\\\"..... Continuing with the analysis of the aforementioned legal article, in the event that no occupant exists, the postulate of merit is applicable. In accordance with the foregoing, it is of cardinal importance to determine who should be considered the “occupant” of the land located in the restricted zone. Should this concept be equated with that of a possessor? This Chamber, after analyzing the rule under study, jointly and harmoniously with the rest of the articles of the aforementioned Law and the provisions of its Reglamento, concludes that the answer must be negative. According to the first article of the Law under study, the zona marítima terrestre constitutes part of the national patrimony, belongs to the State, and is inalienable and imprescriptible. Only by means of concessions, it is reiterated, may private parties make use of the restricted zone (Article 39). In this sense, pursuant to numeral 12, unauthorized tenure of lands located there is prohibited: “In the zona marítimo terrestre it is prohibited, without due legal authorization, to exploit existing flora and fauna, to demarcate with fences, lanes, or in any other form, to erect buildings or installations, to cut down trees, extract products, or carry out any other type of development, activity, or occupation.” Ordinal 13 sanctions illegitimate possession or tenure in the following manner: “The authorities of the corresponding jurisdiction and the respective municipalidades, as soon as they are notified of the infractions referred to in the two preceding articles, shall proceed, after gathering information for that purpose, if deemed necessary, to the eviction of the offenders and the destruction or demolition of the constructions, remodelings, or installations carried out by them, without any liability whatsoever for the authority or the municipalidad. The cost of the demolition or destruction shall be charged to the owner of the construction or installation. All of the foregoing without prejudice to the criminal sanctions that may proceed.” However, under the shelter of its ordinal 6, private property, legitimately acquired, in the zona marítimo terrestre is recognized: “The provisions of this law shall not apply to the areas of cities situated on the coastlines, nor to properties registered, in accordance with the law, in the name of private individuals, nor to those whose legitimacy is recognized by the laws.”; nevertheless, as provided by canon 8, those lands are declared of public utility for expropriation purposes: “The zona marítimo terrestre is declared of public utility so that the lots, parcels, or improvements located therein, which have been sold, acquired, or possessed in property by private individuals, may be rescued for the national patrimony by means of expropriation.” Likewise, the Law under discussion, in its Transitorios I and II, maintains the validity and effectiveness of lease contracts entered into under the protection of previous legislation, provided that certain requirements are met: “Transitorio I.- The concessions or lease contracts granted based on previous laws, except for the exceptions established herein, shall pass to the control of the respective municipalidades and shall continue under the same terms and conditions in which they were agreed, but upon their expiration and if their extension is agreed upon, they shall be modified in accordance with the rules of this law. The foregoing referring to the zona marítimo terrestre. Transitorio II.- The municipalidades and the Instituto de Tierras y Colonización must send to the Instituto Costarricense de Turismo, within the first six months of the effectiveness of this law, copies of the contracts or concessions they have granted in the zona marítimo terrestre, without prejudice to the interested parties also presenting, within that same term, their contracts to this Instituto, all for the purposes of their registration therein. Once that term has expired without said contracts having been presented, they shall lack validity and shall be deemed extinguished./ If contracts have not been issued, any existing supporting documents must be presented./ In all cases, certification of being up to date in the payment of the respective cánones must be attached. The absence of such certification shall be proof that the cánones have not been satisfied./ For the purposes of this transitorio, the originals of the documents or photostatic copies thereof, signed by the interested party or by the representative of the corresponding entity, may be presented.” The figure of the occupant, indicated in Article 44 under discussion, therefore, does not allude to the owners, since they do not need a concession to usufruct their lands; nor to the lessees of properties located in the zona marítimo terrestre, whose contract was granted in accordance with the previous regulations, since, as has just been analyzed, there are specific provisions that regulate them, on the understanding that these are extensions of the agreements; even less so does it refer to persons introduced into said zone illicitly, as this is expressly prohibited by Article 12, as noted. The valid interpretation is to consider as “occupant” all those persons who, settled in the restricted zone, did not have a concession at the time Law 6043 was enacted. It is, consequently, a special or exceptional regime, which is not the only one in that regulation. In this regard, as noted, in transcribed Article 6, the areas of cities situated on the coastlines were excluded; in addition, in ordinal 70 the figure of the dweller (poblador) was created, who is given the possibility of remaining on the properties occupied by them, until zoning planning occurs, at which time they may be relocated and compensated for their improvements. Said article provides: “The dwellers (pobladores) of the zona marítimo terrestre, Costa Rican by birth, with more than ten years of residence therein, according to information from the authority of the local Guardia de Asistencia Rural or certification from the Registro Electoral regarding the applicant's domicile, may continue in possession of their respective lots provided it is their only property. However, they must submit to the planning of the zone, for which purpose they may be relocated and their improvements indemnified in accordance with this law. In all cases, the public zone must be respected.” The indicated conclusion, that with the expression “occupant” the Law refers to a special regime, is confirmed by what is provided in numeral 48: “Concessions shall be granted for a term of no less than five nor more than twenty years and shall indicate the canon to be paid and its form of payment. This canon substitutes the territorial tax./ The reglamento of this law shall establish the manner of processing the application, the modalities of the concession, the canon to be paid in each zone according to its circumstances and, in a special manner, with the different situation of the dwellers (pobladores) or inhabitants and those who are not , as well as any other provisions deemed necessary to regulate the relations between the municipalidades and the concessionaires.”(The underlining is not from the original); by indicating said provision: “... and those who are not ...” it alludes to the occupants. More explicit is numeral 75 of the Reglamento, in developing the preceding legal provision: “The dwellers (pobladores) of the zona marítimo terrestre, Costa Rican by birth, with more than ten years of continuous residence therein, according to information from the authority of the local Guardia de Asistencia Rural or certification from the Registro Electoral regarding the applicant's domicile, may continue in possession of their respective lots provided it is their only property, and may be relocated according to the planning of the zone, upon prior indemnification of the improvements. In all cases, the public zone must be respected. / When the period of residence is less than ten years, the dwellers (pobladores) may apply for a concession on the property, provided that no part of the public zone is included. If there are improvements in the public zone, the provisions of subsection e), Article 73 of the reglamento shall apply, and the provisions of Article 74 of the reglamento shall apply if the improvements are located in the restricted zone. / Those who, not being dwellers (pobladores), have constructed or built in the restricted zone on illegally possessed properties, shall have no right to payment for improvements. / However, they may apply for a concession on the property and, if granted, they shall not be charged for the use and enjoyment of those improvements. Applications for concessions made by the occupants of the zona marítimo terrestre shall have priority over others. ” When this provision, in its third paragraph, refers to “illegally possessed properties”, as has been noted, it must be understood that the person is in the zona marítimo terrestre without a lease contract or concession that legitimizes them, that is, as an occupant. It is important to note that this rule reiterates what is prescribed in ordinal 44 of the Law, in the sense that “... Applications for concessions made by the occupants of the zona marítimo terrestre shall have priority over others.”, which supports the thesis sustained. Likewise, Transitorio VII of the Law is diaphanous in establishing the provisional, or precarious, character of the occupation, which can be equated to mere tolerance under common law: “Transitorio VII.- The municipalidades with jurisdiction in the zona marítimo terrestre shall collect the canon established by this law from the occupants thereof./ The collection shall be made according to the use and the current appraisal by the Dirección General de la Tributación Directa. This authorization shall be provisional in nature, until the development plan for the respective zone comes into effect, and it does not produce any right for the occupants regarding a concession. ”(The underlining is not from the original). In light of what is set forth in this transitory rule, it is Nombre70705 that the State permits the permanence of these persons –occupants– in the coastal zone until the granting of concessions is possible, that is, when the regulatory plan for the zone is issued (Articles 70, Transitorio VII of the Ley sobre la Zona Marítimo Terrestre; and 57 of its Reglamento). Their condition is so precarious that, in accordance with Article 75 of the Reglamento, they have no right to payment for improvements, although they do have the right of priority for their concession applications (solicitudes de concesión), provided that the projected use of the land is compatible with that foreseen in the planning of the sector. On the other hand, since the zona marítimo terrestre constitutes part of the national patrimony belonging to the State, inalienable and imprescriptible, which is collected by numeral 7 of the law, in indicating that the lands located in the zona marítimo terrestre “... cannot be the object of possessory informations and private individuals may not appropriate them nor legalize them in their name, by this or any other means.”; it implies the legal impossibility of deriving possessory rights over said zone. Consequently, the terminology used by Article 44 of the Ley sobre la Zona Marítimo Terrestre is adequate, that is, it refers to the mere occupant and not to the possessor. Furthermore, said condition of occupant cannot be transmitted to third parties, as it possesses special conditions that only those persons –the occupants– have; consequently, any legal act tending to transfer it becomes absolutely null. To accept the contrary would imply breaching what is provided by the previously indicated articles of the Ley sobre la Zona Marítimo Terrestre and its reglamento.
XXII.- In the case record, in accordance with what is provided in the proven facts preceded by numbers 9, 10, and 12, Mr. Nombre34289 and Mr. Nombre70713 filed their concession application (solicitud de concesión) for the land in dispute before the Municipalidad de Nicoya on July 12; for its part, the plaintiff corporation did so on September 28, and Mr. Nombre70713 on October 23, all dates in 1989. On the other hand, although it was not considered accredited, the second-instance judges, in Considerando X of the appealed judgment (folio 1029), indicate that both parties propose the same type of use for the land in dispute, which consists of agricultural and livestock activity; furthermore, that the zone where the land in dispute is located is non-touristic (which was accepted by the plaintiff corporation at folios 17 verso, 176, and 185, and by the defendants in their answer to the complaint at folio 232). In light of what is set forth in the preceding considerando, as two concession applications (solicitudes de concesión) were filed for the same land located in the zona marítimo terrestre and with the same use or destination, framed within the priorities established by the Reglamento to the Ley sobre la Zona Marítimo Terrestre (Article 57, subsection b) paragraph 1), it must be analyzed whether any of the applicants can be considered as an occupant. In this sense, it is Nombre70705 that the plaintiff corporation does not meet the necessary conditions, since, as is inferred from what is stated in its complaint –facts identified as second, third, fourth, fifth, and ninth– what it alleges is having acquired from the defendants Mr. Nombre34289 and Mr. Nombre70713 the right of possession over the land in dispute on February 21, 1989, a legal transaction that, as noted in the preceding section, is absolutely null; furthermore, according to what is accredited in the demonstrated fact preceded by number 7, its entry onto the land in dispute occurred, approximately, in the month of March 1989. For their part, said defendants do not meet this characteristic either; this is because, it is reiterated, based on the indicated proven facts, and as analyzed in preceding considerandos, at the time of filing their concession application (solicitud de concesión) they were no longer occupying the land; ergo, they do not meet the condition of continuous “possession”, as provided in Article 44 of the Ley sobre la Zona Marítimo Terrestre.
As the right of occupation that Mr. Nombre70705 and Mr. Nombre70706 held, at the time, was not transferable to third parties, their succession cannot come to claim a subjective right that they do not have, and even less so that such a situation subjects the Municipalidad de Carrillo to the issuance of acts contrary to the legal system, so the denial made by the territorial entity, regarding the transfer of a concession right over the zona marítimo terrestre, as well as the license (patente) for national and foreign liquors number Placa11511, is in accordance with the legal system, there is no defect whatsoever in its motive, content, and purpose. The claim of the plaintiff succession not being receivable for this Tribunal, to accept the contrary implies ordering actions contrary to the Law and the regulations governing the matter submitted to the scrutiny of this judicial authority.
IX.- CONCLUSIONS: With legal certainty, it is established that what Mr. Nombre70705 and Mr. Nombre70706 held in life was the condition of occupants within the zona marítimo terrestre, a right that is not susceptible to transmission to third parties, consequently, any legal act tending to transfer it becomes absolutely null, that being a right in precario, it does not confer subjective rights, ergo the plaintiff succession lacks right regarding its claims, to accept the contrary would imply breaching the block of legality that covers administrative conduct, so the appeal formulated in this sense must be upheld.
X.- REGARDING COSTS: This Tribunal considers that we are in the presence of the assumptions of Article 98 of the Ley Reguladora de la Jurisdicción Contenciosa Administrativa, therefore, it is decided without special condemnation as to costs.
POR TANTO
Regarding what is the object of the appeal, the appealed resolution is REVOKED, only insofar as it rejected the defense of lack of standing, declared the complaint admissible, and condemned the Municipalidad de Carrillo to the payment of both costs, in order to, in its place, admit the lack of standing and decree the IMPROCEDENCIA of the action in all its extremes. It is resolved without special condemnation as to costs.\n\nIn all other respects, it is affirmed. NOTIFY.-
Cristina Víquez Cerdas
Nombre66641 Sady Jiménez Quesada