulatory plan must be understood as lawful limitations; 6.— the affectation to the property has the character of \"limitation,\" that is, the property subjected to a series of restrictions and obligations (parceling, reparceling, selling, building, conserving, fencing, construction permits, facade heights, setbacks, vehicle parking, habitability permits, plot areas, etc.), the purpose of which is to contribute to collective well-being, and thus, to one's own benefit; it is understood that these cannot be of such a nature that they imply the extinction or unbearable limitation that empties the right of property of its content, as this would imply a covert expropriation, and must consequently be compensated; 7.— in the event of making the right of property practically null, it converts the particular case into a situation of expropriation, and in this way, expropriation becomes a figure consubstantial to the urban property regime, because it is one of the means of execution of urban planning by public entities; furthermore, the \"free transfer\" (cesión gratuita) of part of the property is possible for urban planning reasons on the occasion of urban developments for communication routes, green areas, and educational zones; and 8.— it is of a formal nature, since the title of property is not sufficient to exercise the attributes of the right, but rather it is necessary for its content to be specified, according to the permitted use in a regulatory or zoning plan. It is important to note that by virtue of the urban planning process, the urbanization must be conceptualized as a partial urban planning plan, because it affects only the sector being urbanized. Facing the urban development process, two types of property coexist: that which arises with the particular urban development program (construction of an urbanization, for example), to which the limitations and charges arising from the control acts are consubstantial, expressed in the authorization given by the municipal administration for the construction of the development itself, such as the lot size, setback areas, sidewalk width, building height, so that these are not subject to compensation; and the property that predates the urbanizing plan, in relation to which, the limitations and charges that the authority has an interest in implementing will be subject to compensation, depending on their nature and degree of affectation to the right, since, as noted in Recital V of this section, those that imply a dismemberment of the right of property itself will be compensable.\n\nX. As doctrine points out, the \"city,\" as such, is a collective fact that conditions the life of its inhabitants, so that it lacks justification to entrust the capital decisions regarding that collective fact (emergence, extension, character, density, destination, etc.) to the simple \"convenience\" of a few private landowners, which are generally determined or reflected in reasons of profit or for motives of economic utility. The regulatory authority for urban development cannot allow the exhaustion of soils, nor the over-density in populations, the liquidation of the system of gardens and green areas, etc., without attending to the needs and demands for collective services that urbanizing activity itself creates, such as streets, sewers, water, electricity, telephone, transport, educational centers, green areas, etc. Situations such as those mentioned are what urban planning regulation aims to solve, by virtue of which the use of property emanates from a public authority.\n\nXI. By virtue of the urban planning process and urban planning, urban regulation must translate into a regulatory regime for the right of property, insofar as the proper content of the right of property is defined through the various provisions that make up urban planning law, that is, the regulatory plans and regulations issued by municipal governments, and in their absence—as will be seen later—by the rules issued by the National Institute of Housing and Urbanism (Instituto Nacional de Vivienda y Urbanismo). In this way, the limitations and duties imposed on private property are what define the normal content of the property; and urban regulation establishes the limits of the faculties of the right of property, but does not constrain, reduce, or condition the exercise of the right, but rather defines the normal content of the property in the function it fulfills.\n\nXII. LIMITATIONS IMPOSED IN MATTERS OF URBAN PLANNING. The imposition of limitations on property for urban planning purposes is essential for coexistence in society, and does not constitute an expropriatory activity requiring prior compensation, under the terms established in—and analyzed in the previous recitals—the second paragraph of Article 45 of the Political Constitution. Such limitations on the right of property are a product of the very fact of belonging to a community, the same community that guarantees that right, but subjects it to certain regulations in order to achieve optimal and harmonious enjoyment of the rights of all individuals. In this sense, this Chamber has pronounced on the \"relative\" nature of the right of property, insofar as it is subject to limits and restrictions on one or more of the attributes of property for urban planning reasons; and in various judgments, it has confirmed the \"social interest\" nature of urban planning rules, imposed in accordance with what is ordered by the Political Constitution itself. Thus, in constitutionality judgment number 1167-92, it stated:\n\n\"Although our Political Constitution recognizes private property as a fundamental right of citizens, the enjoyment of such right is not unrestricted, and the same Article 45 of the Constitution allows the Legislative Assembly to impose limitations of social interest on it. The Urban Planning Law is one of those limitations, and therefore, the refusal to grant a license does not constitute a violation of the fundamental rights of the appellants [...]\";\n\nthis thesis was reinforced by amparo judgment number 5303-93, in which it was said:\n\n\"Costa Rican legislation establishes the possibility of limiting private property for reasons of social interest. As indicated in the first Recital, the limitation on property imposed by a regulatory plan is constitutionally possible, because the right of property is not unlimited, rather, there is a general framework within which the owner may act, which must be compatible with the constitutional content of that right. For what has been expressed, in the judgment of this Court, the limitation imposed, as long as it is adjusted to a current regulatory plan, does not violate, as suggested in the appeal, Article 45 of the Political Constitution, as long as that regulatory plan does not deconstitutionalize the private property affected by that instrument. A contrario sensu, if the limitations exceed the minimum parameters of reasonableness and proportionality, they would be contrary to the Political Constitution\",\n\nand, finally, in judgment number 6706-93, it declared the constitutionality of the Urban Planning Law.\n\nXIII. In line with what was stated in Recital VIII., urban planning regulations will be able to support a claim for economic compensation by the owners of the affected land only when they imply a dismemberment of the right of property, since compensation under the terms set forth in the first paragraph of Article 45 of the Political Constitution is appropriate only when these regulations are not of a general nature or render the right of property nugatory, becoming true expropriations, as previously indicated. They are not subject to any compensation insofar as they do not imply a reduction in the content of the property, as occurs with the establishment of the front garden, which constitutes a typical urban easement (servidumbre urbana), since the owner maintains possession of their property, but in a diminished form, given that only their power of disposal is reduced. These latter are the limitations and duties that must be considered as integrating the content of the right of property, since there is no reduction of the content of the property.\"\n\nJudgment 1996-04205 at fourteen hours thirty-three minutes on the twentieth of August of nineteen ninety-six.\n\nThus, outdoor advertising is indeed an activity capable of causing harm to third parties, to morality, and to public order; because it directly affects the right of every individual to a healthy and ecologically balanced environment and the power of the State to regulate matters relating to urban planning. From that perspective, the legitimacy of the restriction of the right of property and freedom of commerce produced by the questioned regulations must be taken as a first premise.\n\nVI.— Competence of the municipalities in urban planning.\n\nIt is essential to take into consideration in this case the competence that municipalities have in matters of urban planning, given that the regulations being questioned are contained in the Reglamento de Espacios Públicos, Vialidad y Transporte del Plan Director Urbano del cantón central de San José. In this regard, it has been noted:\n\n\"In accordance with the provisions of Article 169 of the Political Constitution and Article 15 of the Urban Planning Law, it is the competence of the Municipalities to plan and control urban development, within the limits of their territory. To fulfill this objective, the Municipalities can implement regulatory plans in which they may determine—among many other aspects (Article 16 Ley 4240 and its reforms)—the zoning of land use for housing, commerce, industry, education, recreation, public purposes, and any other pertinent destination. To implement a regulatory plan in whole or in part, the Municipalities must follow the procedure established in Article 17 ibid.\"\n\n(Judgment number 1993-02153 at nine hours twenty-one minutes on the twenty-first of May of nineteen ninety-three).\"\n\nIn the same sense, it was indicated:\n\n\"In accordance with the provisions of Articles 169 and 170 of the Political Constitution, the Urban Planning Law, number 4240, of the fifteenth of November of nineteen sixty-eight, starts from the premise that the primary authority in matters of urban planning corresponds to the municipalities, which has been embodied in Articles 15 and 19 of said law. Thus, it is the municipalities that are responsible for undertaking local urban planning through the promulgation of the respective regulations—regulatory plans—, and implementing the rules dictated for that purpose by the Instituto Nacional de Vivienda y Urbanismo, as the institution responsible for urban planning at the national level. This point has already been considered by this Chamber, in judgment number 6706-93, at fifteen hours twenty-one minutes on the twenty-first of December of nineteen ninety-three, in which it indicated:\n\n\"II).- The Chamber considers that the power attributed to local governments to plan urban development within the limits of their territory does integrate the constitutional concept of 'local interests and services' referred to in Article 169 of the Constitution, competence that was recognized by the Urban Planning Law (# 4240 of November 15, 1968, amended by Laws # 6575 of April 27, 1981 and # 6595 of August 6 of that same year), specifically in Articles 15 and 19 challenged here, which literally establish:\n\n\"Article 15.- In accordance with the precept of Article 169 of the Political Constitution, the competence and authority of municipal governments to plan and control urban development, within the limits of their jurisdictional territory, is recognized.\n\nConsequently, each of them shall provide whatever is appropriate to implement a master plan (plan regulador), and the related urban development regulations, in the areas where it must govern, without prejudice to extending all or some of its effects to other sectors, where qualified reasons exist to establish a specific regulatory regime.\"\n\n\"Article 19.- Each Municipality shall issue and promulgate the procedural rules necessary for the due observance of the master plan and for the protection of the interests of the health, safety, comfort, and well-being of the community.\"\n\nIII).-\n\n*Within what may be called the administrative organization of urban planning in our country, the Directorate of Urban Planning (Dirección de Urbanismo) -attached to the National Institute of Housing and Urban Planning (Instituto Nacional de Vivienda y Urbanismo)- and the Planning Office (today the Ministry of Planning and Economic Policy) are the bodies responsible for preparing the National Urban Development Plan, through which the general policies on the growth and development of urban areas are established.- Said Plan -which is specifically prepared by the Directorate and proposed by the Board of Directors of the Institute- must include technical studies on the population factor with growth projections at the national, regional, and urban levels, on land use with plans on the extension and forms of use of the portions required for urban development, industrial development, housing and urban renewal, public services, and the general location of transportation projects, among others.- Furthermore, the Directorate of Urban Planning functions as an advisory body to the municipalities for the purposes of preparing, applying, and modifying the municipal or local Master Plan and its Regulations before their final adoption.- However, the foregoing must be understood as the formal limit of the broad guidelines, technical standards, or general directives according to which local governments must prepare their respective master plans and the corresponding urban development regulations, because it is not possible to pretend that the National Urban Development Plan is prepared and implemented entirely by the Central Government, without the direct intervention of the municipalities in that matter.- Such a situation violates not only the most elementary principles of logic and convenience, given that it involves the particular interests of each canton of the Republic, but also the constitutional principles of the municipal regime, established by our Fundamental Charter in articles 168 to 175.- Urban planning, that is, the preparation and implementation of master plans, is a function inherent to the municipalities *to the exclusion of all other public entities*, except as stated regarding the general directive powers attributed to the Ministry of Planning and the Directorate of Urban Planning.- This topic was already developed by the Chamber in judgment number 5305-93, at ten hours six minutes on the twenty-second of October last, which, regarding the municipal power to plan local urban development and the imposition of limitations on property by virtue of the execution of a master plan, indicated:*\n\n\"... the limitation on property imposed by a master plan is constitutionally possible, because the right of property is not unlimited; rather, there is a general framework within which the owner may act and which must be compatible with the constitutional content of that right. Based on the foregoing, in the opinion of this Court, the limitation imposed, as long as it is adjusted to a current master plan, does not violate, as suggested in the appeal, Article 45 of the Political Constitution, as long as that master plan does not deconstitutionalize the private property that is affected by that instrument. A contrario sensu, if the limitations exceed the minimum parameters of reasonableness and proportionality, they would be contrary to the Political Constitution.\".-\n\nIV).-\n\n*Articles 15 and 19 of the Urban Planning Law are therefore not unconstitutional, since they merely recognize the competence of the municipalities to plan urban development within the limits of their territory through the corresponding regulations, which does not violate the constitutional principles invoked by the petitioner: the principle of legal reserve (reserva de ley), because—as stated—local urban planning is a function inherent to the municipalities by virtue of the express text of the Constitution, and the limits of the exercise of that attribution being set in the Urban Planning Law, the Regulations or Master Plans are a development of those principles; and the principles of property and free enterprise, because they do not in any way impose restrictions on those rights, but rather simply grant the power to control the correct use of land and thus guarantee a rational and harmonious development of urban centers as well as commercial, industrial, sports centers, etc. (see also in the same vein, judgments number 2153-93, at nine hours twenty-one minutes on the twenty-first of May, and number 5305-93, at ten hours six minutes on the twenty-second of October, both of this year).-*\n\nBased on the foregoing, and in accordance with the cited jurisprudence, the thesis is reiterated that the competence for urban planning remains an exclusive attribution of municipal governments, and only exceptionally and residually, in the absence of regulation issued for that purpose by the municipalities, is INVU assigned the task of proposing master plans, but subject to their prior approval by the local entity; such that the provisions issued for that purpose by this autonomous institution regarding urban planning must always be considered transitory, and in default of the use of municipal competencies.\"\n\n(1996-04205 at fourteen hours thirty-three minutes on the twentieth of August, nineteen ninety-six)\n\nOnce the competence, in this case, of the Municipality of the Central Canton of San José, to issue the Regulation, whose norms are challenged, has been established, it is necessary to determine whether that regulation has any legal basis, in order to determine respect for the principle of legal reserve.\n\nVII.- Legal basis of the challenged regulation. Absence of violation of the principle of legal reserve\n\nIn none of the challenged norms are limitations established that impede the exercise of freedom of commerce and the right of property. The essential content of those rights is not affected, but rather what is done is to regulate their exercise. Moreover, the regulation is based on the competence conferred upon it by norms of legal rank. Firstly, it must be borne in mind that the Municipal Code, in articles 15 and 19, recognizes the competence of the municipalities to plan and control urban development, as indicated in the preceding recital (considerando). For its part, the Construction Law number 833 of the second of November, nineteen forty-nine, regarding the requirements for the exterior advertising license, restrictions, terms, and sanctions, in its articles 29, 30, 31, 32, and 33 indicates:\n\nArticle 29.- License. To place or affix advertisements, signs, billboards, or notices, a license must be requested from the Municipality. The license shall be requested by the owner of the structure on which the advertisement is to be affixed and with the consent of the owner of the property on which the structure is placed when applicable. In cases where frameworks or structures are used, the Municipality shall require a responsible expert to be in charge of the construction. A dimensioned sketch showing the inscriptions or figures to be placed shall be required.\n\nArticle 30.- Prohibition. Advertisements that cross the public thoroughfare are prohibited, as well as those placed using public service posts or trees in parks or gardens.\n\nArticle 31.- The Municipality has the power to limit the surface area that an advertisement or a set of advertisements will occupy on a façade and to not permit their placement.\n\nArticle 32.- Prohibitions. It is strictly forbidden to affix or paint advertisements, announcements, programs, etc., of any kind and material, in the following places:\n\na) Public buildings, schools, and temples.\n\nb) Buildings cataloged by the Municipality as national monuments.\n\nc) Posts, lighting candelabras, kiosks, fountains, trees, sidewalks, curbs, in general ornamental elements of squares and promenades, parks, and streets.\n\nd) Private houses and fences.\n\ne) On other people's billboards.\n\nf) At a distance of less than thirty (30) centimeters in any direction from street name plaques.\n\ng) In places where they obstruct visibility for traffic.\n\nh) On hills, rocks, trees, where the panoramic perspective or the harmony of a landscape may be affected.\n\nArticle 33.- Sanctions. The Municipality shall impose fines of ten (10) to one hundred (100) colones for infractions of the rules of this Chapter, and shall order the dismantling and removal, at the owner's expense, of advertisements and related structures it considers inconvenient or dangerous.\n\nLikewise, article 14 of Law number 6890 of the fourteenth of September, nineteen eighty-three, states:\n\nArticle 14.- The Executive Branch and the following state entities are authorized, for what is indicated in each case: […] To all the Municipalities of the Country: a) So that in all cases of non-compliance with the Signage Regulation, violators are sanctioned with the cancellation of the municipal license or patent and with the closure of the commercial establishment.\n\nThe transgressor must be previously notified, who shall have a term of five business days to comply with the law.\"\n\nIn addition to said regulations, the Organic Environmental Law refers, regarding environmental pollution and specifically regarding visual pollution:\n\n\"Article 59.- Environmental pollution.- Pollution is understood as any alteration or modification of the environment that may harm human health, threaten natural resources, or affect the environment in general of the Nation. The discharge and emission of pollutants shall obligatorily conform to the technical regulations that are issued. The State shall adopt the measures that are necessary to prevent or correct environmental pollution.\"\n\n\"Article 71.- Visual pollution.- Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum admissible limits by the established technical standards or those issued in the future, shall be considered visual pollution.\n\nThe Executive Branch shall dictate the appropriate measures and promote their execution through the organisms, public entities, and municipalities, to prevent this type of pollution.\"\n\nIn addition to the provisions of those norms, the Law of Transit on Public and Terrestrial Roads, in article 205 of the Law, establishes:\n\n\"Article 205.- Advertisements and signs placed for advertising purposes on lands adjacent to public roads and in places that may affect visibility, safety, or the panoramic perspective, may only be placed outside the road right-of-way and in strict compliance with the provisions of the regulation on this matter…\"\n\nThese are the norms that the Municipality regulates regarding exterior advertising and within the scope of its competence in the administration of local interests and services; thereby, the Chamber confirms that no violation of the principles of legality and legal reserve is observed. An exception is made for Article 69 of the Regulation, which establishes a license payment that is not provided for in the Law nor is approved as such. In this regard, the respective analysis will be made in recital IX of this judgment.\n\nVIII.- Analysis of the reasonableness of the norms\n\nThe petitioner argues that the challenged regulation injures the principle of reasonableness and proportionality of norms. To reach that conclusion, he starts from the following premises: a) The imposition of licenses for advertising signs finds no legal basis whatsoever. In relation to this topic, it has already been established, not only that the Municipality has the constitutional and legal competence to regulate everything related to exterior advertising that affects the administration and governance of local interests and services; but also, that there are norms of legal rank that regulate and restrict that activity. The Regulation of Public Spaces, Roadways, and Transportation develops what is provided for in the norms, without opposing, surpassing, or supplanting in any way their essential content.\n\nb) This is a private activity that should not be subject to restrictions unless public health or common safety is endangered.\n\n*Exterior advertising transcends that sphere of freedom in private actions, because the rights of third parties, public order, and eventually, morality, are directly affected. This is because it relates to every person's right to a healthy and ecologically balanced environment and to urban planning, which must occur as a process tending to procure the health, safety, comfort, and well-being of the community in general. Consequently, under the terms of Article 28 of the Constitution, the limitation and regulation of the exercise of that activity is legitimate.*\n\nc) It injures the right of property, as it restricts the free use of a construction.\n\n*As analyzed, the right to private property is not absolute or unrestricted. Its social function makes it necessary and reasonable to impose limitations on its exercise for the sake of the common good. The challenged norms do not absolutely prohibit the placement of signs on private property; what they do is regulate and limit the activity, based on technical criteria, that guarantee respect for legal interests, such as safety, the right to a healthy environment, physical integrity, among others.*\n\nd) It injures the freedom of commerce.\n\n*The challenged articles also do not infringe upon the freedom of commerce because they do not denature it; what they do is restrict and limit a particular aspect of that freedom, which is the right of exterior advertising, to the extent that the rights of third parties, public order, and eventually, morality, are affected.*\n\ne) The test of technical reasonableness imposed by Constitutional Law is not satisfied.\n\n*In relation to the principle of the reasonableness of norms, this Chamber has stated:*\n\n\"Constitutional jurisprudence has been clear and consistent in considering that the principle of reasonableness constitutes a parameter of constitutionality. It is worth recalling, in the first place, that the 'reasonableness of the law' was born as part of 'substantive due process of law' (debido proceso sustantivo), a guarantee created by the jurisprudence of the Supreme Court of the United States of America, in line with the Fourteenth Amendment to the Federal Constitution. In the initial conception, 'due process' was directed at the procedural review of the legislative act and its effect on substantive rights. At the end of the 19th century, however, it surpassed that procedural conception that had given rise to it and was elevated to an axiological resource that limits the actions of the legislative body. From then on, we can speak of due process as a generic guarantee of freedom, that is, as a substantive guarantee. The overcoming of 'due process' as a procedural guarantee is basically due to the fact that a law that has complied with the established procedure and is valid and effective can also violate Constitutional Law. To carry out the judgment of reasonableness, U.S. doctrine invites examining, in the first place, the so-called '*razonabilidad técnica*' (technical reasonableness), within which the specific norm (law, regulation, etc.) is examined. Once it is established that the chosen norm is adequate to regulate a certain matter, it will be necessary to examine whether there is proportionality between the chosen means and the sought end. Having passed the criterion of 'technical reasonableness,' the '*razonabilidad jurídica*' (legal reasonableness) must be analyzed. For this, this doctrine proposes examining: a) *ponderative reasonableness*, which is a type of legal assessment resorted to when, in the presence of a certain antecedent (e.g., income), a certain provision is required (e.g., tax), and in this case, it must be established whether it is equivalent or proportional; b) *the reasonableness of equality*, this is the type of legal assessment that starts from the premise that equal antecedents must have equal consequences, without arbitrary exceptions; c) *reasonableness in the end*: at this point, it is assessed whether the objective to be achieved does not offend the purposes provided for in the constitution. Within this same analysis, it is not enough to affirm that a means is reasonably adequate to an end; it is also necessary to verify the nature and size of the limitation that a personal right must bear because of that means. In this way, if the same end can be reached by seeking another means that produces a less burdensome limitation on personal rights, the chosen means is not reasonable. It was in judgment number 01739-92, at eleven hours forty-five minutes on the first of July, nineteen ninety-two, where an attempt was first made to define this principle, as follows:\n\n\"Reasonableness as a parameter of constitutional interpretation. But a further step was taken in the Anglo-American jurisprudential tradition, by extending the concept of due process to what in that tradition is known as substantive or substantial due process –substantive due process of law–, which, in reality, although it does not refer to any procedural matter, constituted an ingenious mechanism devised by the Supreme Court of the United States to assert its jurisdiction over the federated States, in line with the Fourteenth Amendment to the Federal Constitution, but which among us, especially in the absence of that necessity, would simply be equivalent to the principle of reasonableness of laws and other public, or even private, norms or acts, as a requirement of their own constitutional validity, in the sense that they must conform, not only to the specific norms or precepts of the Constitution, but also to the sense of justice contained therein, which implies, in turn, the fulfillment of fundamental requirements of equity, proportionality, and reasonableness, understood as suitability to achieve the proposed ends, the presumed principles, and the values presupposed in Constitutional Law.\n\nHence, laws and, in general, norms and acts of authority require for their validity, not only to have been promulgated by competent bodies and through due procedures, but also to pass the substantive review for their concordance with the supreme norms, principles, and values of the Constitution (formal and material), such as those of order, peace, security, justice, liberty, etc., which are configured as standards of reasonableness. That is to say, a public or private norm or act is only valid when, in addition to its formal conformity with the Constitution, it is reasonably founded and justified according to the constitutional ideology. In this way, it is sought not only that the law is not irrational, arbitrary, or capricious, but also that the selected means have a real and substantial relationship with its object. A distinction is then made between technical reasonableness, which is, as stated, the proportionality between means and ends; legal reasonableness, or the adequacy to the Constitution in general, and especially, to the rights and freedoms recognized or assumed by it; and finally, reasonableness of the effects on personal rights, in the sense of not imposing on those rights other limitations or burdens than those reasonably derived from the nature and regime of the rights themselves, nor greater than those indispensable for them to function reasonably in the life of society.\"\n\nGerman doctrine made an important contribution to the topic of \"reasonableness\" by successfully identifying, in a very clear manner, its components: *legitimacy, suitability, necessity, and proportionality in the strict sense*, ideas it develops by affirming that they have already been recognized by our constitutional jurisprudence:\n\n\"... *Legitimacy* refers to the fact that the objective sought with the challenged act or provision must not be, at least, legally prohibited; *suitability* indicates that the questioned state measure must be apt to effectively achieve the intended objective; *necessity* means that among several equally apt measures to achieve such objective, the competent authority must choose the one that least affects the legal sphere of the individual; and *proportionality in the strict sense* provides that apart from the requirement that the norm be apt and necessary, what is ordered by it must not be out of proportion with respect to the intended objective, that is, it must not be 'demandable' from the individual ... (Judgment of this Chamber number 03933-98, at nine hours fifty-nine minutes on the twelfth of June, nineteen ninety-eight). In judgment number 08858-98, at sixteen hours thirty-three minutes on the fifteenth of December, nineteen ninety-eight, it was the subject of recent development, a resolution in which the guidelines for its analysis were indicated, both for administrative acts and for norms of a general nature:\n\nThus, an act limiting rights is reasonable when it meets a triple condition: it is *necessary*, *suitable*, and *proportional*. The necessity of a measure makes direct reference to the existence of a factual basis that makes it essential to protect some good or set of goods of the community -or of a certain group- through the adoption of a measure of differentiation. That is, if said action is not carried out, important public interests will be injured. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid either. Suitability, for its part, involves a judgment regarding whether the type of restriction to be adopted fulfills the purpose of satisfying the detected need. The unsuitability of the measure would indicate to us that there may be other mechanisms that better solve the existing need, some of which might fulfill the proposed purpose without restricting the enjoyment of the right in question. Proportionality, in turn, refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction that is imposed or intended to be imposed, such that the limitation is not of a markedly greater magnitude than the benefit intended to be obtained from it for the benefit of the community. Of the last two elements, it could be said that the first is based on a qualitative judgment, while the second is based on a quantitative comparison of the two objects analyzed.\"\n\nFinally, recently, in judgment number 05236-99, at fourteen hours on the seventh of July, nineteen ninety-nine, when mentioning the principle of constitutional reasonableness as a constitutional parameter, it is done in a practical manner, that is, with a view to being able to carry out the constitutional review of the norms and/or acts challenged before this Constitutional Court;\n\n\"In the sense of the criterion set forth above, this Chamber has been applying the rule in its jurisprudence. Let us now see the analysis of the specific case. *On the test of 'reasonableness'*: To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide proof or at least elements of judgment on which to base their argumentation, and the same procedural burden corresponds to whoever rebuts the arguments of the action, and failure to comply with these requirements makes the claims of unconstitutionality unacceptable.\n\nThe foregoing, because it is not possible to conduct an analysis of \"reasonableness\" without the existence of a coherent line of argument that is evidentiarily supported. That is, of course, when the cases are not those whose \"unreasonableness\" is evident and manifest.\" (Judgment 2000-02858 of fifteen hours fifty-four minutes of the twenty-ninth of March of two thousand)\n\nThe claimant asserts that the challenged norms are unreasonable because less harmful measures could have been used regarding the exercise of freedoms. However, he does not specify which of the limitations or requirements he refers to, nor does he indicate what that dissatisfaction with technical reasonableness consists of. Nor does he provide evidence or elements of judgment that would allow for an examination of the reasonableness of the questioned norms. In general terms, without entering into a particularized analysis of each of the challenged norms (given the claimant's omission), this Chamber considers that the challenged regulations are adequate and suitable to regulate the matter and, furthermore, necessary, since they seek the regulation and control of outdoor advertising (publicidad exterior), not only for reasons of urban planning, but also for the due respect of the right to a healthy and ecologically balanced environment.\n\nIX.- Tax nature of the license payment (pago por licencia). Violation of the principle of legal reserve (reserva de ley). Regarding the license payment provided for in the challenged Article 69, the Chamber observes that, as the Procuraduría rightly points out in its report, it is a tax (impuesto) that is not provided for nor authorized by Law. Regarding the nature of the patent tax (tributo por patente), it has been stated:\n\n\"As the action questions the application of the so-called patent tax -with which all lucrative activity carried out in the Canton of Buenos Aires is taxed (Articles 96 and 98 Código Municipal)-, specifically, that charged on pineapple production, it is essential to point out some important notes on that matter. Our legislation distinguishes between the license itself, which is the administrative act that enables the individual to exercise the respective activity, and the payment of the tax, properly speaking, which is called a patent (patente). The main theoretical justification for imposing this type of tax is the traditional one in the field of Municipal Law, which defines it as the imperative need to cover the cost of the public services that the individual receives from the municipality; that is, that commercial businesses or lucrative activities, according to the nomenclature used by our Código Municipal, are highly benefited by security, order, cleanliness, and municipal activity in general, and therefore must contribute to the Local Government. In doctrine, patent or tax on lucrative activity is the name given to those that tax businesses based on more or less easy-to-determine external characteristics, without there being a single system in this regard. On the contrary, the systems for imposing this tax are among the most varied, but they do have certain characteristics in common. This is why the laws of the patent tax differ from one municipality to another, and the tax bases can be equally varied, such as on gross profits, gross sales, based on categories or classes, or on a minimum and maximum patent.\n\nIII- From the perspective of Tax Law doctrine, its most important legal principles are: a) the legality of taxation (legalidad de la tributación), also known as legal reserve; or what is the same, the exclusive regulation of tax activity by formal law; b) the principle of equality before the tax and public charges, which alludes to the need to ensure the same treatment for those in analogous situations (a concept related more to materiality than formality); this principle allows the formation of different categories, to the extent that they are reasonable, which in turn demands the total exclusion of arbitrary discrimination; c) that of generality, which implies that persons or goods determined singularly must not be affected by the tax, because in such a case the taxes acquire a persecutory character or one of odious or illegitimate discrimination. Said another way, the tax must be conceived in such a way that any person whose situation coincides with the one indicated as the taxable event (hecho generador) will be subject to the tax. In the specific case, there is no doubt that the tax was authorized by a law, and what is appropriate is to analyze whether the differentiation alleged by the claimant, and which stems from the aforementioned patent law, is reasonable or if, on the contrary, it creates arbitrary discrimination against her.\"\n(Judgment 1992-02197 of fourteen hours thirty minutes of the eleventh of August of nineteen ninety-two)\n\nThe principle of legal reserve in tax matters is of constitutional nature and is entirely applicable to the payment of municipal licenses or patents. While it is true that an original municipal taxing power is recognized, by virtue of the autonomy that the Constitution itself confers on those Entities, it is necessary that authorization from the Legislative Assembly be obtained, as indicated in Article 121 subsection 13) of the Constitution (Carta Fundamental):\n\n\"Repeatedly, this Tribunal has indicated that the autonomy of the municipalities derives from the provisions of Article 170 of the Political Constitution, a principle from which the municipal taxing or impositive power emanates to procure the necessary income and to cover the cost of the public services that the individual receives from the municipality, provided they comply with the necessary legal procedures, and are manifested in taxes that conform to the constitutional principles proper to that matter; such that the Legislative Assembly only issues in this matter a 'typically tutelary act of authorization', when it exercises the power conferred by subsection 13) of Article 121 of the Political Constitution, so that the initiative for the creation, modification, or extinction of municipal taxes corresponds to these entities, as well as the power to exempt from municipal taxes (in this sense, see among others judgments number 1631-91, of fifteen hours fifteen minutes of the twenty-first of August of nineteen ninety-one; 0140-94, of fifteen hours fifty-one minutes of the eleventh of January of nineteen ninety-four; 2494-94, of fourteen hours fifty-four minutes of the twelfth of July of nineteen ninety-four; 4496-94; 4497-94, of fifteen hours thirty-nine minutes of the twenty-third of August of nineteen ninety-four; 4510-94, of fourteen hours fifty-one minutes of the twenty-fourth of August of nineteen ninety-four; 4512-94, of fourteen hours fifty-seven minutes of the twenty-fourth of August of nineteen ninety-four; 6362-94, of fifteen hours thirty-nine minutes of the first of November of nineteen ninety-four; 1269-95, fifteen hours forty-eight minutes of the seventh of March of nineteen ninety-five; 2311-95, of sixteen hours twelve minutes of the ninth of May of nineteen ninety-five; 2631-95, of sixteen hours three minutes of the twenty-third of May nineteen ninety-five; 1974-96, of nine hours of the thirtieth of April of nineteen ninety-six; and 4982-96, of ten hours twelve minutes of the twentieth of September of nineteen ninety-six).\n\n\"Municipalities do not make a mere proposition to the Legislative Assembly, but rather they must be able to submit to it true tax impositions. This means that the municipal taxing act is terminal and definitive, creator of the tax in a taxing procedure opened for this purpose by each municipality, not initial in a presumed legislative procedure with the same function, as if it were a simple proposition subject to the constitutive and free will of the legislator. Consequently, the municipal tax-setting frames the matter of the legislative pronouncement, whose function is tutelary and not constitutive of the municipal tax, and whose consequent result can only be the authorization or disauthorization of what is proposed, not the substitution of the municipal will\n\" (judgment number 1631-91, cited above).\n\nThis competence is established in Article 68 of the current Código Municipal which provides:\n\n\"The municipality shall agree on its respective budgets, propose its taxes (tributos) to the Legislative Assembly, and set the rates (tasas) and prices for municipal services. Only the municipality, by prior law authorizing it, may issue exemptions (exoneraciones) of the indicated taxes.\"\n\nLikewise, from the autonomy proper to these corporations derives the possibility of administering its resources, insofar as each local government is free to define the limits of its own taxing power, from which the systems of municipal tax imposition for their specific collection and application are among the most varied.\"\n(Judgment 1999-05445 of fourteen hours thirty minutes of the fourteenth of July of nineteen ninety-nine)\n\nIn application of the foregoing, Article 69 must be declared unconstitutional insofar as it provides for a license payment, for not having the due authorization of the Legislative Assembly, in breach of the principle of legal reserve in tax matters.\"\n\nFollowing the same jurisprudential line referred to in that judgment, the Chamber considers that Article 54, paragraph three of the Regulatory Plan of the Canton of Moravia, is unconstitutional for violating the principle of legal reserve in tax matters, provided for in numeral 121 subsection 13) of the Political Constitution. The foregoing, insofar as it establishes a payment for a license for outdoor advertising, without the same having been approved by the Legislative Assembly. Regarding the other challenged articles, the action is declared without merit.\n\nTherefore:\n\nThe action is partially granted. Consequently, Article 54, paragraph three of the Regulatory Plan of the Canton of Moravia published in La Gaceta number 162 of August 24, two thousand, is annulled. This unconstitutionality is declaratory and, in accordance with the power provided for in Article 91, paragraph two of the Ley de Jurisdicción Constitucional, in order to avoid a serious dislocation of legal certainty, by virtue of the matter, the effects of the judgment are dimensioned, in the sense that the declaration governs only for the future and not retroactively. In all other respects, the action is declared without merit.- Let this pronouncement be noted in the Official Diary La Gaceta and published in its entirety in the Judicial Bulletin. Notify.\n\n \n\n \n\n \n\nLuis Fernando Solano C.\n\nPresidente\n\n \n\n \n\nLuis Paulino Mora M. Carlos M. Arguedas R.\n\n \n\n \n\nAna Virginia Calzada M. José Luis Molina Q.\n\n \n\n \n\nJosé Miguel Alfaro R. Teresita Rodríguez A.\n\n \n\n.\n\nFor its part, Article 121, subsection 13) of the Political Constitution establishes as a legislative power the approval of municipal taxes. Therefore, if the charge for granting a sign authorization constitutes a tax, it necessarily must be authorized by law. As indicated, there are indeed legal provisions empowering the municipality to require a license to place publicly visible signs and to issue regulations and sanctions regarding signs, but no legal provision was found that establishes a tax whose taxable event would be obtaining the license to place signs in public places. Consequently, it is considered that Article 54 of the Regulation under commentary is unconstitutional, insofar as it creates a tax obligation, specifically a tax, without the procedure constitutionally provided for that purpose, that is, the approval of a law at the request of the respective municipality.
5.-
Mr. Gerardo Álvarez Herrera, in his capacity as executive president of the Instituto Nacional de Vivienda y Urbanismo, responds at folios 48 and 49 to the hearing granted, stating that the Institute's participation in the approval of regulatory plans, in accordance with the provisions of Articles 16 and 17 of the Ley de Planificación Urbana, is based on a more technical and specific criterion, characteristic of urban planning and territorial ordering, which has no relation to the regulation that municipalities may implement regarding the installation of advertisements, signs, posters, and notices, since, in accordance with what the Ley de Construcciones establishes, this function is the authority of the municipalities. Article 170 of the Political Constitution grants Municipalities autonomy, so that, via regulations, they can develop limitations authorized by law. For its part, Article 121 of the Constitution establishes in subsection 13) that it corresponds to the Legislative Assembly to establish national taxes and contributions and to authorize municipal ones. The Ley de Construcciones authorizes municipalities to grant licenses for the placement of advertisements, signs, posters, and notices, without this being considered a tax, which would require the approval of the Legislative Assembly as it is a matter with a legal reserve. Consequently, it considers that the provisions in the Regulatory Plan of the Canton of Moravia, Articles 51 to 57 of the ninth chapter, have their legal foundation in the Ley de Construcciones, so there would be no violation of the provisions of Article 121, subsection 13).
6.-
The edicts referred to in the second paragraph of Article 81 of the Ley de la Jurisdicción Constitucional were published in numbers 156, 157, and 158 of the Judicial Bulletins of the 16th, 17th, and 20th of August, two thousand one.
7.-
By virtue of the provisions of Articles 9 and 10 of the Ley de Jurisdicción Constitucional, the holding of the oral and public hearing is dispensed with.
8.-
In the proceedings and terms, the legal prescriptions were observed.
Drafted by Magistrate Solano Carrera; and,
Considering:
I.- On admissibility.
Regarding standing to file the action, a basic admissibility requirement, it must first be said that the plaintiff Nombre39445, who states he is acting in his capacity as president of the \"Chamber of Commerce, Industry, and Related Activities of Moravia,\" lacks standing, given that the challenged rules are capable of being applied in an individual and direct manner, for which reason, according to the prevailing jurisprudential criterion, the existence of a pending underlying matter is essential, where the unconstitutionality of the rule had been invoked as a reasonable means to protect the right or interest considered harmed. In that sense, it has been stated:
\"On the topic of standing and since the plaintiffs use the concept of 'members' and this could lead to understanding that their action is aimed at protecting corporate interests, the Chamber expressed in ruling number 07155-00 of 14:56 hours on August 16, 2000:
\"Considering: I.- Object of the action.
The present action is brought to declare the unconstitutionality of Articles 29, 31, 34, 45 first paragraph, 46, 48, 52, and 57 of Law number 2762 of June twenty-first, nineteen sixty-one and its amendments, which is the Law on the Regime of Relations between Coffee Producers, Processors, and Exporters; Article 35 of Executive Decree number 17013-MEC of May fifth, nineteen eighty-six, which is the Regulation to the Law on the Regime of Relations between Coffee Producers, Processors, and Exporters; Article 9 first paragraph of Law number 7770 of April twenty-fourth, nineteen ninety-eight, which is the Law Creating the National Coffee Stabilization Fund; and Articles 27 and 29 second paragraph of the Income Tax Law, considering them contrary to Articles 33, 40, 45, 46, and 121 subsection 13 of the Political Constitution.-
II.- On standing to file the action.
The plaintiffs Alberto Julián Esquivel Prestinary, and Adolfo Esquivel Pacheco, in their capacity as President -the first- and Vice President -the second- of the Association for the Development, Improvement, and Defense of National Coffee Growing, base the standing held by their represented entity to bring this action of unconstitutionality on the argument that the Association they represent holds a corporate interest, so that, according to the provisions of Article 75 of the Ley de la Jurisdicción Constitucional, it is legitimized to directly bring action in this venue. That is, they appear alleging the ownership of a collective interest derived from being representatives of the referred association. In this regard, the jurisprudence of this Chamber previously determined that corporate entities were authorized to directly request the declaration of unconstitutionality of a rule, when it directly affected the sphere of action of the entity and its members. The collective interest would lie in the fact that the entity was naturally formed to defend a right or interest that was harmed by the impugned rule. It did not matter, for the purposes of the admissibility of the Action of Unconstitutionality, that the rule was susceptible to directly affecting the rights of the members and that, therefore, they were authorized to appear before the Constitutional Review Court, albeit through the indirect procedure, by way of exception. However, such jurisprudence is not valid today. A jurisprudential change occurred starting with ruling number 6433-98 of ten hours thirty-three minutes on September fourth, nineteen ninety-eight. In application of this ruling, resolution number 01830-99 is issued, at sixteen hours twelve minutes on March tenth, nineteen ninety-nine, considering that when the normative provision being challenged is destined to materialize in numerous and diverse cases of application, which directly affect the legal sphere of individuals, standing must be established based on the first paragraph of Article 75 of the Ley de la Jurisdicción Constitucional: '…Recently, the Chamber has clarified the scope of the provisions of the first two paragraphs of Article 75 of the Ley de la Jurisdicción Constitucional and has indicated that when the normative provision challenged in an action of unconstitutionality is destined to materialize in numerous and diverse cases of application that directly affect the legal sphere of singular persons, such that they can give rise to claims in administrative or jurisdictional venues, from which actions of unconstitutionality can be derived against it, the assumptions of the second paragraph of the indicated article do not apply. That is, when in the second paragraph of Article 75 ibidem it is indicated that a prior pending case is not necessary to file the action of unconstitutionality, and that -consequently- one can resort to direct standing for diffuse or collective interest, it refers to the assumption where 'due to the nature of the matter, there is no individual or direct injury,' that is, to the hypothesis in which, given the matter the challenged provision regulates, it is not possible to obtain a justiciable case of singular and concrete application. Hence, the pending case is necessary to file the action of unconstitutionality when it is foreseeable that the justiciable case of singular and concrete application will occur, given the nature of the challenged law. This was expressly stated in ruling No. 6433-98 of 10:33 hours on September 4, 1998, and justifies that standing cannot be admitted based on the three assumptions established in the second paragraph of Article 75 of the indicated Law, namely, that there is no possibility of individual and direct injury, that one holds the defense of diffuse interests or those concerning the community as a whole, when there is a possibility that, upon materializing, the law produces individualizable effects on specific persons who are in a position to bring claims based on which the action of unconstitutionality can be deduced. Tax matters, almost as a general rule, are capable of producing a concrete, identifiable application on specific persons who are authorized to bring an administrative or judicial claim, thus obtaining the pending matter, the necessary support for the action of unconstitutionality…' In accordance with this new jurisprudential line, in matters where the interested parties have the possibility open to appear before the Constitutional Review Court through the exception path, they cannot excuse themselves by holding a collective interest and, therefore, in an association or corporation to which they belong, so that the latter appears directly before the Chamber. The foregoing because when the law is concretized, it produces individualizable effects on specific persons who are in a position to bring claims and thus access constitutional jurisdiction. In the present matter, this potentiality of the law to produce individualizable effects is evident, which is confirmed by the fact that in relation to some of the challenged provisions, the existence of an administrative interpretation is alleged (which implies concretion of the rule), the erroneous application of other rules is affirmed, and, additionally, provisions of a tax nature that will be applied to the individually considered taxpayer, and not to the corporate entity, are challenged. Considering the above, it must be concluded that the circumstance that the Association for the Development, Improvement, and Defense of Coffee Growing has among its purposes the defense of the economic and social interests of coffee producers, processors, and exporters (see folio 173 of the case file), does not empower it to directly access the Constitutional Chamber, alleging the holding of a collective interest. For the reasons stated, the present action is inadmissible and must be declared so.\" It is evident, then, that these jurisprudential precedents are applicable to the specific case, and from the perspective of what the first paragraph of Article 75 of the Ley de la Jurisdicción Constitucional provides, the action is unfounded.\"
(Ruling 2000-11033 of thirteen hours fifty-seven minutes on December thirteenth, two thousand.)
The plaintiff acting on behalf of the company \"Mecue Fcjm S. A.,\" for his part, does have standing to file the action, in accordance with the provisions of Article 75, first paragraph, of the Ley de Jurisdicción Constitucional, given that he has a pending underlying matter, which is the recurso de amparo processed under case file number 01-003373-0007-CO, where, by means of the resolution of fifteen hours ten minutes on April eighteenth, two thousand one, a deadline was granted to file the action.
II.- Object of the challenge.
Articles 51 to 67 of Chapter IX of the Regulatory Plan of the Canton of Moravia, published in La Gaceta number 162 of August twenty-fourth, two thousand, are challenged. These rules state:
\"Article 51. Scope. The installation of advertisements, signs, posters, or notices on the exterior of buildings in the canton of Moravia shall be governed by this Regulation.
Article 52. Licenses. To place or affix advertisements, signs, posters, or notices, a license must be requested from the Municipality. The license shall be requested by the owner of the structure on which the advertisement is to be affixed, with the consent of the owner of the property where the structure is placed, when applicable.
The owner of the commercial patent for the business that will be announced by the sign for which the license is requested, and the property, must be up to date in the payment of municipal taxes, contributions, and service payments.
The Municipality has the power to limit the surface area that an advertisement or a set of advertisements will occupy on a facade, or to deny its placement.
Article 53. Technical requirements: When the installation of the advertisement requires the use of special structures of iron, wood, or any other acceptable material, a plan thereof must be submitted, as well as the necessary drawings to assess the manner in which it will be installed and the calculations relating to its stability. These drawings shall be made on 45-centimeter sheets. This plan must include the following details:
Scheme of the facades and floor plan of the building where the advertisement will be installed, clearly showing, with the necessary dimensions, its position.
Detail of the advertisement and the structure supporting it, as well as the manner in which it will be attached to the building or land.
Site plan of the building on which the advertisement will be installed.
In the lower right corner, a title indicating:
Name of the property owner.
Name of the advertisement owner.
Name and signature of the responsible engineer or expert who has made the design. Article 54.- Application and payment for license: Every license application must be submitted in writing using a form that must be collected at the Patent Office and must be submitted to the Engineering Department of the Municipality of Moravia, to carry out the corresponding calculations for its payment, in addition to having to adequately follow the requirements indicated by articles two and three, and with the approval of the Planning Department of the Municipality, in order to proceed with the corresponding procedure.
For said license application to take effect, the sum of one hundred colones must be paid for the administrative procedure as general paperwork fees. Furthermore, this sum will be automatically adjusted every six months, using for this the inflation index provided by the central government of the Republic.
Regarding the payment for the license itself, i.e., the granting of the permit for the installation of a sign, it shall be calculated as follows:
Permanent sign: The payment is calculated for each square centimeter of advertising message, charging a special rate for the occupation of public space by the projection of the advertising message, according to the following formula:
TE=TB* (VR*CC) CIV. (CL)
Where: TE: specific rate
TB: base rate, which corresponds to a fixed amount (adjustable according to the semi-annual inflation index and in accordance with the general consumer price index) per square centimeter (250 colones x cm2), for the advertising message, which will be weighted by the following coefficients:
VR: Real value of the sign's cost (which is equal to one percent of the sign's value)
CC: classification coefficient
CIV: visual incidence coefficient
CL: luminosity coefficient
Occasional sign: The payment is calculated for each square centimeter of advertising message, charging a special rate for the occupation of public space by the projection of the advertising message. This base rate corresponds to a fixed amount that is adjustable according to the semi-annual inflation index and in accordance with the general consumer price index; therefore, 350 colones per cm2 must be paid.
(Highlighting is ours)
Article 55.- Third-party rights. The licenses issued for the placement of advertisements shall always be granted without prejudice to the rights of third parties.
Article 56.- Prohibitions. The installation of advertisements that encroach upon public roads is not permitted, except those allowed in articles nine and ten. It is strictly forbidden to affix or paint signs, advertisements, programs, etc., of any kind and material in the following places:
a) Public buildings, schools, and temples.
b) Buildings cataloged by the Municipality as monuments.
c) Posts, light poles, kiosks, fountains, trees, sidewalks, curbs in general, ornamental elements of squares and promenades, parks, and streets.
d) Private houses and fences.
e) On billboards belonging to others.
f) At a distance indicated by the Municipality according to the circumstances, which may not be less than thirty centimeters in any direction from nomenclature plates or traffic signs.
g) In places where they obstruct traffic visibility.
h) On hills, rocks, trees, etc., that may affect the panoramic view or the harmony of the landscape.
In other places, at the judgment of the Municipal Corporation, it reserves the right to determine the impact of the sign or signs placed in the canton, and may therefore deny their installation.
Article 57.- Limitations. Advertisements must be of such dimensions, designs, and placement that they do not detract from the architectural elements of the facades on which they are placed or those nearby, nor that, when projected into the perspective of a street, square, or monument, they alter its architectural value. The Municipal Engineering Department may, for technical or aesthetic reasons, limit the surface area that a notice or set of notices will occupy on a facade, or deny its placement, in accordance with the Planning Department.
Article 58.- Projecting advertisements. All drawings, models, signs, notices, flags, or any other representation used to advertise, warn, or indicate a direction, as well as clocks, spotlights, projection devices, among others, secured to a building by means of a post, masts, brackets, and other types of wooden supports, such that any of the ads, etc., mentioned apart from them, is visible against the sky from any point on the public road, are classified as projecting advertisements. The present Regulation shall also apply to this type of advertisements.
Article 59.- Protruding advertisements. Those that project beyond the building lines of the construction or property on which said advertisements are installed are classified as protruding advertisements; they may occupy up to the entire width of the sidewalk, when placed at a height above the sidewalk level greater than 2.50 m.
Article 60.- Signs under marquees. Signs placed under marquees shall have a minimum height of 2.25 m, provided they do not project beyond two-thirds of the width of the sidewalk, if placed at a height greater than 2.50 m above its level.
Article 61.- Luminous advertisements. Luminous advertisements must be made of appropriate, artistic materials and suitably illuminated. In these luminous advertisements or those using mirrors, dazzling, damaging, or simply disturbing people's eyesight must be avoided. Intense reflections or concentrations of light, the alternations of absolute light and darkness, and harmful contrasts of vivid colors are prohibited. The variation in the illumination of advertisements with changes of light shall not be greater than fifty percent on commercial arteries and thirty-three percent on other roads.
Article 62.- Height. Advertisements placed on unbuilt lots adjacent to public roads shall be placed at the height and distance indicated by the Municipality, so as not to impair the minimum safety and visibility conditions. Those signs located over the public road may not have a height of less than 2.25 m.
Article 63.- License term. Licenses for advertisements are granted for a maximum renewable term of one year. The owners must manage the renewal of the license before said term expires, which will be granted to them if the conditions of stability and conservation of the advertisement are satisfactory to the Municipality, for which they must carry out the corresponding procedures.
Article 64.- Processing of licenses or renewals. The Municipality shall process, within a period not to exceed fifteen business days, both the request for a permit to install advertisements and the request for their renewal. After said period has elapsed without the Municipality having issued a decision, the renewal permit shall be considered automatically authorized, together with its respective payment to the Municipality.
Article 65.- Cancellation of licenses. The Municipality may cancel the license for an advertisement and order its removal at the owner's expense, when unauthorized modifications have been made by the Municipality, or when it is in conditions that affect its stability.
Article 66.- Sanctions. The Municipality shall impose, in accordance with the seventh chapter, Article 33 of the Ley de Construcciones, fines ranging from 5,000.00 colones to 10,000.00 colones for violations of this Regulation, which shall be adjusted semi-annually in accordance with the inflation index indicated by the competent agency of the Central Government. It shall order the dismantling or removal, at the owner's expense, of advertisements and structures it considers unsuitable or dangerous, but if the owner does not comply with what is ordered by the municipal corporation, the violator or violators shall be charged the actual costs for carrying out this task by the Municipality. In accordance with Article 98 of the Ley de Construcciones, refusal to comply with the Municipality's orders, or recidivism of the offenses, shall be punished with the repetition of the fines, with an increase over the amount of the original fine of 100%, each time they must be reimposed. The Municipality may resort to the police to enforce its provisions.
For repeat offenders, the Municipality may cancel the commercial patent.
In those cases of signs installed on vacant lots or on buildings, with or without the consent of the property owner and the owner of the commercial or residential establishment, the fine shall be charged to them, and in the latter case, the provisions of the preceding paragraph shall apply. Except if the natural or legal person responsible for the installation of the sign provides sufficient security, in the judgment of the respective unit, to cover any damage or fine that might eventually arise.
Article 67.- Regarding the destination of the economic resources collected, it shall be allocated as follows:
25% of the amount collected shall be allocated annually to the local Moravian Red Cross.
75% of the amount collected shall be allocated for unrestricted use by the municipal administration.
\n\nThe claimant considers that said regulation is contrary to the provisions of Articles 11 and 121, subsection 13) of the Political Constitution, as well as to the principle of reasonableness because they establish the payment of a tax, which is the business license tax (impuesto de patente) for the placement of signs, without the constitutional procedure for their creation having been followed. He affirms that by virtue of the principle of legal reserve, the law must contain at least the basic and structural elements of the tax (taxable event, passive subjects, and elements necessary for setting the quantum, as well as exemptions). Lastly, the legal system must be governed by the principle of reasonableness, such that its norms have a direct and proportional relationship between the chosen means and their end, that is, the legislator must not detach himself from his social environment, much less from reality, when issuing norms.
III.- On the merits.
The issue raised in this action was resolved by this Chamber in judgment number 2002-5503 at fourteen thirty-four hours on today's date. In that resolution, it was stated:
\"V.- Legitimacy of the challenged restrictions.
The regulation being challenged, as could be seen in the object of this action, intends to regulate and control everything related to outdoor advertising and operational signs in the central canton of San José, with the goal of achieving a balance between the architectural and urban work and the advertising message, as a means of communication, information, and identification in the cities (Objective of the Regulation, Title VIII). It must be recognized that while there is indeed a right to outdoor advertising, derived from the exercise of freedom of commerce, to the extent that such advertising affects the interests of third parties, as well as potentially public morality and order, it is legitimate to regulate and limit its exercise. Excessive and uncontrolled signage decidedly infringes upon the right that every person has to a healthy and ecologically balanced environment, guaranteed in Article 50 of the Political Constitution. The Organic Environmental Law states in Articles 59 and 71 what is meant by environmental contamination and specifically by visual contamination, which is that caused by actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum limits admissible by established technical standards or those issued in the future. It is even established in that Law that to prevent that type of contamination, the Executive Branch must dictate the appropriate measures and promote their execution through the competent bodies, public entities, and municipalities. On the other hand, a right of the State and of the Municipalities specifically has also been recognized to limit the right to private property, by virtue of what has been called urban planning:
\"…there is no merely logical possibility of unlimited rights existing, since the very essence of the legal order is to articulate a system of limits between the positions of all subjects, and an unlimited subjective right could be the cause of the destruction of the legal order, that is, it could be incompatible with it. The mission of the Law is not to make exceptions to the supposed prior unlimited nature of fundamental rights, but precisely to design and define them for their articulation within the social concert. This is no exception in the case of regulating the right to property, an indisputable and direct creation of the legal system. Thus, the position of the absolute character of property, as an unlimited and exclusive right, only affected by reasons of expropriation for the construction of public works -the only limitation admitted in the past century-, has been replaced by a new vision of property, which, while still being regulated as a subjective right, foresees that its powers are limited and, moreover, that it is subject to duties and obligations. Such limitations on the right to property are a product of the very fact of being part of a community, the same one that guarantees that right, but which subjects it to certain regulations with the purpose of achieving an optimal and harmonious enjoyment of the rights of all individuals, and which are characterized, as a matter of principle, by not being compensable. In the specific case of the right to property, the system of intrinsic or internal limitations refers to the proper or essential content of the property right, a minimum content that has been defined as the faculty to enjoy and use the asset for personal benefit in the case of private property, or for social utility in the case of public property; and the system of external limitations on property is made up of limitations of social interest, which are of legislative origin and of the utmost institutional importance, requiring legislative approval with a supermajority vote for their imposition. As stated, in principle, by themselves and by definition, the limitations of social interest imposed on property are not compensable, as they do not imply expropriation, that is, when the property does not suffer dismemberments that make the right disappear. Of course, they do imply a burden or legal duty -in the strict sense-, a duty not to do, or at most, to tolerate the State's intrusion into the property for public purposes, a duty that is added to the powers or faculties of the owner, but without distorting or destroying them. These limitations must be of a general nature, which implies not only their addressee, but also the factual assumption of the application of the same, since when they become singular or specific, they could be comparable to true expropriations. In this sense, and as will be explained later, the imposition of limitations on property for urban planning purposes is essential for coexistence in society, not constituting an expropriatory activity that requires prior compensation, according to the terms required and foreseen in the second paragraph of Article 45 of the Political Constitution.
V. ON THE SOCIAL FUNCTION OF PROPERTY AND ITS RELATIONSHIP WITH THE LIMITATIONS ON THE RIGHT TO PROPERTY - SECOND PARAGRAPH OF ARTICLE 45 OF THE POLITICAL CONSTITUTION. A conception of the right to private property in absolute and practically unlimited terms became the basic fulcrum upon which the Western system was established, consecrating as the basic center of the legal system the complete inviolability of the right to property, insofar as it implied complete dominion over the asset, in an absolute, general, independent, full, universal, unlimited, and exclusive manner. However, this concept has evolved, reaching the point of proposing the defense of property based on social harmony, and on a social sense of land ownership. The legal basis upon which the protection of property rests is thus modified, and from being an exclusive right for the individual, it comes to correspond to an obligation in favor of the harmonious coexistence of society. The idea of the 'social function' of property emerged, in which every individual has the obligation to fulfill certain communal duties, in direct proportion to the place they occupy and the interests of the social group they represent. The content of this 'property-function' consists of the owner having the power to employ the asset object of the domain in satisfying their own needs, but correspondingly having the duty to also place it at the service of social needs when such behavior is essential. With this new concept, the powers of the legislator are broadened to determine the content of the right to property, which is achieved through the limits and obligations of social interest that they may create, putting an end to its exclusive, sacred, and inviolable sense. This thesis has been recognized by this Court previously; thus, in amparo judgment number 5097-93, it indicated:
'I.) The inviolability of private property is a constitutional guarantee enshrined by canon 45 of the Political Charter. This right, contrary to how it was conceived in other times, is not of a static nature, but rather, in accordance with the demands of our time, it must be considered elastic and dynamic, that is, it attributes to its holders, both internally and externally, the powers, duties, and limitations. The owner's power over the property is determined by the function it fulfills. The object of the right to property has undergone significant transformations. Currently, not only is the right of owners protectable, but also various general or social interests that coexist with it. Objective law frames the content of subjective rights. Each object of law implies a peculiar form of appropriation. Thus, for example, the faculties of ownership relating to an agricultural estate are very different from those corresponding to a property located in an intensively used urban sector'.
Likewise, alongside this principle -of the social function of property- is integrated that of social solidarity, from which, as this Constitutional Court previously indicated,
'IV.- [...], our Political Constitution is imbued, it permits the levy borne by all in favor of all, or even by a few in favor of many, with the requirement that the natural use of the real estate is not affected to the limit of its value as a means of production, or its value in the market, that is, that it disappears as a producible identity'.
(Judgment number 2345-96, at nine twenty-four hours on the seventeenth of May of the current year.)
It should be noted that in almost all legislations, the concept of the right to private property conceived in an unlimited and absolute form has disappeared, and in the most important legal orders, a conception of property closely linked to the general demands of society is increasingly enforced; just as this Chamber previously pointed out in the cited judgment number 2345-96:
'Developing the concept of \"deprivation of a primary attribute of ownership\" that prevents the enjoyment of assets, we can say that limitation is a method for defining the content of or the exercise of the right to property, which qualifies and affects the right itself'.
VI. Article 45 of the Political Constitution enshrines, in our constitutional legal order, the right to property. In its first paragraph, it points out its 'inviolable' character and establishes the obligation on the part of the State to compensate the owner beforehand, when it must suppress it for reasons of 'legally proven public interest'. In the second paragraph, it establishes the possibility of establishing limitations of social interest on property, through a law approved by a qualified vote -a vote of two-thirds of the entire membership of the Legislative Assembly-. From the foregoing, it is clear that the obligation to compensate by the State is constitutionally foreseen uniquely and exclusively when dealing with expropriation and does not govern for limitations of social interest established by law approved by a qualified vote, in the terms already pointed out previously by this Constitutional Court in amparo judgment number 5097-93
'II.) Costa Rican legislation establishes the possibility that, through regulatory plans, private property may be limited for social interest, and Urban Planning Law can, in turn, develop them. The right to property is thus framed within certain reasonable limits, within the duties derived from it. Precisely for this reason, compensation is not necessary for urban planning limits and duties that are reasonable [...]'
It is clarified that the limitations or restrictions on property are of a general nature, and have the virtue of providing the individual with the necessary instruments to palliate the effects of the harmful activity of their congeners. It should be noted that their main purpose or objective is the rational use of property, thereby benefiting neighbors or, in general, all of society. In this sense, the Full Court, when it exercised functions of constitutional control, in an extraordinary session on the sixteenth of June of nineteen eighty-three, pointed out:
'The limitations -or limits- that it is possible to impose on property (apart from relations of neighborhood and other duties or charges dealt with by the Civil Code and special laws), are those of \"social interest\" authorized by the second paragraph of Article 45 of the Constitution and which are aimed at protecting interests of that kind, for the benefit of the entire society or of some of its communities; [...]'
VII. Certain limitations on property have always existed as rules incorporated into the Civil Code, such as those referring to the possession and transfer of real estate -Article 272-, by virtue of which division is prevented in case of co-ownership; those referring to the height of sidewalks -Article 303-; those establishing protection for possible damages caused to third parties due to the poor condition of buildings or trees -Article 311-; and especially the entire Title V called Charges or Limitations on Property Imposed by Law, which fixes, among others, the prohibitions against building near a party wall, wells, sewers, aqueducts, etc., -Article 404-, those prohibiting opening a window or skylight on a dividing wall, at a distance of at least two and a half meters -Article 406-, or that overlook rooms, patios, or corrals of the neighboring property -Article 407-. Other examples of the foregoing are constituted by public safety and health requirements, those compiled in the law that allow the authority to impose on the owner repairs, remodeling, or demolitions of buildings that threaten ruin or prove unhealthy, provisions mainly compiled in the Civil Code and the General Health Law. In this line of thought, mention should also be made of the laws referring to the protection of forests, natural beauties, cultural heritage, and monuments, which also imply limitations on property, such as the Ley Forestal, No. 7174 of the twenty-eighth of June of nineteen ninety, the Wildlife Conservation Law No. 7317, of the twenty-first of October of nineteen ninety-two, and the Historical, Architectural and Cultural Heritage Law No. 4, of October of nineteen ninety-five.
VIII. Notwithstanding what was pointed out in the previous recitals, it must be warned that the legitimate limitations that can be imposed on private property find their natural border in the degree of impact on the property; that is, when the restriction on the right to property becomes a true expropriation with the consequent obligation to compensate, because the right to property is made to completely disappear, or when the generality of the community is not affected. Thus, the Full Court pointed out regarding limitations to be imposed on property when they exceed the indicated limit, in an extraordinary session on the sixteenth of June of nineteen eighty-three:
'[...] that is, \"limitations\" as Article 45 calls them, but not dispossession of private property nor deprivation of a primary attribute of ownership, because preventing the enjoyment of assets is equivalent, at least in this case, to a form of expropriation without the requirement of prior compensation ordered by the political charter';
and as this Court indicated in the cited judgments number 5097-93 and 2345-96, where it stated:
'IV.) For the Chamber, the reasonable limits that the State can impose on private property, according to its nature, are constitutionally possible as long as they do not empty its content. When this occurs, it ceases to be a reasonable limitation and becomes a deprivation of the right itself'. (Judgment number 5097-93);
'That is, the attributes of property can be limited, as long as the owner reserves for himself the possibility of normally exploiting the asset, excluding, of course, the part or function affected by the limitation imposed by the State. Outside these parameters, if social welfare demands sacrifices from one or a few only, they must be compensated, the same as occurs when the sacrifice imposed on the owner is of such identity that it makes him lose the asset entirely. Thus, the limitation on property withstands constitutional analysis when the affectation of the essential attributes of property, which are those that allow the natural use of the thing within the current socio-economic reality, does not make the nature of the asset disappear or make the use of the thing impossible, because the State imposes authorization or approval requirements so complex that they imply, in fact, the impossibility of usufructing the asset'. (judgment number 2345-96);
IX. ON URBAN PROPERTY. The concept of property in urban planning law has been considered in legal doctrine not as a static unit or a single type, but rather there is talk of types, such as urban property, rural property, and industrial property, that is, depending on the function that the asset is tasked with and performs in life in society. In this evolution of the concept of property -and consequently of the right to property-, the urban phenomenon and the planning of urbanism have collaborated to a great extent, determining a new content for it, distinct from the traditional one. Thus, urban property is subject to a series of characteristics, for example: 1.- it is a delimited property (boundaries, party walls, volumetric property -third dimension-); 2.- it is subject to a determined destiny, defined in a regulatory plan or zoning regulations, a purpose that is not changeable by the owner, but rather is limitable and regulated by the respective authorities -local governments, in the first instance-; 3.- the use of the property is restrictive and sometimes obligatory; 4.- the property plays a particular role, including one of a temporary nature, as it operates within the validity of a regulatory plan, so since the plan is modifiable by the authority, the uses of the property could also be changed; 5.- in this sense, the limitations imposed on property by a regulatory plan must be understood as licit limitations; 6.- the affectation of property has the character of a 'limitation', that is, the property is subjected to a series of restrictions and obligations (subdividing, reparcelling, selling, building, conserving, fencing, construction permits, facade heights, setbacks, vehicle parking, certificates of occupancy, plot areas, etc.), whose purpose is to contribute to collective well-being, and therefore, to its own benefit; it being understood that these cannot be of such a nature that they imply the extinction or unbearable limitation that empties the content of the right to property, as they would imply a covert expropriation, consequently requiring compensation; 7.- in the event of practically nullifying the right to property, it converts the particular case into a situation of expropriation, and in this way, expropriation becomes a figure consubstantial to the urban property regime, because it is one of the means for the execution of urban planning by public entities; furthermore, the 'free transfer' (cesión gratuita) of part of the property for urban planning reasons on the occasion of urban developments for communication routes, green areas, and educational zones is possible; and 8.- it is of a formal character, since the title of ownership is not enough to exercise the attributes of the right, but rather its content must be specified, according to the permitted use in a regulatory plan or zoning regulations. It is important to note that by virtue of the urban planning process, urbanization must be conceptualized as a partial urban planning plan, because it affects only the sector being urbanized. In the face of the urban development process, two types of property coexist: that which is born with the particular urban development program (the construction of a subdivision (urbanización), for example), to which are consubstantial the limitations and charges that the control acts, expressed in the authorization given by the municipal administration for the very construction of the development, such as the lot size, setback areas, sidewalk width, building height, so that these are not compensable; and the property that predates the urbanizing plan, in relation to which, the limitations and charges that the authority has an interest in implementing will be compensable, depending on their nature and degree of impact on the right, because as noted in Recital V of this section, those will be so that imply a dismemberment of the right to property itself.
X. As legal doctrine points out, the 'city', as such, is a collective fact that conditions the life of its inhabitants, so there is no justification for entrusting the capital decisions about this collective fact (emergence, extension, character, density, destiny, etc.) to the simple 'convenience' of a few private landowners, which are generally determined or reflected in reasons of profit or for motives of economic utility. The authority regulating urban development cannot permit the depletion of soils, nor the over-density of populations, the liquidation of the system of gardens and green areas, etc., without attending to the needs and demands for collective services that the urbanizing activity itself creates, such as streets, sewers, water, electricity, telephone, transportation, educational centers, green areas, etc. Situations like those pointed out are what urban planning seeks to solve, by virtue of which, the use of property emanates from a public authority.
XI. By virtue of the urban planning process and urban planning, urban organization must translate into a regime regulating the right to property, insofar as the proper content of the right to property is defined through the various provisions that make up urban planning law, that is, regulatory plans and the regulations issued by municipal governments, and failing that -as will be seen later-, by the norms issued by the Instituto Nacional de Vivienda y Urbanismo (INVU). In this way, the limitations and duties imposed on private property are those that define the normal content of property; and urban organization establishes the limits of the faculties of the right to property, but does not constrain, reduce, or condition the exercise of the right, but rather defines the normal content of property in the function it fulfills.
XII. ON THE LIMITATIONS IMPOSED IN THE MATTER OF URBAN PLANNING. The imposition of limitations on property for urban planning purposes is essential for coexistence in society, not constituting an expropriatory activity that requires prior compensation, according to the terms fixed -and analyzed in the previous recitals- in the second paragraph of Article 45 of the Political Constitution. Such limitations on the right to property are a product of the very fact of being part of a community, the same one that guarantees that right, but which subjects it to certain regulations with the purpose of achieving an optimal and harmonious enjoyment of the rights of all individuals. In this sense, this Chamber has pronounced on the 'relative' nature of the right to property, insofar as it is subject to limits and restrictions on one or several of the attributes of property for urban planning reasons; and in various judgments, it has confirmed the 'social interest' nature of urban planning rules, imposed in accordance with what was ordered by the Political Constitution itself. Thus, in constitutional judgment number 1167-92, it pointed out:
'Even though our Political Constitution recognizes private property as a fundamental right of citizens, the enjoyment of such a right is not unrestricted, and Article 45 of the Constitution itself allows the Legislative Assembly to impose limitations of social interest on it. The Urban Planning Law is one of those limitations, and for this reason, the denial to grant a business license (patente) does not constitute a violation of the fundamental rights of the appellants [...]';
this thesis was reinforced by amparo judgment number 5303-93, in which it was said:
'Costa Rican legislation establishes the possibility of limiting private property for reasons of social interest. As indicated in the first Recital, the limitation on property imposed by a regulatory plan is constitutionally possible, because the right to property is not unlimited; rather, there exists a general framework within which the owner can act and which must be compatible with the constitutional content of that right. Based on what has been expressed, in the judgment of this Court, the limitation imposed, as long as it conforms to a current regulatory plan, does not violate, as suggested in the appeal, Article 45 of the Political Constitution, as long as that regulatory plan does not deconstitutionalize the private property that is affected by that instrument. A contrario sensu, if the limitations exceed the minimum parameters of reasonableness and proportionality, they would be contrary to the Political Constitution',
and, finally, in judgment number 6706-93, it declared the constitutionality of the Urban Planning Law.
XIII. In consonance with what was pointed out in Recital VIII., urban planning regulations may only support a claim for economic compensation by the owners of the affected land when these imply a dismemberment of the right to property, since compensation in the terms pointed out in the first paragraph of Article 45 of the Political Constitution is appropriate only when these regulations are not of a general nature or render the right to property nugatory, becoming true expropriations, as previously indicated. They are not susceptible to any compensation as long as they do not imply a reduction in the content of the property, as occurs with the establishment of the front yard (antejardín), which constitutes a typical urban easement (servidumbre urbana), since the owner maintains possession of their property, but in a diminished form, given that only their faculty of disposition is reduced.
\n\nThese latter are the limitations and duties that must be held as integral components of the content of the property right, since there is no reduction of the content of the property.\"Judgment 1996-04205 of fourteen hours thirty-three minutes of the twentieth of August of nineteen ninety-six.
Thus, outdoor advertising (publicidad exterior) is indeed an activity capable of causing harm to third parties, to morality, and to public order; because it directly affects the right of every individual to a healthy and ecologically balanced environment and the State's power to regulate matters concerning urban planning. From this perspective, as a first premise, the legitimacy of the restriction of the right to property and freedom of commerce produced by the challenged regulation must be acknowledged.
VI.- Competence (Competencia) of the municipalities in urban planning.
It is essential to take into consideration in this case the competence that municipalities have in matters of urban planning, given that the regulation being challenged is contained in the Reglamento de Espacios Públicos, Vialidad y Transporte of the Plan Director Urbano of the central canton of San José. In this regard, it has been stated:
\"In accordance with the provisions of article 169 of the Constitución Política and article 15 of the Ley de la Planificación Urbana, it is the competence of the Municipalities to plan and control urban development, within the limits of their territory. To fulfill this objective, Municipalities may implement regulatory plans (planes reguladores) in which they may determine—among many other aspects (article 16 Ley 4240 and its amendments)—the zoning of land use for housing, commerce, industry, education, recreation, public purposes, and any other pertinent use. To implement a regulatory plan in whole or in part, Municipalities must follow the procedure established in article 17 ibid.\"
(judgment number 1993-02153 of nine hours twenty-one minutes of the twenty-first of May of nineteen ninety-three).\"
In the same vein, it was indicated:
\"In accordance with the provisions of articles 169 and 170 of the Constitución Política, the Ley de Planificación Urbana, number 4240, of the fifteenth of November of nineteen sixty-eight, proceeds from the premise that primary authority in urban planning matters belongs to the municipalities, which has been embodied in articles 15 and 19 of said law. Therefore, it is for the municipalities to assume local urban planning through the enactment of the respective regulations—regulatory plans (planes reguladores)—and by enforcing the rules issued for this purpose by the Instituto Nacional de Vivienda y Urbanismo, as the institution responsible for urban planning at the national level. This point has already been considered by this Chamber, in judgment number 6706-93, of fifteen hours twenty-one minutes of the twenty-first of December of nineteen ninety-three, in which it stated:
\"II).- The Chamber considers that the power attributed to local governments to plan urban development within the limits of their territory does form part of the constitutional concept of \"local interests and services\" referred to in article 169 of the Constitution, a competence that was recognized by the Ley de Planificación Urbana (# 4240 of November 15, 1968, amended by Leyes # 6575 of April 27, 1981 and # 6595 of August 6 of that same year), specifically in articles 15 and 19 challenged herein, which literally state:
\"Article 15.- Pursuant to the precept of article 169 of the Constitución Política, the competence and authority of municipal governments to plan and control urban development, within the limits of their jurisdictional territory, is recognized. Consequently, each of them shall provide what is necessary to implement a regulatory plan (plan regulador), and the related urban development regulations, in the areas where it must govern, without prejudice to extending all or some of its effects to other sectors, where qualified reasons exist to establish a specific controlling regime.\"
\"Article 19.- Each Municipality shall issue and promulgate the procedural rules necessary for due compliance with the regulatory plan and for the protection of the interests of health, safety, comfort, and welfare of the community.\"
III).-
Within what may be called the administrative organization of urban planning (urbanismo) in our country, the Dirección de Urbanismo—attached to the Instituto Nacional de Vivienda y Urbanismo—and the Oficina de Planificación (today the Ministerio de Planificación y Política Económica) are the bodies responsible for preparing the Plan Nacional de Desarrollo Urbano, through which the general policies on the growth and development of urban areas are established. Said Plan—which is specifically prepared by the Dirección and proposed by the Junta Directiva of the Institute—must include technical studies on the population factor with growth projections at the national, regional, and urban level, on land use with plans regarding the extent and forms of use of the portions required for urban development, industrial development, housing and urban renewal, public services, and the general location of transportation projects, among others. Furthermore, the Dirección de Urbanismo functions as an advisory body to the municipalities for the purposes of preparing, applying, and modifying the municipal or local Regulatory Plan (Plan Regulador) and its Regulations before their final adoption. However, the foregoing must be understood as the formal limit of the broad guidelines, technical standards, or general directives according to which local governments must draft their respective regulatory plans and the corresponding urban development regulations, since it is not possible to claim that the Plan Nacional de Desarrollo Urbano be prepared and fully implemented by the Central Government, without the direct intervention of the municipalities in that matter. Such a situation violates not only the most basic principles of logic and convenience, considering that these are the particular interests of each canton of the Republic, but also the constitutional principles of the municipal regime, established by our Carta Fundamental in articles 168 to 175. Urban planning, that is, the drafting and implementation of regulatory plans, is a function inherent to the municipalities to the exclusion of all other public entities, except as stated regarding the general directive powers attributed to the Ministerio de Planificación and the Dirección de Urbanismo. This topic has already been developed by the Chamber in judgment number 5305-93, of ten hours six minutes of the twenty-second of October last year, which, regarding the municipal power to plan local urban development and the imposition of limitations on property by virtue of the execution of a regulatory plan, stated:
\"... the limitation on property imposed by a regulatory plan is constitutionally possible, because the right to property is not unlimited; rather, there is a general framework within which the owner can act, and that must be compatible with the constitutional content of that right. For the foregoing, in the judgment of this Tribunal, the limitation imposed, as long as it conforms to a current regulatory plan, does not violate, as suggested in the appeal, article 45 of the Constitución Política, provided that regulatory plan does not deconstitutionalize the private property affected by that instrument. Conversely, if the limitations exceed the minimum parameters of reasonableness and proportionality, they would be contrary to the Constitución Política.\".-
IV).-
Articles 15 and 19 of the Ley de Planificación Urbana are therefore not unconstitutional, since they merely recognize the competence of municipalities to plan urban development within the limits of their territory through the corresponding regulations, which does not violate the constitutional principles invoked by the plaintiff: that of legal reservation (reserva de ley), since—as stated—local urban planning is a function inherent to the municipalities by virtue of the express text of the Constitution, and since the limits for the exercise of that power are set out in the Ley de Planificación Urbana, the Regulations or Regulatory Plans (Planes Reguladores) are a development of those principles; and those of property and free enterprise, because they do not in any way impose restrictions on those rights, but rather simply grant the power to control the correct use of land and thus guarantee rational and harmonious development of urban centers as well as commercial, industrial, sports, etc. centers (see also, to the same effect, judgments number 2153-93, of nine hours twenty-one minutes of the twenty-first of May and number 5305-93, of ten hours six minutes of the twenty-second of October, both of this year).-\"
Based on the foregoing, and in accordance with the cited jurisprudence, the thesis is reiterated that the competence for urban planning remains the exclusive power of municipal governments, and only in an exceptional and residual manner, in the absence of regulation issued for that purpose by the municipalities, is INVU assigned the task of proposing regulatory plans, but subject to their prior approval by the local entity; therefore, the provisions issued for this purpose by this autonomous institution regarding urban planning must always be considered temporary, and in default of the exercise of municipal competences.\"
(1996-04205 of fourteen hours thirty-three minutes of the twentieth of August of nineteen ninety-six)
Having established the competence, in this case, of the Municipalidad del Cantón Central de San José, to issue the Regulation whose provisions are being challenged, it is necessary to determine whether that regulation has any legal basis, in order to determine compliance with the principle of legal reservation (reserva de ley).
VII.- Legal basis of the challenged regulation. Nonexistence of a violation of the principle of legal reservation (reserva de ley)
None of the challenged provisions establish limitations that prevent the exercise of freedom of commerce and the right to property. The essential content of those rights is not affected; rather, what is done is to regulate their exercise. In addition to this, the regulation is based on the competence conferred by statutory-level provisions. In the first place, it must be borne in mind that the Código Municipal, in articles 15 and 19, recognizes the competence of municipalities to plan and control urban development, as indicated in the preceding recital (considerando). For its part, the Ley de Construcciones number 833 of the second of November of nineteen forty-nine, regarding the requirements for the outdoor advertising license, restrictions, terms, and sanctions, in its articles 29, 30, 31, 32, and 33, indicates:
Article 29.- License. To place or affix advertisements, signs (rótulos), billboards (letreros), or notices, a license must be requested from the Municipality. The license shall be requested by the owner of the structure on which the advertisement will be affixed and with the consent of the owner of the property on which the structure is placed, when applicable. In cases where frameworks or structures are used, the Municipality shall require a responsible expert to be in charge of the construction. A dimensioned sketch showing the inscriptions or figures to be placed shall be required.
Article 30.- Prohibition. Advertisements that cross the public thoroughfare are prohibited, as are those placed using public service poles or trees in parks or gardens.
Article 31.- The Municipality has the power to limit the surface area that an advertisement or a group of advertisements may occupy on a facade and to disallow their placement.
Article 32.- Prohibitions. Affixing or painting advertisements, notices, programs, etc., of any kind and material, is strictly prohibited in the following places:
a) Public buildings, schools, and temples.
b) Buildings cataloged by the Municipality as national monuments.
c) Posts, lighting candelabras, kiosks, fountains, trees, sidewalks, curbs, and in general ornamental elements of squares and promenades, parks, and streets.
d) Private homes and fences.
e) On billboards belonging to others.
f) At a distance of less than thirty (30) centimeters in any direction, from street name plates.
g) In places where they obstruct visibility for traffic.
h) On hills, rocks, or trees, where they may affect the panoramic view or the harmony of a landscape.
Article 33.- Sanctions. The Municipality shall impose fines of ten (10) to one hundred (100) colones for infractions of the rules of this Chapter, and shall order the dismantling and removal, at the owner's expense, of advertisements and related structures that it considers inconvenient or dangerous.
Likewise, article 14 of Law number 6890 of the fourteenth of September of nineteen eighty-three, states:
Article 14.- The Poder Ejecutivo and the following state entities are authorized, for what is indicated in each case: […] To all Municipalities of the country: a) So that in all cases of non-compliance with the Reglamento de Rótulos, violators are sanctioned with the cancellation of the municipal license or patent and with the closure of the commercial establishment.
The transgressor must be previously notified, who shall have a term of five business days to come into compliance with the law.\"
In addition to said regulation, the Ley Orgánica del Ambiente states, regarding environmental pollution and specifically regarding visual pollution:
\"Article 59.- Environmental Pollution.- Pollution is understood to mean any alteration or modification of the environment that may harm human health, threaten natural resources, or affect the environment in general of the Nation. The discharge and emission of pollutants shall mandatorily conform to the technical regulations that are issued. The State shall adopt the measures necessary to prevent or correct environmental pollution.\"
\"Article 71.- Visual Pollution.- Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum limits permissible by established technical standards or those issued in the future, shall be considered visual pollution.
The Poder Ejecutivo shall dictate the appropriate measures and shall promote their execution through the agencies, public entities, and municipalities, to prevent this type of pollution.\"
In addition to the provisions of those rules, the Ley de tránsito por vías públicas y terrestres, in article 205 of the Law, establishes:
\"Article 205.- Advertisements and signs placed for advertising purposes on lands adjacent to public roads and in places that may affect visibility, safety, or the panoramic view, may only be placed outside the right-of-way of the road and in strict compliance with the provisions of the regulation on this matter…\"
It is these rules that the Municipality regulates with respect to outdoor advertising and within the scope of its competence in the administration of local interests and services; whereby, the Chamber confirms that no violation of the principle of legality and legal reservation (reserva de ley) is observed. The exception is article 69 of the Regulation, which establishes a payment for a license, which is not provided for in the Law nor is it approved as such. In this regard, in recital (considerando) IX of this judgment, the respective analysis will be conducted.
VIII.- Reasonableness analysis of the provisions
The plaintiff argues that the challenged regulation injures the principle of reasonableness (razonabilidad) and proportionality of the provisions. To reach that conclusion, he starts from the following premises: a) The imposition of licenses for advertising signs has no legal basis whatsoever. In relation to that topic, it has already been established, not only that the Municipality has the constitutional and legal competence to regulate everything concerning outdoor advertising that affects the administration and governance of local interests and services; but also that there are statutory-level provisions that regulate and restrict this activity. The Reglamento de Espacios Públicos, Vialidad y Transporte merely develops what is provided for in the rules, without contravening, exceeding, or supplanting in any way their essential content.
b) It is a private activity that should not be subject to restrictions unless it endangers public health or common safety.
Outdoor advertising transcends that sphere of freedom in private actions, because the rights of third parties, public order, and eventually, morality are directly affected. This is because it concerns the right of every person to a healthy and ecologically balanced environment and urban planning, which must occur as a process aimed at procuring the health, safety, comfort, and welfare of the community in general. Consequently, pursuant to the provisions of article 28 of the Constitution, the limitation and regulation of the exercise of that activity is legitimate.
c) It injures the right of property, as it restricts the free use of a building.
As analyzed, the right to private property is not absolute or unrestricted. Its social function makes it necessary and reasonable to impose limitations on its exercise for the sake of the common good. The challenged provisions do not absolutely prohibit the placement of signs on private property; what they do is regulate and limit the activity, based on technical criteria that guarantee respect for legal interests, such as safety, the right to a healthy environment, physical integrity, among others.
d) It injures freedom of commerce.
The challenged articles also do not infringe upon freedom of commerce because they do not denature it; what they do is restrict and limit a particular aspect of that freedom, namely, the right to outdoor advertising, to the extent that the rights of third parties, public order, and eventually, morality are affected.
e) The test of technical reasonableness imposed by the Law of the Constitution is not satisfied.
In relation to the principle of the reasonableness (razonabilidad) of provisions, this Chamber has stated:
\"Constitutional jurisprudence has been clear and consistent in considering the principle of reasonableness as a parameter of constitutionality. It is appropriate to recall, in the first place, that the 'reasonableness of the law' was born as part of the 'substantive due process of law' ( substantive due process of law), a guarantee created by the jurisprudence of the Supreme Court of the United States of America, in the wake of Amendment XIV to the Federal Constitution. In its initial conception, 'due process' was directed at the procedural review of the legislative act and its effect on substantive rights. At the end of the 19th century, however, it surpassed that procedural conception that had given rise to it and rose to an axiological standard that limits the actions of the legislative organ. From that point on, we can speak of due process as a generic guarantee of freedom, that is, as a substantive guarantee. The surpassing of 'due process' as a procedural guarantee is due, basically, to the fact that a law that has complied with the established procedure and is valid and effective can also injure the Law of the Constitution. To conduct the reasonableness review, U.S. doctrine invites us to examine, in the first place, the so-called 'technical reasonableness' within which the specific provision (law, regulation, etc.) is examined. Once it is established that the chosen provision is adequate to regulate a certain matter, it will be necessary to examine whether there is proportionality between the chosen means and the sought end. Having overcome the criterion of 'technical reasonableness,' the 'juridical reasonableness' must be analyzed. For this, this doctrine proposes examining: a) weighting reasonableness, which is a type of juridical assessment used when, given the existence of a certain antecedent (e.g., income), a certain benefit is required (e.g., tax), in which case it must be determined whether the latter is equivalent or proportional; b) equality reasonableness, is the type of juridical assessment based on the premise that like antecedents must have like consequences, without arbitrary exceptions; c) reasonableness in the end : at this point, it is assessed whether the objective to be achieved does not offend the ends provided for in the constitution. Within this same analysis, it is not enough to state that a means is reasonably adequate to an end; it is also necessary to verify the nature and extent of the limitation that a personal right must bear because of that means. Thus, if the same end can be reached by seeking another means that produces a less burdensome limitation on personal rights, the chosen means is not reasonable. It was in judgment number 01739-92, of eleven hours forty-five minutes of the first of July of nineteen ninety-two, where the attempt was first made to define this principle, as follows:
\"Reasonableness as a parameter of constitutional interpretation. But an even further step was taken in the Anglo–North American jurisprudential tradition, by extending the concept of due process to what in that tradition is known as substantive due process—substantive due process of law—, which, in reality, although it does not refer to any procedural matter, constituted an ingenious mechanism devised by the Supreme Court of the United States to affirm its jurisdiction over the federated States, in the wake of Amendment XIV to the Federal Constitution, but which among us, especially in the absence of that need, would simply be equivalent to the principle of reasonableness of laws and other public rules or acts, or even private ones, as a requirement of their own constitutional validity, in the sense that they must conform, not only to the specific rules or precepts of the Constitution, but also to the sense of justice contained therein, which implies, in turn, compliance with fundamental requirements of equity, proportionality, and reasonableness, understood as suitability to achieve the proposed ends, the assumed principles, and the presupposed values in the Law of the Constitution.
Hence, laws and, in general, regulations and acts of authority require for their validity, not only having been promulgated by competent bodies and through due procedures, but also passing substantive review for their concordance with the supreme norms, principles, and values of the Constitution (formal and material), such as those of order, peace, security, justice, freedom, etc., which are configured as patterns of reasonableness. That is, a public or private rule or act is only valid when, in addition to its formal conformity with the Constitution, it is reasonably founded and justified in accordance with constitutional ideology. In this way, it is sought not only that the law not be irrational, arbitrary, or capricious, but also that the means selected have a real and substantial relationship with their object.\n\nA distinction is thus drawn between technical reasonableness, which is, as stated, the proportionality between means and ends; legal reasonableness, or conformity with the Constitution in general, and especially with the rights and freedoms recognized or presupposed by it; and finally, reasonableness of the effects on personal rights, in the sense of not imposing on those rights limitations or burdens other than those reasonably derived from the nature and regime of the rights themselves, nor greater than those indispensable for them to function reasonably in the life of society.\"
German doctrine made an important contribution to the subject of \"reasonableness\" by managing to identify, in a very clear manner, its components: legitimacy, suitability, necessity, and proportionality in the strict sense, ideas it develops by affirming that they have already been recognized by our constitutional jurisprudence:
\"... Legitimacy refers to the fact that the objective intended with the challenged act or provision must not be, at least, legally prohibited; suitability indicates that the questioned state measure must be apt to effectively achieve the intended objective; necessity means that among several measures equally apt to achieve such an objective, the competent authority must choose the one that least affects the legal sphere of the person; and proportionality in the strict sense provides that apart from the requirement that the norm be apt and necessary, what it orders must not be out of proportion with respect to the intended objective, that is, it must not be \"exigible\" from the individual ... (Judgment of this Chamber number 03933-98, at nine hours fifty-nine minutes on the twelfth of June, nineteen hundred and ninety-eight). In judgment number 08858-98, at sixteen hours thirty-three minutes on the fifteenth of December, nineteen hundred and ninety-eight, it was the subject of recent development, a ruling in which the guidelines for its analysis were indicated, both for administrative acts and for norms of a general nature:
Thus, an act limiting rights is reasonable when it meets a triple condition: it is necessary, suitable, and proportional. The necessity of a measure makes direct reference to the existence of a factual basis that makes it essential to protect some good or set of goods of the community—or of a determined group—through the adoption of a differentiating measure. That is, if said action is not carried out, important public interests will be harmed. If the limitation is not necessary, it cannot be considered reasonable, and therefore constitutionally valid. Suitability, for its part, involves a judgment regarding whether the type of restriction to be adopted fulfills or not the purpose of satisfying the detected need. The unsuitability of the measure would indicate to us that other mechanisms may exist that better solve the existing need, some of which could fulfill the proposed purpose without restricting the enjoyment of the right in question. For its part, proportionality refers us to a judgment of necessary comparison between the purpose pursued by the act and the type of restriction imposed or intended to be imposed, such that the limitation is not of a markedly greater magnitude than the benefit sought to be obtained for the benefit of the community. Of the last two elements, it could be said that the first is based on a qualitative judgment, while the second stems from a quantitative comparison of the two objects analyzed.\"
Finally, recently, in judgment number 05236-99, at fourteen hours on the seventh of July, nineteen hundred and ninety-nine, when mentioning the principle of constitutional reasonableness as a constitutional parameter, it is done in a practical manner, that is, with a view to being able to carry out the constitutional review of the norms and/or acts challenged before this Constitutional Chamber;
\"In the sense of the previously expressed criterion, this Chamber has been applying the institution in its jurisprudence. Let us now see the analysis of the specific case. On the proof of \"reasonableness\": To undertake a review of the reasonableness of a norm, the Constitutional Chamber requires that the party provide evidence or at least elements of judgment on which to base their argument, and the same procedural burden corresponds to whoever refutes the arguments of the action, and failure to comply with these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to conduct a review of \"reasonableness\" without the existence of a coherent line of argument that is evidentially supported. This, of course, when it does not involve cases whose «unreasonableness» is evident and manifest.\" (Judgment 2000-02858 at fifteen hours fifty-four minutes on the twenty-ninth of March, two thousand)
The petitioner asserts that the challenged norms are unreasonable because less harmful measures for the exercise of freedoms could have been used. However, he does not specify which of the limitations or requirements he refers to, nor does he indicate what the dissatisfaction with technical reasonableness consists of. He also does not provide evidence or elements of judgment that would allow for a review of the reasonableness of the questioned norms. In general terms, without entering into a particularized analysis of each of the challenged norms (given the petitioner's omission), this Chamber considers that the challenged regulatory framework is adequate and suitable to regulate the matter and, furthermore, necessary, as it seeks the regulation and control of outdoor advertising, not only for urban planning reasons but also out of due respect for the right to a healthy and ecologically balanced environment.
IX.- Tax nature of the license fee. Violation of the principle of legal reserve. Regarding the license fee provided for in the challenged article 69, the Chamber observes that, as the Attorney General's Office rightly indicates in its report, it is a tax that is neither provided for nor authorized by Law. As to the nature of the patent tax, it has been stated:
\"As the action questions the application of the so-called patent tax—with which any lucrative activity carried out in the Canton of Buenos Aires is taxed (articles 96 and 98 Código Municipal)—specifically, the one charged to pineapple production, it is essential to point out some important notes on this matter. Our legislation distinguishes between the license itself, which is the administrative act that enables the individual to carry out the respective activity, and the payment of the tax, properly speaking, which is denominated by the name of patent. The main theoretical justification for imposing this type of tax is the one already traditional in the field of Municipal Law, which defines it as the imperative need to cover the cost of the public services that the individual receives from the municipality; that is, that commercial businesses or lucrative activities, according to the nomenclature used by our Código Municipal, are highly benefited by the security, order, cleanliness, and municipal activity in general, for which reason they must contribute to the Local Government. In doctrine, a tax on a lucrative activity is called a patent or license fee, those that tax businesses based on external characteristics that are more or less easy to determine, without there being a single system in this regard. On the contrary, the systems for imposing this tax are of the most varied types, but they do have certain characteristics that are common to them. This is why the patent tax laws differ from one municipality to another, and the tax bases can be equally varied, such as, for example, on gross profits, gross sales, based on categories or classes, or else, a minimum patent and a maximum one.
III- From the standpoint of Tax Law doctrine, its most important legal principles are: a) the principle of legality of taxation, also known as the reserve of law; or what is the same, the exclusive regulation of tax activity by formal law; b) the principle of equality before the tax and public charges, which alludes to the need to ensure the same treatment for those who find themselves in analogous situations (a concept related more to materiality than to formality); this principle allows the formation of distinct categories, to the extent that these are reasonable, which in turn requires it to be with total exclusion of arbitrary discriminations; c) the principle of generality, which implies that persons or goods singularly determined should not be affected by the tax, since in such a case taxes acquire a persecutory character or one of odious or illegitimate discrimination. Put another way, the tax must be conceived in such a manner that any person whose situation coincides with that designated as the chargeable event will be a subject of the tax. For the specific case, there is no doubt that the tax was authorized by a law, and what is appropriate is to analyze whether the differentiation alleged by the petitioner, and which originates from the referenced patent law, is reasonable or if, on the contrary, it creates arbitrary discrimination against it.\"
(Judgment 1992-02197 at fourteen hours thirty minutes on the eleventh of August, nineteen hundred and ninety-two)
The principle of legal reserve in tax matters is of a constitutional nature and is entirely applicable to the payment of municipal licenses or patents. While it is true that an original municipal taxing power is recognized, by virtue of the autonomy that the Constitution itself confers on these Entities, it is necessary to have the authorization of the Asamblea Legislativa, as indicated by article 121, subsection 13) of the Carta Fundamental:
\"Repeatedly, this Tribunal has indicated that the autonomy of the municipalities derives from the provisions of article 170 of the Constitución Política, a principle from which emanates the municipal taxing or tax power to procure the necessary income and to cover the cost of the public services that the individual receives from the municipality, provided that they comply with the necessary legal procedures, and are manifested in taxes that are subject to the constitutional principles proper to this matter; in such a way that the Asamblea Legislativa only issues in this matter an 'act of typically tutelary authorization', when it exercises the power conferred by subsection 13) of article 121 of the Constitución Política, so that the initiative for the creation, modification, or extinction of municipal taxes corresponds to these entities, as does the power to exempt from municipal taxes (in this sense, among others, see judgments number 1631-91, at fifteen hours fifteen minutes on the twenty-first of August, nineteen hundred and ninety-one; 0140-94, at fifteen hours fifty-one minutes on the eleventh of January, nineteen hundred and ninety-four; 2494-94, at fourteen hours fifty-four minutes on the twelfth of July, nineteen hundred and ninety-four; 4496-94; 4497-94, at fifteen hours thirty-nine minutes on the twenty-third of August, nineteen hundred and ninety-four; 4510-94, at fourteen hours fifty-one minutes on the twenty-fourth of August, nineteen hundred and ninety-four; 4512-94, at fourteen hours fifty-seven minutes on the twenty-fourth of August, nineteen hundred and ninety-four; 6362-94, at fifteen hours thirty-nine minutes on the first of November, nineteen hundred and ninety-four; 1269-95, at fifteen hours forty-eight minutes on the seventh of March, nineteen hundred and ninety-five; 2311-95, at sixteen hours twelve minutes on the ninth of May, nineteen hundred and ninety-five; 2631-95, at sixteen hours three minutes on the twenty-third of May, nineteen hundred and ninety-five; 1974-96, at nine hours on the thirtieth of April, nineteen hundred and ninety-six; and 4982-96, at ten hours twelve minutes on the twentieth of September, nineteen hundred and ninety-six).
\"'The Municipalities do not make a mere proposal to the Asamblea Legislativa, but rather must be able to submit true tax assessments to it. This means that the municipal taxing act is terminal and definitive, creator of the tax in a tax procedure opened for this purpose by each municipality, and not initial in a presumed legislative procedure with the same function, as if it were a simple proposal subject to the constitutive and free will of the legislator. Consequently, the municipal tax assessment frames the matter of the legislative pronouncement, whose function is tutelary and not constitutive of the municipal tax, and whose consequent result can only be the authorization or non-authorization of what is proposed, not the substitution of the municipal will.'
(judgment number 1631-91, cited above).
This competence is established in article 68 of the current Código Municipal, which provides:
\"The municipality shall agree upon its respective budgets, propose its taxes to the Asamblea Legislativa, and set the rates and prices for municipal services. Only the municipality, prior to a law authorizing it, may grant exemptions from the indicated taxes.\"
Likewise, from the autonomy proper to these corporations derives the possibility of administering their resources, insofar as each local government is free to define the limits of its own taxing power, whence the municipal tax imposition systems for their specific collection and application are of the most varied types.\"
(Judgment 1999-05445 at fourteen hours thirty minutes on the fourteenth of July, nineteen hundred and ninety-nine)
In application of the foregoing, article 69 must be declared unconstitutional insofar as it provides for a license fee, as it does not have the proper authorization of the Asamblea Legislativa, in breach of the principle of reserve of law in tax matters.\"
Following the same jurisprudential line referred to in that judgment, the Chamber considers that article 54, third paragraph, of the Plan Regulador of the Canton of Moravia is unconstitutional due to violation of the principle of reserve of law in tax matters, provided for in numeral 121, subsection 13) of the Constitución Política. The foregoing, insofar as it establishes a payment for a license for outdoor advertising, without the same having been approved by the Asamblea Legislativa. Regarding the other challenged articles, the action is declared without merit.
Therefore:
The action is partially granted. Consequently, article 54, third paragraph, of the Plan Regulador of the Canton of Moravia published in La Gaceta number 162 of August 24, two thousand, is annulled. This unconstitutionality is declarative and, in accordance with the power provided for in article 91, second paragraph, of the Ley de Jurisdicción Constitucional, in order to avoid a severe dislocation of legal certainty, by virtue of the subject matter, the effects of the judgment are dimensioned, in the sense that the declaration applies only for the future and not retroactively. In all other respects, the action is declared without merit.- Let this pronouncement be summarized in the Diario Oficial La Gaceta and published in its entirety in the Boletín Judicial. Notify.
Luis Fernando Solano C.
Presidente
Luis Paulino Mora M. Carlos M. Arguedas R.
Ana Virginia Calzada M. José Luis Molina Q.
José Miguel Alfaro R. Teresita Rodríguez A.
.