IXo.- CONCERNING THE CLAIM FOR RECOGNITION OF LOST PROFIT (LUCRO CESANTE) FROM THE SALE OF LOTS A-1210946-2007 AND A-1208715-2007, AS A RESULT OF THE TIME THE Nombre25705 TOOK TO GRANT THE WATER AVAILABILITY SEALS. In accordance with the adjustment to claim number 11 made during the preliminary hearing of October fifteenth, two thousand nine (see minutes of the preliminary hearing at verso of folio 338 of the judicial file and audiovisual record of that proceeding), the plaintiff seeks recognition as lost profit (lucro cesante), derived from the alleged unjustified delay by the Nombre25705 in granting the availability seals, of the sum of 1,833,500.00 colones, which constitutes the total amount it ceased to receive starting from February twenty-sixth, two thousand eight, the date on which, according to its statement, the Director of Rural Aqueducts of A y A issued instructions to the Nombre25705 of Carrizal de Alajuela to grant it the water availability seals; until May seventeenth and September fifth, two thousand eight, dates on which it managed to sell lots A-1210946-2007 and A-1208715-2007. In that sense, this Court considers that: 1) It should be noted that, contrary to what the plaintiff asserts, in the sense that the Nombre25705 has eight business days as a maximum term to resolve the request for granting the water availability seals that it processed via note of January twenty-third, two thousand eight (see letter dated January 30, two thousand eight at folios 206 and 207 of the judicial file), this collegiate body considers that, based on the provisions of Articles 37 and 38 of the ASADAS Regulation (Reglamento de las ASADAS), which refers to the General Law of Public Administration to regulate the procedures and resolution deadlines for petitions, requests, licenses, authorizations, approvals, claims, and appeals filed before the ASADAS; the term to be applied in those cases where the granting of a water availability seal is requested is that provided in Article 331, subsection 1) of the General Law of Public Administration, that is, one month from the date the body or entity receives the request with all the legal requirements; 2) For purposes of calculating the term indicated above, it must be taken into consideration that, in accordance with the provisions of Article 21, subsection 19 of the ASADAS Regulation, the granting of the water availability seal is subject to the verification by the Nombre25705 of three requirements: the existence of technical and infrastructure viability, and that it does not harm the quality of the service provided; 3) In view of the foregoing and considering official communication number DAR-2007-0440 of February twenty-sixth, two thousand eight, it can be inferred that in response to the inquiry raised by the Nombre25705 of Carrizal de Alajuela, the Director of Rural Aqueducts of A y A indicated that based on the conditions set forth in subsection 19 of Article 21 of the ASADAS Regulation (the existence of technical and infrastructure viability, and that it does not harm the quality of the service provided), “...it is possible to grant the water resource availability letter only for the two lots proposed (A-1210946-2007) and (A-1208715-2007)...” (see folio 210 of the judicial file); 4) In that sense, and contrary to what the plaintiff asserts, the Director of Rural Aqueducts of A y A did not order the Nombre25705 of Carrizal de Alajuela to grant the water availability seals requested by the plaintiff, since that decision depended on the technical studies that the defendant association had to carry out, in accordance with the provisions of Article 21, subsection 19 of the ASADAS Regulation. Consequently, the date of that official communication cannot be taken as a parameter to establish a possible unjustified delay by the Nombre25705 of Carrizal in granting the water availability seals, because it precisely had to carry out the technical studies to determine the viability of the request made; 5) For all the foregoing, this Court considers that the term to determine whether or not to grant the water availability seal is to be calculated from when the entity operating the service has all the technical requirements, and that said decision cannot be adopted to the detriment of the quality of the service provided. Of course, as long as an unjustified delay in the technical verification procedure of the required requirements is not attributable to the entity administering the drinking water service; 6) By reason of the foregoing, and in application of the principles of reasonableness, proportionality, and proper functioning of public services, this Court considers that –in principle– it is justified that the Nombre25705 of Carrizal de Alajuela, in official communication number ASADA-022-03-08 of March thirty-first, two thousand eight (folio 217 of the judicial file), requested the plaintiff “...to grant us a longer period of time (sic) to study the situation comprehensively regarding the water resource because we have conduction problems as the pipe in the place has a small diameter. We, as administrators, must ensure that the quantity and quality of the service does not deteriorate (sic) to the detriment of the other users (...) in order to expedite the availability of the water seal, we commit to contracting and managing the corresponding studies starting from March 28, 2008...”. This is because this Court has held it to be an unproven fact (see point f of Considerando II of this judgment) that the Nombre25705 of Carrizal de Alajuela incurred an unjustified delay in the technical verification of the requirements provided in subsection 19 of Article 21 of the ASADAS Regulation, during the processing of the request filed by the plaintiff for the granting of the water availability seals; 7) In that sense, even though the defendant granted the water availability seals three days after the issuance of official communication ASADA-022-03-08 of March thirty-first, two thousand eight, that is, on April third of the same year (see folios 219 and 220 of the judicial file), there is no evidence in the file that disproves that the granting of the water availability seals granted to lots A-1210946-2007 and A-1208715-2007 lacks technical support, an aspect that not only is not the subject of this proceeding, but also, it must be taken into consideration that this Court has held it to be demonstrated that the Nombre25705 of Carrizal de Alajuela proceeded to connect the drinking water service to the indicated lots –even though that was not what was requested– and that the plaintiff was able to sell said immovable properties after that date, given that they already had the drinking water service connection enabled (see point 6 of Considerando VII of this judgment); 8) Finally, this Court again reiterates that it is contrary to law that the plaintiff attempted to sell the lots with cadastral map numbers A-1210946-2007 and A-1208715-2007, in contravention of the provisions of Articles 32 to 35 of the Urban Planning Law; Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations (Reglamento para el Control Nacional de Fraccionamientos y Urbanizaciones); Article 21, subsection 19 of the ASADAS Regulation, that is, prior to proceeding with the municipal approval (visado municipal) of the cadastral maps indicating the area and location of the lands subjected to subdivision (fraccionamiento) and prior to granting the water availability seal, as analyzed in Considerando VIII of this judgment; 9) For all the foregoing, this Court considers that, in the absence of an unjustified delay by the Nombre25705 of Carrizal de Alajuela in processing the procedure initiated to determine whether, according to the technical verification, it was appropriate or not to grant the water availability seal, the indemnity claim raised by the plaintiff is inadmissible.
Xo.- CONCERNING THE SUBSTANTIVE DEFENSES (EXCEPCIONES DE FONDO). This Court reaches the conclusion that the plaintiff has sufficient active legal standing (legitimación activa) to participate in this proceeding in accordance with Article 10, subsection a) of the Code of Contentious Administrative Procedure (Código Procesal Contencioso Administrativo), since it was in her capacity as owner –as of April fourth, two thousand eight– of the lots with cadastral map numbers A-1210946-2007 and A-1208715-2007 that she had to improperly pay the community contribution (aporte comunal), as one of the requirements for being granted the water availability seal. Furthermore, the action is correctly directed against the Instituto Costarricense de Acueductos y Alcantarillados (A y A), and the Asociación Administradora del Acueducto y Alcantarillado Sanitario de Carrizal de Alajuela (ASADA), as provided in Article 12, subsections 1) and 4), in relation to subsection e) of Article 2, all of the aforementioned Code, given that the Nombre25705 of Carrizal de Alajuela improperly charged the community contribution provided in Article 25 of the ASADAS Regulation, despite the fact that the plaintiff did not request a new drinking water connection service, but rather the granting of a water availability seal, and because the General Management (Gerencia General) of A y A nullified a firm and declaratory-of-rights agreement issued by the Board of Directors, in contravention of the provisions of the legal system. On the other hand, the interest remains current, as long as the challenged conduct continues to have effects in the plaintiff's legal sphere and requires a jurisdictional resolution to resolve it. Finally, this collegiate body finds that the defense of lack of right (excepción de falta de derecho) must be upheld, solely regarding that: a) For all the reasons stated in Considerando VI of this judgment, the indemnity claim related to the expenses to carry out the works required by the Nombre25705 of Carrizal de Alajuela in order to grant the water availability seal for lots A-1210946-2007 and Placa27092 is inadmissible, since the plaintiff did not demonstrate the existence of material damages and the causal link, in accordance with the provisions of Articles 190 and 196 of the General Law of Public Administration; b) That for all the reasons stated in Considerando VII of this judgment, the claim for reimbursement of the amounts that the plaintiff company paid for breach of the promise of purchase-sale regarding the immovable property registered under real folio number 2-432932-000 (cadastral map number a-1210946-20007) is inadmissible, since it is contrary to the provisions of Articles 32 to 36 of the Urban Planning Law; 21, subsection 19 of the ASADAS Regulation and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations (Reglamento para el Control Nacional de Fraccionamientos y Urbanizaciones), and to the principles of contractual good faith and that no one may benefit from their own wrongdoing (nadie puede sacar provecho de su propio dolo); c) That for all the reasons stated in Considerando VIII of this judgment, the claim for recognition of what it allegedly ceased to receive from the sale of the lots, as a result of the time the Nombre25705 took to grant the water availability seals, is inadmissible, since, in the absence of an unjustified delay by the Nombre25705 of Carrizal de Alajuela in processing the procedure initiated to determine whether, according to the technical verification, it was appropriate or not to grant the water availability seal, the compensation sought by the plaintiff lacks basis. Consequently, the defense of lack of right is rejected, regarding the following aspects: 1) That for the reasons stated in Considerando V of this judgment, this Court orders the Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados, jointly and severally, to reimburse the plaintiff company the sum of 900,000.00, for the community contribution (aporte comunal) that was improperly charged to grant the water availability seals on the lots with cadastral map numbers A-1210946-2007 and A-1208715-2007. 2) Likewise, the Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados are jointly and severally ordered to pay the plaintiff interest on the sum of ¢900,000.00 colones, as financial damages, following the parameters set forth below, which must be concretized in the judgment execution phase: a) The interest shall be paid on the indicated sum, from April 04, 2008, the date on which the payment of ¢900,000.00 was made, until its effective payment; b) The interest shall be calculated based on the passive interest rate for six-month certificates from the Banco Nacional de Costa Rica, according to the currency involved, as provided in Article 1163 of the Civil Code; c) Regarding the adjustment of the economic value of the obligation (indexation), a pronouncement which, in light of article 123 of the Code of Contentious Administrative Procedure, is ex officio for this court, when the granting of interest is ordered, as financial damages, as indicated, it is included in this latter item; 3) That in application of subsection k) of Article 122 of the Code of Contentious Administrative Procedure, this Court declares that official communication number GG-2009-0125 of May thirteenth, two thousand nine, issued by the General Management of the Instituto Costarricense de Acueductos y Alcantarillados, is contrary to the provisions of Articles 129, 136, 158, 166, 173, and 183, subsection 3) of the General Law of Public Administration; 11 subsections j, k, and l, 15 of the Constitutive Law of A y A.
XIo.- CONCERNING COSTS (COSTAS). In accordance with article 193 of the Code of Contentious Administrative Procedure, procedural and personal costs (costas procesales y personales) constitute a burden imposed on the losing party for the fact of being so. The dispensation of this award is only viable when, in the Court's judgment, there was sufficient reason to litigate or when the judgment is issued by virtue of evidence whose existence was unknown to the opposing party. In the case at hand, this Court considers that the parties have had sufficient reason to litigate; consequently, they are exonerated from the payment of personal and procedural costs of this proceeding.
POR TANTO.
The defenses of lack of active and passive legal standing (legitimación activa y pasiva), and lack of current interest are rejected. The defense of lack of right is upheld, solely regarding that: a) The indemnity claim related to the expenses to carry out the works required by the Nombre25705 of Carrizal de Alajuela in order to grant the water availability seal for lots Placa27094 and Placa27092 is inadmissible, since the plaintiff did not demonstrate the existence of material damages and the causal link, in accordance with the provisions of Articles 190 and 196 of the General Law of Public Administration; b) The claim for reimbursement of the amounts that the plaintiff company paid for breach of the promise of purchase-sale regarding the immovable property registered under real folio number Placa27089 (cadastral map number a-1210946-20007) is contrary to the provisions of Articles 32 to 36 of the Urban Planning Law; 21, subsection 19 of the ASADAS Regulation and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations (Reglamento para el Control Nacional de Fraccionamientos y Urbanizaciones), and to the principles of contractual good faith and that no one may benefit from their own wrongdoing (nadie puede sacar provecho de su propio dolo); c) That, in the absence of an unjustified delay by the Nombre25705 of Carrizal de Alajuela in processing the procedure initiated to determine whether, according to the technical verification, it was appropriate or not to grant the water availability seal, the claim for recognition of what it allegedly ceased to receive from the sale of the lots, as a result of the time the Nombre25705 took to grant the water availability seals, lacks basis. Consequently, the defense of lack of right is rejected in the remaining aspects and the lawsuit is declared partially with merit filed by Nombre140629 Consultores GECCH S.A. against the Asociación Administradora del Acueducto y Alcantarillado Sanitario de Carrizal de Alajuela (ASADA) and the Instituto Costarricense de Acueductos y Alcantarillados (A y A), in the following terms, it being understood as denied in what is not expressly indicated: 1) The Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados are ordered, jointly and severally, to reimburse the plaintiff company the sum of 900,000.00 colones, for the community contribution (aporte comunal) that was improperly charged to grant the water availability seals on the lots with cadastral map numbers A-1210946-2007 and A-1208715-2007.
\n\n**2)** The Nombre25705 de Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados are jointly and severally ordered to pay the plaintiff interest on the sum of ¢900,000.00 colones, as financial loss (perjuicio financiero), following the parameters set forth below, which shall be executed in the sentence enforcement phase:\n\n**a)** The interest shall be paid on the indicated sum, from April 4, 2008, the date on which the payment of the ¢900,000.00 was made, until its effective payment;\n\n**b)** The interest shall be calculated based on the passive interest rate for six-month certificates of deposit of the Banco Nacional de Costa Rica, according to the currency involved, as provided in Article 1163 of the Civil Code;\n\n**c)** Regarding the adjustment of the economic value of the obligation (indexation), a ruling that, in light of Article 123 of the Contentious Administrative Procedure Code, is official for this court, since the granting of interest, as a financial loss (perjuicio financiero), as indicated, is included in this latter item;\n\n**3)** In application of subsection k) of Article 122 of the Contentious Administrative Procedure Code, it is declared that official letter number GG-2009-0125 of May thirteenth, two thousand nine, issued by the General Management of the Instituto Costarricense de Acueductos y Alcantarillados, is contrary to the provisions of Articles 129, 136, 158, 166, 173, and 183 subsection 3) of the General Law of Public Administration; 11 subsections j, k, and l, 15 of the Constitutive Law of the AyA;\n\n**4)** The parties are exonerated from the payment of both costs, in accordance with the provisions of Article 193 subsection b) of the Contentious Administrative Procedure Code.\n\n\n\n**Nombre140632**\n\n\n\n**José Roberto Garita Navarro** **Otto González Vílchez**\n\n\n\nEXPEDIENTE: 09-000845-1027-CA\n\nPROCESO DE CONOCIMIENTO DECLARADO DE PURO DERECHO\n\nACTORA: Nombre140629 CONSULTORES GECCH S.A.\n\nDEMANDADO: ASOCIACIÓN ADMINISTRADORA DEL ACUEDUCTO Y ALCANTARILLADO SANITARIO DE CARRIZAL DE ALAJUELA Y OTRO\n\nPursuant to the provisions of subsection g) of Article 2 of the Constitutive Law of A y A and Article 3 of the Regulation of the ASADAS, said entity is empowered to delegate, through an agreement signed for that purpose, following a favorable agreement of the Board of Directors (Junta Directiva), the administration, operation, maintenance, and development of communal aqueduct and/or sewerage systems, in favor of associations duly constituted and registered in accordance with the provisions of the Law of Associations. As the governing body in matters of aqueducts and sewerage, A y A must ensure that all such systems comply with the principles of public service provided for in Article 4 of the General Law of Public Administration (Ley General de la Administración Pública), for which reason it may assume the administration, operation, maintenance, and development of all communal aqueduct and/or sewerage systems, regardless of their administrator, when such principles are not guaranteed *(Articles 2, paragraph 2, and 4 of the Regulation of the ASADAS)*. Now, in urban planning matters, the development of land through its subdivision (fraccionamiento) or urbanization (urbanización) shall be permitted, provided that –among other requirements– the lots can have access to the essential services according to the characteristics of the area *(Article 32 of the Law of Urban Planning and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations).* In that sense, approval by the Costa Rican Institute of Aqueducts and Sewerage, or the Administrative Association of the Communal Aqueduct and Sewerage Systems (Asociación Administradora de los Sistemas de Acueductos y Alcantarillados Comunal) (see Articles 18 and 21, subsection 19 of the Regulation of the ASADAS), shall be mandatory for any project *“… of construction of subdivisions (fraccionamientos), urbanizations (urbanizaciones) or lotifications (lotificaciones) in any part of the country, and no other state agency shall grant construction permits or approvals without such approval by the Institute. Violation of this mandate shall cause the nullity of any construction permit granted in contravention of this prohibition, with the parceling (parcelación) or the project, as applicable, being considered legally non-existent…” (see Article 21, paragraph 2 of the Constitutive Law of A y A).* For this specific case, it should be noted that the type of approval granted by A y A or the ASADA, in matters of water availability or water and/or sanitary sewerage services for urban planning purposes, depends on the purpose sought with the project submitted for approval, namely: **1)** **The municipal approval of plans** indicating the situation and area of the resulting portions, **in cases of subdivisions (fraccionamientos)** of land or properties located in urban sites and other areas subject to urban planning control *(Articles 32 to 36 of the Law of Urban Planning; 21, subsection 19 of the Regulation of the ASADAS and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations; 15 of the Law of Constructions).* In these cases, what is issued is a **water availability seal**, which guarantees, for a period of six months in cases of single-family homes or one year for other types of developments –which may be extended–, the capacity of the aqueduct and sanitary sewerage systems in the area to supply said services to the property during the indicated period. The seal must be granted whenever there is technical viability; it does not harm the quality of the service provided; and infrastructure exists. It constitutes, therefore, a requirement that must be fulfilled prior to the competent Municipality determining whether or not the approval of the property's plans proceeds, a requirement that is indispensable for the Public Registry to proceed with the registration of documents, regarding subdivisions (fraccionamientos) of farms located in urban districts *(Articles 32, 33, 34, and 35 of the Law of Urban Planning).* It should be noted that Article 25 of the Regulation of the ASADAS does not establish that, for the granting of the water availability seal, the interested party must be charged the rates or fees indicated therein; **2)** In cases where a **permit to urbanize land** is requested, approval of the construction plans by the Engineering Department of the competent Municipality, the Urbanism Directorate (Dirección de Urbanismo), and the Costa Rican Institute of Aqueducts and Sewerage is indispensable *(Articles 38 of the Law of Urban Planning; 21, paragraph 2 and 23 of the Constitutive Law of A y A; Regulation for the Application of Article 38 of the Law of Urban Planning in Aqueduct and Sewerage Works of A y A).* In this scenario, what is granted is a **certification of availability of water and/or sanitary sewerage services,** through which the existing potable water and/or public sewerage services in the area are enabled. Said certification shall be issued by A y A or the ASADA, once the developer has executed all works in accordance with the current technical regulations and the operator of the aqueduct and sewerage service carries out the respective technical tests, in order to receive the works and proceed with the connection and operation of the services *(see Articles 38, subsection a) of the Law of Urban Planning 1 and 11 of the Regulation for the Application of Article 38 of the Law of Urban Planning in Aqueduct and Sewerage Works of A y A; 18 of the Regulation of the ASADAS).* **3)** Once the potable water and/or public sewerage services are enabled, the property owner, their legal representative, or the precarious possessors and occupants who have held the land for more than one year may submit the **application for new potable water and/or sanitary sewerage services, which may be temporary or permanent** *(Articles 30 to 36, 52 to 55 of the Regulation for the Provision of Services to Clients of A y A).* Consequently, to file an application for a new potable water or sanitary sewerage service, it is necessary –among other requirements– to present the duly approved cadastral and construction plans of the property, and that a potable water and/or public sewerage service network exists, in accordance with the provisions of Articles 38 and 39 of the Law of Urban Planning, which implies that the works have been executed according to the technical specifications of A y A, the system tests have been carried out, and the works have been received by the operator of the aqueduct and sewerage system. The foregoing implies that to process an application for a new potable water or sanitary sewerage service, the subdivider (fraccionador) or the urbanizer (urbanizador) must necessarily have completed the prior stages referring to the granting of a water availability seal and a certification of availability of water and/or sanitary sewerage services, as a *sine qua non* requirement to enable the existing services and proceed with their connection and operation, when so requested by the owner or the good-faith possessor of the property. Now, it should be noted that **the connection of a new potable water and/or sewerage service entails a cost** that must be paid by the petitioner (petente) upon submitting the application with the requirements demanded by Article 32 of the Regulation for the Provision of Services to Clients of A y A. **In the event that the system operator is an ASADA,** each application for a new service will be charged the cost of the communal contribution, in those cases where the aqueduct and sanitary sewerage systems were built with community participation *(Article 3 of the Constitutive Law of A y A; subsection 4 of Article 25 of the Regulation of the ASADAS)*; otherwise, the current rate for new services shall be charged *(Article 3 of the Constitutive Law of A y A; subsection 2.a of Article 25 of the Regulation of the ASADAS).* Based on all the foregoing, the arguments of the parties will be analyzed, in order to determine whether the claim of the company Trilogy Consultores GECCH S.A. is or is not admissible under the law.”\n\n2.- The representative of the INSTITUTO COSTARRICENSE DE ACUEDUCTOS Y ALCANTARILLADOS answered the complaint negatively and raised the defenses of lack of active and passive standing to sue (legitimación ad causam activa y pasiva), lack of interest, and lack of right. He requested that the judgment declare the complaint without merit in all its aspects and that the plaintiff be ordered to pay both costs of this proceeding (folios 154 to 163 of the judicial file). The representative of the ASOCIACIÓN ADMINISTRADORA DEL ACUEDUCTO Y ALCANTARILLADO SANITARIO DE CARRIZAL DE ALAJUELA answered the complaint negatively and raised the defenses of lack of active and passive standing to sue (legitimación ad causam activa y pasiva), and lack of right. He requested that the judgment declare the complaint without merit in all its aspects and that the plaintiff be ordered to pay both costs (folios 307 to 313 of the judicial file).\n\n3.- That by resolution at seven hours and thirty-three minutes on June twenty-ninth, two thousand nine (folios 314 and 315 of the judicial file), the plaintiff was granted a hearing for counter-evidence regarding the oppositions filed. That by order at fifteen hours and fifty-six minutes on August twenty-seventh, two thousand nine (folio 337 of the judicial file), the parties were summoned to a preliminary hearing, to be held at nine hours on October fifteenth, two thousand nine.\n\n4.- That the preliminary hearing was held at nine hours nineteen minutes on October fifteenth, two thousand nine, which was recorded in the corresponding electronic system and is added to the file in a special docket. During this hearing, the Processing Judge requested the two attorneys from the Instituto Costarricense de Acueductos y Alcantarillados to leave the stand, given that they appeared without a power of attorney that authorized them to appear and intervene in the hearing. Likewise, she declared this matter to be of pure law and the parties presented their closing arguments (see folios 338 and 339 of the judicial file and the audiovisual record of the preliminary hearing).\n\n5.- That this matter was referred to the Reporting Judge of the Sixth Section of the Contentious-Administrative Tribunal on September twenty-third, two thousand nine (folio 340 verso of the judicial file).\n\n6.- That by a writing received at this Office at ten hours forty minutes on October twenty-third, two thousand nine (folios 342 to 344 of the judicial file), Nombre133870, in his capacity as General Judicial Attorney-in-Fact of the Instituto Costarricense de Acueductos y Alcantarillados, requested that he be excused for not having participated in the preliminary hearing held at nine hours nineteen minutes on October fifteenth, two thousand nine, since as a consequence of the diabetes he suffers from, he was incapacitated from working during the days of October fifteenth and sixteenth of the current year, as stated on disability form number 0023406, a circumstance that made it impossible for him to attend the hearing scheduled for those dates.\n\n7.- That by resolution at seven hours thirty minutes on October thirtieth, two thousand nine (folio 345 of the judicial file) and pursuant to the provisions of subsection 1) of article 81 of the Autonomous Regulation for Organization and Service of the Contentious-Administrative Jurisdiction, it was resolved to suspend the fifteen-business-day deadline established for issuing the judgment in this proceeding, given that the Reporting Judge found herself in the imperative need to withdraw from the exercise of her functions due to unforeseen health reasons. That consequently, at the time the force majeure reason arose, 6 business days of the deadline for issuing judgment had elapsed, for which reason, 9 business days would remain for the respective judgment to be issued, which implies that the deadline will begin to be computed as of November 16th of this year and will conclude on November 26th, two thousand nine.\n\n8.- In the proceedings before this Tribunal, no nullities have been observed that must be remedied or that cause defenselessness, and the judgment is issued within the term established in article 98 subsection 2) of the Contentious-Administrative Procedural Code, in relation to subsection 4) of article 82 of the Autonomous Regulation for Organization and Service of this Jurisdiction. -\n\nDrafted by Judge Nombre140632, with the affirmative vote of Judges Garita Navarro and González Vílchez; and,\n\nC O N S I D E R I N G:\n\nIo.- REGARDING THE JUSTIFICATION FOR ABSENCE FROM THE PRELIMINARY HEARING PRESENTED BY THE GENERAL ATTORNEY-IN-FACT OF THE INSTITUTO COSTARRICENSE DE ACUEDUCTOS Y ALCANTARILLADOS. Having seen the writing presented by Attorney Nombre133870, in his capacity as General Judicial Attorney-in-Fact of the Instituto Costarricense de Acueductos y Alcantarillados (folio 342 to 344 of the judicial file), in which he requests \"...that this disability be accepted and that I be excused for not participating in said hearing, since as I indicated previously, I was not in good health, which is why the disability certificate was issued for the days of October 15th and 16th, 2009...\", this Tribunal accepts it as filed and added to its records.\n\nIIo.- PROVEN FACTS: The following facts that are relevant to this proceeding are deemed duly accredited: 1) That in La Gaceta number 150 of August fifth, two thousand five, Decreto Ejecutivo number 32529 was published, by which the Reglamento de las Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Comunales was enacted, which in its article 21 subsection 19) establishes: \"... Grant the water availability seal (sello de disponibilidad hídrica), which shall have a validity of 6 months for single-family homes and one year for other developments requiring potable water and sanitary sewer service, which may be extended. This seal must be granted provided there is technical viability, it does not detract from the quality of the service being provided, and infrastructure exists...\" (see digital archive of Decreto Ejecutivo number 32529, on the website: www.pgr.go.cr/scij); 2) That the plaintiff company was the owner of two properties registered in the National Registry under real estate folio registration numbers Placa27089 (cadastral map number Placa27090) and Placa27091 (cadastral map number Placa27092), both located in District 03 (Carrizal), of Canton 01 of the Province of Alajuela, (uncontested fact, see audiovisual record of the preliminary hearing); 3) That at fifteen hours on September twenty-seventh, two thousand seven, the Generalissima Attorney-in-Fact of the company Nombre140629 Consultores GECCH S.A., signed with Nombre140636, a promise of sale and purchase for the coffee plantation land registered in the Public Registry under real estate folio registration number Placa27091 (cadastral map number Placa27092), located at Dirección16983, a contract in which the following clauses—in pertinent part—were established: 3.a) On the commitment and the price. \"The seller commits that on the expiration date of this option’s term, or at the moment the buyer wishes to deliver the entirety of the agreed-upon outstanding price balance, she will appear before a Notary Public to execute this option and transfer to the name of the buyer or the natural or legal person the buyer indicates, the property described above, free of all types of judicial and mortgage liens (...) Likewise, free of any pending annotation for registration, as well as free of squatters, trespassers, tenants, and possessors, with real estate property taxes and all municipal taxes and fees duly paid and up to date as of the execution date of this contract and provided the buyer satisfies the following payment conditions: the total price of the property shall be the sum of twenty million colones\"; 3.b) The term. \"The term of this promise shall be until the twenty-seventh day of March, two thousand eight...\"; 3.c) Indemnification for non-performance and penalty clause (cláusula penal). \"... In the event of breach by the seller, she commits to indemnify the buyer with the sum of six hundred thousand colones. Additionally, she must return the five hundred thousand colones earnest money (arras)...\"; 3.d) Conservation of the property. \"... The seller commits to maintaining the property object of this contract in the same environmental, ecological, forest, structural, and legal conditions in which it is found today, and as it was viewed by the buyer...\"; 3.e) Affidavit (declaración jurada). \"... The seller guarantees to the buyer regarding the property optioned herein, and for these purposes declares under oath, which swearing is rendered in this very act and knowing of the sanctions with which Costa Rican law sanctions and punishes the crimes of false testimony and perjury, the following: (a) That she has no knowledge that the State has initiated expropriation proceedings, total or partial, that may affect the property, nor does she know of or foresee any proceeding in that regard; (b) That the farm is up to date in the payment of territorial taxes, road assessments, and each and every one of the municipal fees and taxes as well as up to date on any other tax, fee, or levy that could affect it; (c) That the seller has the unrestricted right to sell and transfer the described land and has, furthermore, complete and unrestricted title of ownership over said property; (d) That she is the sole legitimate possessor of the property given in option through this contract, and therefore is the only one who has the use, absolute dominion, possession, and usufruct over said farm; (e) That she has not given the property described above in a purchase-sale option to any other third party, natural or legal, with the exception of the buyer herein; (f) That there are no third parties, natural or legal, who dispute the right of ownership that is given in option by this present contract, nor who dispute the rights of possession, use, enjoyment, and full enjoyment of said property; that the same is free from liens, annotations, charges, encumbrances, claims, obligations, liabilities, conditions precedent or subsequent, leases, third-party rights of any nature, without occupants at will, or of another nature...\" (see folios 298 to 302 of the judicial file); 4) That on January twenty-third, two thousand eight, the plaintiff company filed a request with the Asociación Administradora del Acueducto de Carrizal de Alajuela, in which it stated: \"... In order to complete the municipal approval process (visado municipal) for two lots in our name, the Municipalidad de Alajuela requires from us an approval from the water provider of the zone, regarding water availability. We request from you the water availability for the following lots: A-1210946-2007 (500m2) and A-1208715-2007 (993.78m2), located across from the football field of Pavas de Carrizal (...) The use to be given to the lots is residential...\" (see document at folio 205 of the judicial file); 5) That on January 30, two thousand eight, the plaintiff company filed a writing before the Asociación Administradora del Acueducto y Alcantarillado Sanitario de Carrizal de Alajuela, in order to request the resolution of the water availability requests for lots A-1210946-2007 and A-1208715-2007, within a maximum period of eight business days, given that \"...at this moment we are trying to sell the lots in question, however, because we do not have water availability and thereby the corresponding municipal approval, the sales have not been able to be finalized...\" (see folios 206 and 207 of the judicial file); 6) That by official communication number DAR-2007-0440 of February twenty-sixth, two thousand eight, the Director of Rural Aqueducts of the Instituto Costarricense de Acueductos y Alcantarillados, communicated to the President of the Asociación Administradora del Acueducto Rural de Carrizal de Alajuela, that the \"... Sello de Disponibilidad Hídrica: it is a prerequisite to construction procedures Art. 21 of the Reglamento de las Asociaciones Administradoras de los Sistemas de Acueductos y Alcantarillado Comunal (...) Furthermore, the difference between the water availability letter and the request for new service, which is described in Article 31 of the Reglamento de Prestación de Servicio a los Clientes, must be taken into account. For the foregoing and under the conditions set forth, the water resource availability letter can be granted for only the two lots proposed (A-1210946-2007) and (A-1208715-2007), these may not be segregated into smaller lots otherwise the provisions of the Reglamento de Planificación Urbana would apply...\" (see folio 210 of the judicial file); 7) That on March seventeenth, two thousand eight, the plaintiff company filed a writing before the Asociación Administradora del Acueducto y Alcantarillado Sanitario de Carrizal de Alajuela, by which it communicated that: \"... In reference to the process of granting water availability to our two lots A-1210946-2007 and A-1208715-2007, I indicate that according to the site inspection carried out by officials and the president of the Nombre25705 de Carrizal on Friday, March 14, 2008, at around ten in the morning, we proceeded to implement the technical requirements requested by you: 1. We proceeded to install piping in the green zone of the sidewalk in front of the lots in question. A definitive green zone as a public service easement (servidumbre de servicios pública) intended for purposes such as this. 2. Nine 2\" SDR 17 PVC potable water pipes were installed. 3. The pipe installation was carried out to the side of the national road; there, a control valve and an aluminum valve cover were installed. 4. The piping was buried at the requested depth. 5. A 1/2 inch outlet was left in each lot, the first coming from a \\\"T\\\" with a reduction from 2\\\" to 1/2\\\", and in the second lot from a 2\\\" elbow with a reduction to 1/2\\\"...\" (see folios 211 and 212 of the judicial file); 8) That on March twenty-ninth, two thousand eight, the plaintiff company paid Nombre140636 the sum of ¢600,000 colones corresponding to the payment of indemnification for the breach of the purchase-sale option agreed upon with that person; likewise, it returned the ¢500,000 colones that, as earnest money (arras), the buyer had given to the plaintiff on the day they signed the purchase-sale option (see document at folio 303 of the judicial file); 9) That by official communication number ASADA-022-03-2008 of March thirty-first, two thousand eight, the President of the Asociación Administradora del Acueducto de Carrizal de Alajuela, communicated to the plaintiff company that: \"... In a meeting on March 27th of the current year held in our offices and after clarifying several concerns, the following is determined: Your represented party has 4 registered properties, therefore the procedure that was carried out with Acueductos y Alcantarillados was not correct, since it was processed only for two properties. Therefore, we request you most respectfully, as agreed, that we be given a further period of time to study the situation comprehensively regarding the water resource because we have conveyance problems due to the location’s small-diameter piping (...) Counting on your valuable willingness to grant us more time and with your consent regarding the community contribution, in order to expedite the availability of the Sello del Recurso Hídrico, we commit to contracting and managing the corresponding studies starting March 28, 2008. As soon as these are carried out or we come to an agreement, we will meet to finalize this matter...\" (see document at folio 61 of the judicial file); 10) That by a writing dated April third, two thousand eight, the plaintiff company indicated to the Asociación Administradora del Acueducto de Carrizal de Alajuela, that: \"... In reference to the process of granting water availability for lots A-1210946-2007 (500 m2) and A-1208715-2007 (993.78 m2), I indicate that in the meeting we held on Thursday, March 27th, we agreed that you would update the community contribution figure for a new service, and given that this update was relatively simple, in a few days (2 or 3 days) you would already have the necessary information.\n\nFor our part, we agreed to give you that time so that you could update that information. However, today marks one week since the meeting, and we have not received any official communication from the ASADA-Carrizal (...) I estimate that given the length of the process (71 days), we deserve a final resolution to our petition, by this week...\" (see document at folio 60 of the judicial file); **11)** That on April 3, 2008, the Asociación Administradora del Acueducto de Carrizal de Alajuela approved granting the water availability seal (sello de disponibilidad hídrica) to the properties with cadastral map numbers A-1210946-2007 and A-1208715-2007, registered in the name of the company Nombre140629 Consultores GECCH S.A., under real folio registration number Placa27093, a document which stated: *\"...This water availability seal is valid for 6 months and is granted for the cadastral map of the property so that the registered owner may carry out the corresponding procedures for municipal approval (Artículo 21 inciso 19, of the regulation of Asociaciones Administradores de Acueductos)...\" (see documents at folios 219 and 220 of the judicial file);* **12)** That on April 4, 2008, the plaintiff company paid the Asociación Administradora del Acueducto y Alcantarillados Sanitario de Carrizal de Alajuela, via receipts number 1301 and 1302, the sum of ¢450,000 colones for each of the properties registered in cadastral maps number Placa27094 and Placa27092, as a community contribution (aporte comunal) for water availability *(see document at folio 26 of the judicial file);* **13)** That on May 13, 2008, the plaintiff company filed a complaint before the Internal Audit Office (Auditoria Interna) of the Instituto Costarricense de Acueductos y Alcantarillados against the Asociación Administradora del Acueducto y Alcantarillados Sanitario de Carrizal de Alajuela, for alleged inconsistencies in the processing and charging of the request for water resource availability for two lots located in that community. That this same complaint was filed before the Board of Directors (Junta Directiva) of the Instituto Costarricense de Acueductos y Alcantarillados, which, by agreement number 2008-249 adopted in ordinary session number 032-2008 of May 20, 2008, ordered that this complaint be referred to the Internal Audit Office for its processing *(uncontested fact, see folio 274 of the judicial file and audiovisual record of the preliminary hearing);* **14)** That by official communication number Placa27095 of October 21, 2008, the Internal Audit Office of the Instituto Costarricense de Acueductos y Alcantarillados recommended that *\"...in the shortest possible time, the sum of ¢Placa27096 paid as a community contribution be reimbursed to the Company Nombre140629 Consultores ECCH S.A., in order to prevent this situation from being aired in other instances, with potential harm to the ASADA...\" ,* this because said Internal Audit Office considers that *\"... there is confusion on the part of the members of the ASADA Board of Directors regarding the interpretation of the concept of a request for water availability and the request for a new service or connection right that has been made in this case...\",* reason for which, *\"...this Internal Audit Office is of the opinion that the charging of a community contribution requested from the Company Nombre140629 Consultores GECCH S.A., as part of the water availability request process, is not appropriate, because the current regulations and the guidelines issued by A y A that regulate the matter do not contemplate it within the requirements demanded for such a procedure...\" (see document from folio 274 to 280 of the judicial file);* **15)** That by official communication number Placa27097 of November 21, 2008, the Internal Audit Office of the Instituto Costarricense de Acueductos y Alcantarillados issued a statement regarding the note sent by the ASADA Board of Directors, in which they requested rectification of the opinion issued by that audit office regarding the charge made, in the sense that *\"...the recommendations made are not only maintained, but the need is stressed to advise the Nombre25705 of Carrizal de Alajuela in a timely manner on sensitive issues such as those we have addressed...\" (see folios 284 to 285 of the judicial file);* **16)** That by article 4, subsection a) adopted in ordinary session number 2009-011 of November 17, 2008, the Board of Directors of the Instituto Costarricense de Acueductos y Alcantarillados ordered *\"...to approve the recommendations indicated in Report Placa27095 with the observations made by the Deputy General Management and the Legal Department and as agreed by Agreement No. 2008-531...\" (see document at folio 287 of the judicial file);* **17)** That by official communication number GG-2009-0125 of May 13, 2009, the Nombre40256 General of the Instituto Costarricense de Acueductos y Alcantarillados communicated to the Board of Directors of the Nombre25705 of Carrizal that they disagree with what was *\"...indicated in the Audit Office's communication in its recommendation 4-1, since such charges are based on the Reglamento de Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Comunales (...) It is therefore indicated that the Asociación Administradora del Acueducto Rural de Carrizal de Alajuela should not refund the indicated money...\",* given that *\"...the charge made to the Company Tryglogi (sic) Consultores does not correspond to a request for the water availability seal, since it was never requested from the Association, furthermore, that service is not considered within the funding sources for ASADAS in accordance with article 25 of the Reglamento de Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Comunales and it is not subject to a charge...\" (see document from folio 165 to 167 of the judicial file);* **18)** That the Nombre25705 of Carrizal de Alajuela proceeded with the installation of potable water services on the two properties that were owned by the plaintiff company, which in due course carried out the sale of said lots *(this circumstance is inferred from point 3 in fine of official communication number GG-2009-0125 of May 13, 2009, visible at folio 166 of the judicial file and from what was stated by the plaintiff, in section 11 of the claims at folios 20 and 21 of the judicial file).*\n\n**III.- UNPROVEN FACTS.** The following facts relevant to this process are deemed unproven: **a)** That the plaintiff company's breach of the promise of sale and purchase agreement (promesa de compraventa) signed with Nombre140636 , within the period established in the third clause of said contract, occurred as a consequence of the Nombre25705 of Carrizal de Alajuela granting the water availability seal only until April 3, 2008 *(this circumstance is not inferred from the document visible from folio 298 to 302 of the judicial file);* **b)** That as a consequence of the Nombre25705 of Carrizal de Alajuela proceeding to grant the water availability seal only until April 3, 2008, the plaintiff company failed to receive the sum of ¢1,800,500.00, for not selling the properties registered under cadastral maps number A-1210946-2007 and A-1208715-2007, prior to that date *(there is no evidence in the file);* **c)** That the plaintiff company paid the sum of ¢229,071.00 corresponding to the materials and labor used in the infrastructure that the Nombre25705 required it to build on lots number A-1210946-2007 and A-1208715-2007, prior to the granting of the water availability seals *(there is no evidence in the file);* **d)** That prior to the issuance of official communication GG-2009-0125 of May 13, 2009, by the General Management of the Instituto Costarricense de Acueductos y Alcantarillados, the plaintiff company was granted a hearing regarding the content of said communication, which is contrary to the provisions of article 4, subsection a) adopted by the Board of Directors of the Instituto Costarricense de Acueductos y Alcantarillados, in ordinary session number 2009-011 of February 17, 2009 *(this circumstance is not inferred from the document visible from folio 165 to 167 of the judicial file);* **e)** That the maps that the plaintiff company presented to the Municipalidad de Alajuela for their respective approval were construction plans *(this circumstance is not inferred from the documents visible at folios 205 and 210 of the judicial file);* **f)** That the Nombre25705 of Carrizal de Alajuela incurred in an unjustified delay in the technical verification of the requirements set forth in subsection 19 of article 21 of the Reglamento de las ASADAS, when processing the request filed by the plaintiff for the granting of the water availability seals *(this circumstance is not inferred from the document visible at folio 217 of the judicial file)*.\n\n**IV.- SUBJECT MATTER OF THE PROCEEDING.** The **plaintiff** considers that it was improper for the Nombre25705 of Carrizal de Alajuela to have charged the sum of ¢900,000.00 colones as a community contribution, for the following reasons: **1)** Because what it requested on January 23, 2008, was the granting of a water availability seal for lots number A-1210946-2007 and A-1208715-2007, and not the connection of a new potable water service, to such an extent that on April 3, 2008, two water availability seals were granted for a six-month period, for the purposes of the map approval procedure before the Municipality, for the indicated properties; **2)** That there is no regulatory basis that empowers the Nombre25705 of Carrizal de Alajuela to charge the community contribution of ¢450,000.00 colones for granting a water availability seal, since the provisions of article 25 of the Reglamento de Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Comunales are only applicable to cases in which a new potable water service has been requested; **3)** That there is no material error in the data recorded on receipts number 1301 and 1302, issued by the Nombre25705 of Carrizal de Alajuela, as proof that the plaintiff company paid the amount of ¢450,000.00 colones as a community contribution for water availability, for each of the lots for which it had requested the granting of said seal; **4)** That the defendants must cover the damages caused to the plaintiff company as a result of having improperly charged the community contribution, despite the fact that a new potable water service was not requested, but rather the water availability seal. For their part, the **Representatives of the Instituto Costarricense de Acueductos y Alcantarillados, and of the Nombre25705 of Carrizal de Alajuela,** allege that: **a)** There is a lack of current interest (falta de interés actual), not only because the plaintiff company is not currently the owner of the properties registered under cadastral maps number A-1210946-2007 and A-1208715-2007, but because at present, the new potable water connection services requested by the plaintiff company are duly installed; **b)** That the plaintiff did not request a water availability seal, but rather a water availability (disponibilidad de agua), understood as a request for a new potable water service, which is why the charging of the community contribution was appropriate, in accordance with the provisions of article 25 of the Reglamento de Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Comunales; **c)** That from the letter dated April 3, 2008, the company itself acknowledges that it requested a new potable water service, by referring to the payment of the community contribution. That because of these statements, the Management of the Instituto Costarricense de Acueductos y Alcantarillados changed its opinion in official communication number GG-2009-0125 of May 13, 2009, and established that the charging of the community contribution was appropriate; **d)** That while it is true that on receipts number 1301 and 1302 it was recorded that the sum of ¢450,000.00 colones was received from the plaintiff company for each of the lots as a community contribution for water availability, it is also true that an error was made, since the community contribution corresponds to the request for a new potable water service that the plaintiff company submitted, and not to the water availability seal that was also granted to it as part of the negotiation process held between both parties; **e)** That the plaintiff company has no right to be paid any compensation for the breach of the option to purchase and sale agreement (opción de compraventa), because unconsolidated contractual situations between the plaintiff and a third party are not the responsibility of its clients, especially since they apparently stem from a lack of diligence and haste on the part of the plaintiff when signing the option to purchase and sale agreement; **f)** That the Nombre25705 of Carrizal de Alajuela complied with the deadlines established in the legal system to resolve the request for a new water service filed by the plaintiff, which is why it is inappropriate to compensate the plaintiff for the amount it could have received from the sale of the two properties prior to April 3, 2008, the date on which the water availability seal was granted.\n\n**V.- ON THE SCOPE AND DIFFERENCES BETWEEN THE WATER AVAILABILITY SEAL; THE CERTIFICATION OF AVAILABILITY OF PUBLIC WATER AND/OR SEWERAGE SERVICES; AND THE APPLICATIONS FOR CONNECTION OF NEW POTABLE WATER AND SANITARY SEWERAGE SERVICES**. The Instituto Costarricense de Acueductos y Alcantarillados (A y A) is the autonomous institution responsible –as relevant here– for the administration and provision of potable water and sanitary sewerage services in all those communities or cities of the national territory that are or may come to be under its administration *(articles 1 and 2 of the Ley Constitutiva del A y A; 2 of the Reglamento de Prestación de Servicios a los Clientes and 2 of the Reglamento de las Asociaciones Administradoras de Sistemas de Acueductos y Alcantarillados Comunales).* Pursuant to the provisions of subsection g) of article 2 of the Ley Constitutiva del A y A and article 3 of the Reglamento de las ASADAS, said entity is empowered to delegate, through an agreement signed for that purpose, with the prior favorable agreement of the Board of Directors, the administration, operation, maintenance, and development of community aqueduct and/or sewerage systems, to associations duly constituted and registered in accordance with the provisions of the Ley de Asociaciones. As the governing body in matters of aqueducts and sewerage, A y A must ensure that all these systems comply with the principles of public service set forth in article 4 of the Ley General de la Administración Pública, which is why it may assume the administration, operation, maintenance, and development of all community aqueduct and/or sewerage systems, regardless of who their administrator is, when such principles are not guaranteed *(articles 2, paragraph 2, and 4 of the Reglamento de las ASADAS).* Now, in urban planning matters, the development of land through its subdivision (fraccionamiento) or urbanization (urbanización) will be permitted, provided that –among other requirements– the lots can have the essential services according to the characteristics of the area *(article 32 of the Ley de Planificación Urbana and Chapter I.5 of the Reglamento para el Control Nacional de Fraccionamiento y Urbanizaciones).* In this sense, approval by the Instituto Costarricense de Acueductos y Alcantarillados, or by the Asociación Administradora de los Sistemas de Acueductos y Alcantarillados Comunal (see articles 18 and 21 subsection 19 of the Reglamento de las ASADAS), of any project *\"... for the construction of subdivisions, urbanizations, or lot developments in any part of the country is mandatory, and no other state agency will grant construction permits or approvals without such approval from the Institute. The violation of this mandate will cause the nullity of any construction permit granted in contravention of this prohibition, with the parceling or project being considered legally non-existent in its case...\" (see article 21, paragraph 2 of the Ley Constitutiva del A y A).* For this specific case, it should be noted that the type of approval granted by A y A or the ASADA in matters of water availability or water and/or sanitary sewerage services for urban planning purposes depends on the purpose pursued with the project submitted for approval, namely: **1)** **The municipal approval (visado municipal) of maps** that indicate the situation and capacity of the resulting portions, **in cases of subdivisions (fraccionamientos)** of land or properties located in urban sites and other areas subject to urban planning control *(articles 32 to 36 of the Ley de Planificación Urbana; 21, subsection 19 of the Reglamento de las ASADAS and Chapter I.5 of the Reglamento para el Control Nacional de Fraccionamiento y Urbanizaciones; 15 of the Ley de Construcciones).* In these cases, what is issued is a **water availability seal,** which guarantees for a period of six months in the case of single-family dwellings, or one year for other types of developments –which may be extended– the capacity of the aqueduct and sanitary sewerage systems in the area to supply the property with said services during the indicated period. The seal must be granted whenever there is technical feasibility; it does not detract from the quality of the service provided; and infrastructure exists. *This therefore constitutes a requirement that must be met before the competent Municipality determines whether or not the approval of the property's maps proceeds, a requirement that is essential for the Public Registry to proceed with the registration of documents regarding subdivisions of properties included in urban districts* *(articles 32, 33, 34 and 35 of the Ley de Planificación Urbana).* It should be noted that article 25 of the Reglamento de las ASADAS does not establish that for the granting of the water availability seal, the fees or charges indicated therein must be collected from the interested party; **2)** In cases where a **permit to urbanize land** is requested, the approval of the construction plans by the Engineering Department of the competent Municipality, the Urban Planning Directorate, and the Instituto Costarricense de Acueductos y Alcantarillados is essential *(articles 38 of the Ley de Planificación Urbana; 21, paragraph 2, and 23 of the Ley Constitutiva del A y A; Reglamento para la Aplicación del Artículo 38 de la Ley de Planificación Urbana en Obras de Acueductos y Alcantarillados del A y A).* In this case, what is granted is a **certification of availability of water and/or sanitary sewerage services,** through which the existing potable water and/or public sewerage services in the area are enabled. This certification will be issued by A y A or the Nombre25705 once the developer has executed all the works in accordance with the current technical regulations and the operator entity of the aqueduct and sewerage service carries out the respective technical tests, in order to receive the works and proceed with the connection and operation of the services *(see articles 38 subsection a) of the Ley de Planificación Urbana 1 and 11 of the Reglamento para la Aplicación del Artículo 38 de la Ley de Planificación Urbana en Obras de Acueductos y Alcantarillados del A y A; 18 of the Reglamento de las ASADAS).* **3)** Once the potable water and/or public sewerage services are enabled, the owner of the property, their legal representative, or precarious possessors and occupants who have held the land for more than one year may submit the **application for new potable water and/or sanitary sewerage services, which may be temporary or permanent** *(articles 30 to 36, 52 to 55 of the Reglamento de Prestación de Servicios a los Clientes del A y A).* Consequently, to submit an application for a new potable water or sanitary sewerage service, it is necessary –among other requirements– to present the duly approved cadastral map of the property and construction plan, and for a potable water and/or public sewerage service network to exist, in accordance with the provisions of articles 38 and 39 of the Ley de Planificación Urbana, which implies that the works have been executed in accordance with the technical specifications of A y A, tests have been carried out on the system, and the works have been received by the operator entity of the aqueduct and sewerage system. *The foregoing implies that to process an application for a new potable water or sanitary sewerage service, the subdivider or urbanizer necessarily had to complete the prior stages referred to as the granting of a water availability seal and a certification of availability of water and/or sanitary sewerage services, as a sine qua non requirement for enabling existing services and proceeding with their connection and operation, when requested by the owner or the good faith possessor of the property.* Now, it should be noted that **the connection of a new potable water and/or sewerage service entails a cost** that must be paid by the applicant when submitting the application with the requirements demanded by article 32 of the Reglamento de Prestación de Servicios a los Clientes del A y A.\n\nIn the event that the system operating entity is an ASADA, each application for a new service shall be charged the cost of the community contribution (aporte comunal), in those cases where the aqueduct and sanitary sewer systems were built with community participation *(article 3 of the Constitutive Law of A y A; subsection 4 of article 25 of the Regulation of the ASADAs)*, otherwise, the current rate for new services shall be charged *(article 3 of the Constitutive Law of A y A; subsection 2.a of article 25 of the Regulation of the ASADAs).* Based on all the foregoing, the arguments of the parties will be analyzed in order to determine whether the claim of the company Nombre140629 Consultores GECCH S.A. is or is not admissible according to law.\n\n**VI.- REGARDING THE REQUEST MADE BY THE PLAINTIFF COMPANY; THE COLLECTION OF THE COMMUNITY CONTRIBUTION BY THE Nombre25705 OF CARRIZAL OF ALAJUELA AND RELATED ACTS ISSUED BY THE MANAGEMENT OF A Y A**. Contrary to what the representatives of the Instituto Costarricense de Acueductos y Alcantarillados, and of the Nombre25705 of Carrizal of Alajuela, maintain, this Tribunal considers that through the document filed on January twenty-third, two thousand eight, what the plaintiff company requested from the defendant Association was the granting of a water availability seal (sello de disponibilidad hídrica) for the lots with cadastral plan number A-1210946-2007 and A-1208715-2007 and not a new potable water service for those properties, which is why the charge of 450,000.00 colones for a community contribution for each of the lots constitutes an undue payment. Said statement is supported by the following reasons: **1)** It has been proven that, on January twenty-third, two thousand eight, the plaintiff company submitted a request to the Asociación Administradora del Acueducto de Carrizal de Alajuela, in which it indicated: *\"...In order to complete the municipal approval (visado municipal) process for two lots in our name, the Municipality of Alajuela requires an approval from the local water provider regarding water availability. We request from you the water availability for the following lots: A-1210946-2007 (500m²) and A-1208715-2007 (993.78m²), located in front of the football field in Pavas de Carrizal (...) The use to be given to the lots is residential...\" (see document on folio 205 of the judicial file);* **2)** While it is true that the plaintiff company referred in its request *\"to an approval regarding water availability,\"* it is also true that the plaintiff was clear in indicating that said requirement was being demanded by the Municipality of Alajuela for the purpose of completing the approval of two lots registered in its name *(folio 205 of the judicial file).* That the foregoing disproves the argument given by the Representative of the Nombre25705 of Carrizal of Alajuela, to the effect that the plaintiff company never referred to the fact that *“the approval regarding water availability”* was to complete the municipal approval process for lots A-1210946-2007 (500m²) and A-1208715-2007 (993.78m²); **3)** It should be taken into consideration that even through official communication number DAR-2007-0440 of February twenty-sixth, two thousand eight, the Director of Rural Aqueducts of the Instituto Costarricense de Acueductos y Alcantarillados informed the President of the Asociación Administradora del Acueducto Rural de Carrizal de Alajuela that he could grant the water availability seal to the plaintiff company, indicating that the *\"...Water Availability Seal: is a prerequisite for construction procedures Art. 21 of the Regulation of the Community Aqueduct and Sewer System Administration Associations (...) Moreover, the difference must be taken into account between the water availability letter and the new service request which is described in Article 31 of the Regulation for Provision of Service to Clients. Based on what is described above and under the conditions set forth, the water resource availability letter can be granted for only the two specified lots (A-1210946-2007) and (A-1208715-2007), these may not be segregated into smaller lots, otherwise the provisions of the Urban Planning Regulation would apply...\" (see folio 210 of the judicial file);* **4)** While it is true that in the notes submitted by the plaintiff on March seventeenth and April third, two thousand eight, before the Nombre25705 of Dirección16984, reference is made to the fact that they are waiting for the inspection of the infrastructure works that were ordered to be carried out as a requirement to grant them water availability *(folios 211 and 212 of the judicial file),* and that the plaintiff company urges the Nombre25705 to update the amount to be paid for a community contribution for a new service *(folio 60 of the judicial file);* it is also true that said statements do not have the power to modify the nature of the request filed by the plaintiff on March twenty-third, two thousand eight, in the sense that what was pursued was a water availability seal, as a prerequisite for the municipal approval of the plans corresponding to lots number A-1210946-2007 and A-1208715-2007, just as stated by the Director of Rural Aqueducts of the Instituto Costarricense de Acueductos y Alcantarillados, through official communication number DAR-2007-0440 of February twenty-sixth, two thousand eight *(see folios 205 and 210 of the judicial file);* **5)** From all the foregoing, it is evident that the process that the plaintiff had pending before the Municipality of Alajuela is the one regulated by articles 32 to 37 of the Urban Planning Law, namely: the approval of plans that indicated the situation and capacity of lots number A-1210946-2007 and A-1208715-2007, as an indispensable requirement for any subdivision (fraccionamiento) of land or properties located in urban sites and other areas subject to urban control. Therefore, and in application of the provisions of articles 32 of the Urban Planning Law; 21 subsection 19 of the Regulation of the ASADAs; Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations; 15 of the Construction Law, the requirement to be met was the water availability seal, in order to guarantee for a period of six months in cases of single-family homes or one year for other types of developments –which may be extended–, the capacity of the aqueduct and sanitary sewer systems in the area to supply the property with said services during the indicated period; **6)** Furthermore, it is worth highlighting that the Nombre25705 of Carrizal of Alajuela itself approved granting the water availability seal to the properties with cadastral plan number A-1210946-2007 and A-1208715-2007, registered in the name of the company Nombre140629 Consultores GECCH S.A., a document in which it was recorded *\"...This water availability seal is valid for 6 months and is granted to the cadastral plan of the real estate property so that the registered Owner may carry out the corresponding municipal approval procedures (Article 21 subsection 19, of the regulation of Associations of Aqueduct Administrators)...\" (see documents on folios 219 and 220 of the judicial file).* It should be taken into consideration that if it had been a request for a new potable water and/or sanitary sewer service, a six-month validity would not have been recorded –unless it was a temporary service in accordance with the provisions of article 54 of the Regulation of Provision of Services to Clients of A y A–, nor would reference have been made to the municipal approval procedure, since this latter aspect is precisely one of the requirements that must be met to request the connection of a new service *(see articles 31 and 32 subsection 4 of the Regulation of Provision of Services to Clients of A y A);* **7)** Consequently, and in application of the elementary principles of logic and reasonableness, this Tribunal considers that neither the Nombre25705 of Carrizal of Alajuela nor the General Management of A y A could interpret that the plaintiff company had requested the connection of a new potable water service, not only because the plaintiff was clear in her request by indicating that she required *“an approval regarding water availability”*, given that this requirement was demanded by the Municipality of Alajuela for the purposes of completing the approval of two lots registered in its name *(folio 205 of the judicial file);* but also because, in order to process a request for a new potable water or sanitary sewer service, the subdivider or the urbanizer must necessarily comply with the prior stages referring to the granting of a water availability seal and a certification of availability of water and/or sanitary sewer services, as a prerequisite sine qua non for enabling the existing services and proceeding with their connection and operation, when requested by the owner or the possessor in good faith of the property. Based on all the foregoing and in accordance with the provisions of articles 32, 33, 38 of the Urban Planning Law; Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations; 15 of the Construction Law; 21 paragraph 2 and 23 of the Constitutive Law of A y A; 18 and 21 subsection 19 of the Regulation of the Community Aqueduct and Sewer System Administration Associations; 31 and 32 of the Regulation of Provision of Services to Clients; 1 and 11 of the Regulation for the Application of Article 38 of the Urban Planning Law in Aqueduct and Sewer Works of A y A, this Tribunal declares that what the plaintiff company requested from the Nombre25705 of Carrizal of Alajuela was a water availability seal, so that the Municipality of Alajuela would approve the plans for the real estate properties A-1210946-2007 and A-1208715-2007, and not a new potable water connection service; **8)** Now, if this Tribunal has proven that what the plaintiff company requested was a water availability seal, as a requirement for the Municipality of Alajuela to approve the cadastral plans corresponding to lots A-1210946-2007 and A-1208715-2007, consequently, the collection of the community contribution provided for in article 25 subsections 2.a) and 4) of the Regulation of the ASADAs, which the defendant Association imposed on the plaintiff company as a requirement for the granting of the water availability seal *(see folio 60 of the judicial file),* is illegitimate; **9)** It should be recalled that the connection of a new potable water and/or sewer service entails a cost that must be paid by the applicant when submitting the request with the requirements demanded by article 32 of the Regulation of Provision of Services to Clients of A y A. In the event that the system operating entity is an ASADA, each application for a new service shall be charged the cost of the community contribution, in those cases where the aqueduct and sanitary sewer systems were built with community participation *(article 3 of the Constitutive Law of A y A; subsection 4 of article 25 of the Regulation of the ASADAs)*, otherwise, the current rate for new services shall be charged *(article 3 of the Constitutive Law of A y A; subsection 2.a of article 25 of the Regulation of the ASADAs);* **10)** Therefore, the total payment of 900,000.00 colones (450,000.00 colones for each property) that the plaintiff company made on April fourth, two thousand eight, in favor of the Nombre25705 of Carrizal of Alajuela, for the concept of *“community contribution for water availability” (see folio 26 of the judicial file),* is contrary to the legal system, since in accordance with the provisions of articles 3 of the Constitutive Law of A y A, and 25 subsections 2.a) and 4 of the Regulation of the ASADAs, a rate or community contribution is charged for those cases where the connection of a new service is sought, and not for the granting of a water availability seal, given that there is no legal basis for said charge; **11)** In view of the above, the refund of said amount to the plaintiff company should have been proceeded with, especially taking into consideration that the Board of Directors of the Instituto Costarricense de Acueductos y Alcantarillados, through article 4 subsection a) adopted in session number 2009-011 of February seventeenth, two thousand nine *(see folio 287 of the judicial file),* approved the recommendations made in that regard by the General Audit Office of the Instituto Costarricense de Acueductos y Alcantarillados, in the official communications Placa27095 of October twenty-first, two thousand eight and Placa27097 of November twenty-first of the same year *(see folios 274 to 285 of the judicial file),* through which, it pronounced on the complaint for undue collection of the community contribution, filed by the plaintiff company and which was referred to it for its knowledge, by the Board of Directors of A y A, through agreement number 2008-249 adopted in ordinary session number 032-2008 of May twentieth, two thousand eight *(see folio 274 of the judicial file);* **12)** In this regard, furthermore and in accordance with the provisions of subsection k) of article 122 of the Administrative Contentious Procedure Code, this Tribunal considers that official communication number GG-2009-0125 of May thirteenth, two thousand nine, signed by the Nombre40256 General of the Instituto Costarricense de Acueductos y Alcantarillados *(see folios 165 to 168 of the judicial file),* is inconsistent with the legal system, for the following reasons: **12.a)** In accordance with the provisions of subsections j), k) and l) of article 11 of the Constitutive Law of A y A, the Board of Directors of that entity is competent to appoint and remove the Nombre99702 and the Manager; to assign them, within legal precepts, the powers and duties that correspond to those officials –in addition to those provided for in articles 12 and 13 of that same regulatory body–, and to hear on appeal the appeals filed against the resolutions of the Nombre40256 and the Nombre99702. In turn, subsection b) of article 14 of the cited law establishes that the Nombre99702 shall communicate to the Nombre40256 the irregularities or infractions observed in the operations and functioning of the Institute, and in the event that said official does not dictate within a reasonable period the measures indicated, shall present the situation to the Board of Directors, proposing such measures. Finally, article 15 of said law provides that the Nombre99702 shall report directly to the Board of Directors, before which his decisions shall be appealed; **12.b)** It has been accepted as an undisputed fact that on May thirteenth, two thousand eight, the plaintiff company filed a complaint before the Internal Audit Office of the Instituto Costarricense de Acueductos y Alcantarillados against the Asociación Administradora del Acueducto y Alcantarillado Sanitario de Carrizal de Alajuela, for alleged inconsistencies in the processing and collection of the request for water resource availability for two lots located in that community. That this same complaint was also filed before the Board of Directors of the Instituto Costarricense de Acueductos y Alcantarillados, which through agreement number 2008-249 adopted in ordinary session number 032-2008 of May twentieth, two thousand eight, ordered that this same complaint be referred to the Internal Audit Office for processing *(see folio 274 of the judicial file and audiovisual record of the preliminary hearing).* Likewise, that through official communication number Placa27095 of October twenty-first, two thousand eight, the Internal Audit Office of the Instituto Costarricense de Acueductos y Alcantarillados recommended that *\"...in the shortest time possible to the Company Nombre140629 Consultores GECCH S.A., the sum of ¢900,000.00 that it paid for community contribution be reimbursed, in order to prevent said situation from being aired in other instances, with the potential detriment to the ASADA...\"*, this because said Internal Audit Office considered that *\"...there is confusion on the part of the members of the Board of Directors of the ASADA, regarding the interpretation of the concept of request for water availability and the request for new service or connection right that has been made in this case...\"*, for which reason, *\"...this Internal Audit Office is of the opinion that the collection of the community contribution requested from the Company Nombre140629 Consultores GECCH S.A., as part of the water availability request procedure, is not appropriate, since the current regulations and the guidelines issued by A y A that regulate the matter do not contemplate it within the requirements demanded for said procedure...\" (see document from folio 274 to 280 of the judicial file).* That through official communication number Placa27097 of November twenty-first, two thousand eight, the Internal Audit Office of the Instituto Costarricense de Acueductos y Alcantarillados pronounced on the note sent by the Board of Directors of the ASADA, in which they requested that the criteria issued by that audit office be rectified regarding the charge made, in the sense that *\"...the recommendations made are not only maintained, but the need is emphasized to advise the Nombre25705 of Carrizal of Alajuela in a timely manner, on sensitive issues such as those we have dealt with...\" (see folios 284 to 285 of the judicial file).* Finally, that by article 4 subsection a) adopted as final, in ordinary session number 2009-011 of November seventeenth, two thousand eight, the Board of Directors of the Instituto Costarricense de Acueductos y Alcantarillados resolved *\"...to approve the recommendations indicated in Report Placa27095 with the observations made by the Subgerencia General and the Legal Directorate and as agreed upon through Agreement No. 2008-531...\" (see document on folio 287 of the judicial file);* **12.c)** By reason of the factual and legal elements set forth above, this Tribunal considers that if the Nombre99702 General reports directly to the Board of Directors of A y A, and consequently, the latter can assign to said official –within the legal precepts– the powers and duties that correspond to him, such that his decisions shall be appealable before the Board of Directors; it is contrary to the legal system that the Nombre40256 General of the defendant entity, through official communication number GG-2009-0125 of May thirteenth, two thousand nine, indicates *“...that the Asociación Administradora del Acueducto Rural de Carrizal de Alajuela should not refund the indicated money...”*, since he disagrees with the *“...official communication from the Audit Office in its recommendation 4-1, since said charges find their basis in the Regulation of Community Aqueduct and Sewer System Administration Associations (article 25)...”*. This is because, said decision implies reviewing and modifying not only what was resolved by the Nombre99702 General of A y A, despite the fact that this function corresponds to the Board of Directors of that entity, which is contrary to the provisions of article 129 of the General Law of the Public Administration, but also implies that the Nombre40256 General of A y A rendered without effect article 4 subsection a) adopted as final by the Board of Directors of that entity, in ordinary session number 2009-011 of November seventeenth, two thousand eight; **12.d)** In that sense, it is worth highlighting that the content of article 4 subsection a) adopted as final by the Board of Directors of A y A, in ordinary session number 2009-011 of November seventeenth, two thousand eight, implies a declaratory act of rights for the plaintiff company, since in that agreement the recommendations contained in audit report number Placa27095 of October twenty-first, two thousand eight, are approved, aimed at reimbursing the plaintiff company the sum of 900,000.00 for the community contribution it paid so that the Nombre25705 of Carrizal would grant it the water availability seal for lots A-1210946-2007 and A-1208715-2007. Now, this Tribunal has accepted as an unproven fact that, prior to the issuance of official communication GG-2009-0125 of May thirteenth, two thousand nine, by the General Management of the Instituto Costarricense de Acueductos y Alcantarillados, a hearing was granted to the plaintiff company regarding the content of said official communication, despite it being contrary to the provisions of the agreement adopted by the Board of Directors of the Instituto Costarricense de Acueductos y Alcantarillados, in ordinary session number 2009-011 of February seventeenth, two thousand nine *(see point d of Considerando III of this judgment).*\n\nThat such omission is contrary to the provisions of Articles 129, 173 and 183 subsection 3) of the General Public Administration Law and Article 34 of the Contentious-Administrative Procedure Code, not only because it was issued by an incompetent authority, but also because all the substantial procedures established for the annulment of an act declaratory of rights were not completed; **12.e)** In addition to the foregoing, this Court considers that official letter number GG-2009-0125 of May thirteenth, two thousand nine, issued by the General Management of the Instituto Costarricense de Acueductos y Alcantarillados, is also contrary to the provisions of Article 136 of the General Public Administration Law, since it does not substantiate the legal or technical reasons on which it bases the conclusion that the plaintiff company submitted a request for a new potable water service and not a request for a water availability certificate (sello de disponibilidad hídrica), which would therefore justify the collection of the community contribution (aporte comunal) in accordance with the provisions of Article 25 of the ASADAS Regulation. Note that although reference is made to a technical, administrative, and field verification analysis, the reasons are not indicated why it is taken as proven that the request submitted by the plaintiff corresponds to one for a new potable water service, and not for a water availability certificate *(see folios 165 to 167 of the judicial file)*, nor does the file contain evidence that copies of the technical reports or field visits referred to were attached; **12.f)** For all the foregoing reasons and in application of subsection k) of Article 122 of the Contentious-Administrative Procedure Code, this Court declares that official letter number GG-2009-0125 of May thirteenth, two thousand nine, issued by the General Management of the Instituto Costarricense de Acueductos y Alcantarillados, is contrary to the provisions of Articles 129, 136, 158, 166, 173 and 183 subsection 3) of the General Public Administration Law; 11 subsections j, k and l, 15 of the Constitutive Law of AyA; **13)** Consequently, and for all the foregoing reasons, this Court jointly and severally orders the Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados to reimburse the plaintiff company the sum of 900,000.00, for the community contribution that was improperly charged to grant the water availability certificates (sellos de disponibilidad hídrica) for the lots with cadastral plan number A-1210946-2007 and A-1208715-2007. Likewise, the Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados are jointly and severally ordered to pay the plaintiff interest on the sum of ¢900,000.00 colones, as financial loss (perjuicio financiero), following the parameters set forth below, which must be finalized in the sentence execution phase: **a)** Interest must be paid on the indicated sum, from April 4, 2008, the date on which the payment of the ¢900,000.00 was made, until its effective payment; **b)** Interest shall be calculated based on the passive interest rate of six-month certificates of the Banco Nacional de Costa Rica, according to the currency involved, as provided by Article 1163 of the Civil Code; **c)** Regarding the adjustment of the economic value of the obligation (indexation), a pronouncement which, in light of Article 123 of the Contentious-Administrative Procedure Code, is mandatory for this court, when the granting of interest as financial loss is ordered, as indicated, it is encompassed in this latter item.\n\n**VIIo.- ON THE CLAIM FOR DAMAGES RELATED TO THE EXPENSES FOR CARRYING OUT THE WORKS REQUIRED BY THE Nombre25705 OF CARRIZAL DE ALAJUELA, IN ORDER TO GRANT THE WATER AVAILABILITY CERTIFICATE FOR LOTS A-1210946-2007 and A-1208715-2007.** The plaintiff company requests that the defendants be jointly and severally ordered to pay 229,071.00 for the materials and labor used in the infrastructure that the Nombre25705 of Carrizal de Alajuela forced it to build on lots A-1210946-2007 and A-1208715-2007, prior to issuing the water availability certificates. This Court considers the following: **1)** It should be noted that in cases where a **permit to urbanize a plot of land** is requested, the approval of the construction plans by the Engineering Department of the competent Municipality, the Urbanism Directorate, and the Instituto Costarricense de Acueductos y Alcantarillados is essential *(Articles 38 of the Urban Planning Law; 21 paragraph 2 and 23 of the Constitutive Law of AyA; Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works).* In this scenario, what is granted is a **certification of availability of water and/or sanitary sewer services**, through which the existing potable water and/or public sewer services in the area are enabled. Said certification shall be issued by AyA or the Nombre25705, once the developer has executed all the works in accordance with current technical regulations and, the operating entity of the aqueduct and sewer service performs the respective technical tests, in order to receive the works and proceed with the connection and operation of the services *(see Articles 38 subsection a) of the Urban Planning Law 1 and 11 of the Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works; 18 of the ASADAS Regulation)*; **2)** In this case, this Court has taken as proven that the plaintiff company requested from the Nombre25705 of Carrizal de Alajuela two water availability certificates, so that the Municipality of Alajuela would endorse the plans for properties A-1210946-2007 and A-1208715-2007, and not a new potable water connection service *(see Considerando VI of this judgment).* Consequently, and given that the pending procedure before the Municipality of Alajuela was not the endorsement of construction plans – which has been taken as an unproven fact in point e of Considerando III of this judgment – but rather the municipal endorsement of the plans indicating the situation and capacity of lots number A-1210946-2007 and A-1208715-2007, as an indispensable requirement for any subdivision (fraccionamiento) of lands or properties located in urban sites and other areas subject to urban planning control, the provisions of Articles 38 of the Urban Planning Law; 18 of the ASADAS Regulation and the Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works were not applicable in this specific case by the defendant association. This is because they were not requesting the certification of availability of water and/or sanitary sewer services for the purposes of approval by the operator of the aqueduct and sewer service of construction plans for an urban development project, in which it was necessary to enable the existing potable water and/or public sewer services in the area in order to proceed with the connection and operation of those services; **3)** At this point, it should be clarified that while it is true that ASADAS can grant the water availability certificate provided three requirements are met, namely: there is technical viability and infrastructure and it will not result in detriment to the quality of the service *(see subsection 19 of Article 21 of the ASADAS Regulation),* this does not imply conditioning the granting of the water availability certificate on the prior execution by the landowner of the necessary infrastructure works to enable the potable water and sanitary sewer services. This assertion is based on two fundamental reasons: **3.a)** because in this case, the plaintiff company did not request the endorsement of construction plans, therefore, the provisions of Article 38 paragraph 2 of the Planning Law in relation to numerals 7 to 11 of the Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works would not apply; **3.b)** Because even in the event that, in accordance with the cited regulations, the developer or urbanizer is informed that the availability of potable water and/or sanitary sewer services does not exist under the conditions required by the project, **the owner may assume, at their own cost, the provision of the services in accordance with the terms and technical conditions determined by AyA or the ASADA** *(see Articles 38 paragraph 2 of the Urban Planning Law; 7 of the Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works*; *subsection 6 of Article 32 of the Regulation for the Provision of Services to AyA Clients)*. Consequently, the execution of works for the provision of potable water and sanitary sewer services in a given area, by virtue of these services being located outside the boundaries of the land to be urbanized, will depend on the urbanizer undertaking to assume – upon the rendering of a satisfactory guarantee – the cost thereof, in accordance with the provisions of Articles 38 paragraph 2 of the Urban Planning Law and 5 of the Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works); **4)** This Court has taken as proven that the plaintiff company carried out infrastructure works on lots number A-1210946-2007 and A-1208715-2007, as a requirement imposed by the Nombre25705 of Carrizal de Alajuela for the granting of the water availability certificates *(see folios 211 and 212 of the judicial file)*, despite the fact that this certificate does not have the purpose of enabling the potable water and sanitary sewer services existing in the area, in order to proceed with the connection and operation of those services, but only to guarantee the supply capacity of the area's aqueduct and sanitary sewer systems for a period of six months in the case of single-family homes or one year for other types of developments, which may be extended. This situation is aggravated because, even if the plaintiff company had requested the certification of availability of potable water and/or public sewer services for the purposes of having the construction plans approved, in accordance with the provisions of Articles 38 paragraph two of the Urban Planning Law; 5, 7 and 11 of the Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works, the property owner **may undertake before the managing and operating entity of those services, to assume at their own cost**, the infrastructure works required to enable the potable water and public sewer services. Consequently, and for all the foregoing reasons, this Court considers it to be contrary to law that the Nombre25705 of Carrizal de Alajuela imposed upon the plaintiff company, as a requirement for granting the water availability certificates, the execution of infrastructure works on lots number A-1210946-2007 and A-1208715-2007; **5)** While it is true that this Court has taken as proven that the Nombre25705 of Carrizal de Alajuela engaged in conduct contrary to the legal system, since: **a)** in contravention of the provisions of Articles 38 paragraph two of the Urban Planning Law; 5, 7 and 11 of the Regulation for the Application of Article 38 of the Urban Planning Law in AyA Aqueduct and Sewer Works; 21 subsection 19 of the ASADAS Regulation, it imposed upon the plaintiff company the execution of infrastructure works on lots number A-1210946-2007 and A-1208715-2007 as a requirement to grant it the water availability certificate for those two properties; and **b)** because in any case, said regulations were not applicable, since the plaintiff did not request the granting of the certification of availability of potable water and/or sanitary sewer services for the purposes of having the construction plans approved, but rather the water availability certificate for the municipal endorsement of the plans of the indicated lots; it is also true that the plaintiff did not demonstrate before this Court the material damages that – according to its statement – this situation allegedly caused it, a requirement that was necessary in accordance with the provisions of Articles 196 of the General Public Administration Law; 58 subsection c) and 82 of the Contentious-Administrative Procedure Code; 317 of the Civil Procedure Code and the ruling by the First Chamber of the Supreme Court of Justice in votes number 112-92, 606-02, among others. In that sense, material damage, having an impact on a person's patrimony, generates valuable economic consequences that must be demonstrated, as must objective moral damage, in which an extra-patrimonial right is injured with repercussions on the patrimony, and therefore, as it generates consequences valuable from an economic point of view, the corresponding demonstration must also be made as occurs with material or patrimonial damage. Notwithstanding the foregoing, the plaintiff did not fulfill these aspects, as it merely limited itself to indicating in section 7 of the claims the sum of 229,071.00 colones that it presumably incurred for the execution of the indicated infrastructure works, but it does not demonstrate what the material damages it claims to have suffered are *(folio 19 of the judicial file)*; **6)** In addition to the foregoing, the plaintiff also does not demonstrate the causal link between the unlawful conduct incurred by the Nombre25705 of Carrizal de Alajuela and the damages and losses that were presumably caused to it as a consequence thereof (Article 190 of the General Public Administration Law), especially considering that the company itself indicates in section 11 of the claims contained in the complaint filing brief that on May seventeenth and September fifth, both of two thousand eight, it sold the lots registered in the National Registry under real folio registration numbers Placa27089 (cadastral plan number Placa27090) and Placa27091 (cadastral plan number Placa27092), both located in District 03 (Carrizal), Canton 01 of the Province of Alajuela, and that this Court has taken as a proven fact that the Nombre25705 of Carrizal de Alajuela proceeded with the installation of potable water services in the two properties that were owned by the plaintiff company, who in turn carried out the sale of said lots *(this circumstance is evident from point 3 in fine of official letter number GG-2009-0125 of May thirteenth, two thousand nine, visible at folio 166 of the judicial file)*, which is why this Court considers that – in principle and given that there are no other evidentiary means to disprove it – the damages and losses claimed by the plaintiff company were not caused to it, not only because the Nombre25705 of Carrizal de Alajuela proceeded with the connection of the potable water service in the indicated lots – even though that was not what it requested – but because the plaintiff was able to sell said properties, which already had the potable water service connection enabled. For all the foregoing reasons, this Court deems the claim for damages inadmissible as presented by the plaintiff.\n\n**VIIIo.- ON THE CLAIM FOR REIMBURSEMENT OF THE AMOUNTS THAT THE PLAINTIFF COMPANY PAID FOR BREACH OF THE PROMISE OF PURCHASE AND SALE (PROMESA DE COMPRAVENTA) ON THE PROPERTY REGISTERED UNDER REAL FOLIO REGISTRATION NUMBER Placa27089 (CADASTRAL PLAN NUMBER A-1210946-20007).** The plaintiff company requests that the defendants be jointly and severally ordered to pay the sums of 500,000.00 and 600,000.00 colones, which it had to pay to Nombre140636, as a refund of the earnest money (arras) and as compensation, as a consequence of the contractual breach of the purchase option (opción de compraventa) it incurred, since on the expiration date of that contract – namely: March twenty-seventh, two thousand eight *(folio 299 of the judicial file)* – the Nombre25705 of Carrizal de Alajuela had not issued the requested water availability certificates for the property registered under real folio registration number Placa27089 (cadastral plan number Placa27090), the subject of that contract. This Court considers the following: **1)** It should be highlighted that in urban planning matters, the development of lands through their subdivision (fraccionamiento) or urbanization will be permitted provided that – among other requirements – the lots can have access to the indispensable services according to the characteristics of the area *(Article 32 of the Urban Planning Law and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations).* In accordance with the analysis carried out in Considerando V of this judgment and the provisions of Articles 32 to 36 of the Urban Planning Law; 21 subsection 19 of the ASADAS Regulation and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations; 15 of the Construction Law, the water availability certificate thus constitutes a requirement that must be met before the competent Municipality determines whether or not the endorsement of the property plans is appropriate, a requirement that is indispensable for the Public Registry to proceed with the registration of documents regarding subdivisions of properties located within urban districts *(Articles 32, 33, 34 and 35 of the Urban Planning Law)*; **2)** In that sense and in accordance with the provisions of Articles 33 to 35 of the Urban Planning Law, for any subdivision of lands or properties located in urban districts or other areas subject to urban planning control, it is indispensable for the Municipality to grant the endorsement (visado) to the plans indicating the situation and capacity of the resulting portions, since otherwise, subdivisions made by public or private document shall be ineffective if they lack the municipal endorsement on the pre-existence of the plan. By reason of the foregoing, the Public Registry shall suspend the registration of documents related to subdivisions that do not have the respective municipal endorsement, and therefore, the person who has acquired by purchase and sale or other onerous title a property or a real right over a property, and is harmed by said ineffectiveness of the acquisitive act, may demand its rescission and the corresponding civil reparation; **3)** While it is true that this Court has taken as proven that in the purchase option contract that the plaintiff company signed with Nombre140636, regarding the property registered under real folio registration number Placa27089 (cadastral plan number Placa27090), it is not indicated that the purchase of the property is for residential purposes, nor that the plaintiff company expressly undertook that the cadastral plan for said land would have the water availability certificate and the corresponding municipal endorsement *(see clauses 3 and 8 of the promise of purchase and sale at folios 298 to 300 of the judicial file);* it is also true that, in accordance with the provisions of Articles 32, 33, 34 and 35 of the Urban Planning Law, the lack of municipal endorsement of the plan indicating the situation and capacity of the land causes the ineffectiveness of the public or private documents recording the subdivision of the property; **4)** Notwithstanding the foregoing, it should be noted that from point f of clause eight of the purchase option contract signed by the plaintiff company, it is evident that the latter guarantees to the buyer, under oath and generically, that the property *\"...is free of liens, annotations, charges, encumbrances, claims, obligations, liabilities, conditions precedent or subsequent, third-party rights of any nature, without occupants in precarious or other conditions...\" (folios 300 and 301 of the judicial file).*\n\nIn that regard, this Tribunal considers it important to highlight, that on December twenty-seventh, two thousand seven, the plaintiff declared under oath that the property was free of all encumbrances; however, it was not until January twenty-third, two thousand eight, that she filed before the Nombre25705 of Carrizal de Alajuela the request for the granting of the water availability seal (sello de disponibilidad hídrica), since “...in order to complete the process of municipal approval (visado municipal) of lots in our name, the Municipality of Alajuela requires a clearance (visto bueno) from the area's water provider regarding water availability...” (folio 205 of the judicial file); 5) This implies that at the time the plaintiff signed the purchase option contract for the property with cadastral number A-1210946-20007, the plan approval (visado) procedure before the Municipality of Alajuela had not yet been completed, since the granting of the water availability seal had not even been requested from the Nombre25705 of Carrizal de Alajuela *(see folio 205 of the judicial file)*, despite both requirements –municipal approval of the plans (visado municipal de los planos) and the granting of the water availability seal– being essential to make the purchase option contract for that land effective, in accordance with the provisions of articles 32, 33, 34, and 35 of the Urban Planning Law (Ley de Planificación Urbana) and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations (Reglamento para el Control Nacional de Fraccionamientos y Urbanizaciones); 6) Consequently, and in application of the principle that no one may benefit from their own fraud, the plaintiff company cannot claim that the Nombre25705 of Carrizal de Alajuela, jointly and severally with the Instituto Costarricense de Acueductos y Alcantarillados, reimburse the sums of 500,000.00 and 600,000.00 colones, which it had to pay to Nombre140636 , as refund of the earnest money (arras) and compensation, as a result of the contractual breach incurred by it *(see folio 303 of the judicial file)*, since, although it is true that the Nombre25705 granted the availability seals until April 3, 2008, and the validity period of the purchase option expired on March 27 of that same year *(folio 299 of the judicial file)*, it is also true that it is contrary to law that the plaintiff company committed to selling a property whose plan had not yet been approved (visado) by the Municipality of Alajuela, despite having declared under oath that the property was free of any encumbrance, with the aggravating factor that on the date said contract was signed, the granting of the availability seals had not even been requested from the Nombre25705 of Carrizal de Alajuela; 7) For all the foregoing reasons, and contrary to what the plaintiff argues, this Tribunal does not deem it proven that the breach by the plaintiff company of the purchase-sale promise (promesa de compraventa) entered into with Nombre140636 , within the period provided in the third clause of said contract, occurred as a consequence of the Nombre25705 of Carrizal de Alajuela granting the water availability seal until April three, two thousand eight *(see point a of Considerando III of this judgment)*. For all the foregoing, this Tribunal deems the claim for reimbursement of the indicated sums, in the terms proposed by the plaintiff, to be inadmissible.\n\n \n\n**IX.- ON THE CLAIM FOR RECOGNITION OF LOST PROFITS (LUCRO CESANTE) FROM THE SALE OF LOTS A-1210946-2007 AND A-1208715-2007, AS A RESULT OF THE TIME THE Nombre25705 TOOK TO GRANT THE WATER AVAILABILITY SEALS.** Pursuant to the adjustment of claim number 11 made during the preliminary hearing (audiencia preliminar) of October fifteen, two thousand nine *(see minutes of the preliminary hearing on folio 338 verso of the judicial file and audiovisual record of that proceeding),* the plaintiff seeks recognition as lost profits, derived from the alleged unjustified delay of the Nombre25705 in granting the availability seals, the sum of 1,833,500.00 colones, which constitutes the total amount it failed to earn from February twenty-six, two thousand eight, the date on which, according to its statement, the Director of Rural Aqueducts of the A y A issued instructions to the Nombre25705 of Carrizal de Alajuela to grant the water availability seals; until May seventeen and September five, two thousand eight, dates on which it managed to sell lots A-1210946-2007 and A-1208715-2007. In that sense, this Tribunal considers that: 1) It should be noted that contrary to what the plaintiff argues, in the sense that the Nombre25705 has eight working days as a maximum period to resolve the request for granting the water availability seals that it processed via note of January twenty-three, two thousand eight *(see letter dated January 30, two thousand eight on folios 206 and 207 of the judicial file),* this collegiate body deems that based on the provisions of articles 37 and 38 of the ASADAS Regulation (Reglamento de las ASADAS), which refers to the General Law of Public Administration (Ley General de la Administración Pública) to regulate the procedures and resolution deadlines for petitions, requests, licenses, authorizations, approvals, complaints, and appeals filed before the ASADAS; the period to be applied in those cases where the granting of a water availability seal is requested is that provided in article 331, subsection 1) of the General Law of Public Administration, that is, one month from when the body or entity receives the request with all legal requirements; 2) For purposes of computing the period indicated above, it must be taken into consideration that in accordance with the provisions of article 21, subsection 19 of the ASADAS Regulation, the granting of the water availability seal is subject to verification by the Nombre25705 of three requirements: the existence of technical and infrastructure feasibility, and that it does not impair the quality of the service provided; 3) In attention to the above and in view of official letter number DAR-2007-0440 of February twenty-six, two thousand eight, it is evident that upon the inquiry raised by the Nombre25705 of Carrizal de Alajuela, the Director of Rural Aqueducts of the A y A, indicated that based on the conditions set forth in subsection 19 of article 21 of the ASADAS Regulation (the existence of technical and infrastructure feasibility, and that it does not impair the quality of the service provided), “...it is possible to grant the water resource availability letter (carta de disponibilidad de recurso hídrico) only for the two proposed lots (A-1210946-2007) and (A-1208715-2007)...” *(see folio 210 of the judicial file);* 4) In that sense and contrary to what the plaintiff states, the Director of Rural Aqueducts of the A y A did not order the Nombre25705 of Carrizal de Alajuela to grant the water availability seals requested by the plaintiff, since that decision depended on the technical studies that the defendant association had to carry out, in accordance with the provisions of article 21, subsection 19 of the ASADAS Regulation. Consequently, the date of that official letter cannot be taken as a parameter to establish a possible unjustified delay on the part of the Nombre25705 of Carrizal in granting the water availability seals, precisely because it had to carry out the technical studies to determine the feasibility of the request made; 5) For all the foregoing, this Tribunal considers that it is from when the entity operating the service has all the technical requirements, that the period to determine whether or not to grant the water availability seal will be computed, especially since that decision cannot be adopted to the detriment of the quality of the service provided. Of course, provided that an unjustified delay in the technical verification procedure of the required requirements is not attributable to the entity administering the potable water service; 6) For the reasons stated, and in application of the principles of reasonableness, proportionality, and proper functioning of public services, this Tribunal deems that –in principle– it is justified that the Nombre25705 of Carrizal de Alajuela, in official letter number ASADA-022-03-08 of March thirty- one, two thousand eight *(folio 217 of the judicial file)*, requested the plaintiff *“...to give us a longer period of time (sic) to study the situation comprehensively regarding the water resource because we have conduction problems due to the small diameter of the pipe in the area. We, as administrators, must ensure that the quantity and quality of the service does not impair (sic) other users (...) in order to expedite the availability of the water seal, we commit to contracting and managing the corresponding studies starting from March 28, 2008...”* This is because, this Tribunal has deemed it a fact not proven *(see point f of Considerando II of this judgment)* that the Nombre25705 of Carrizal de Alajuela incurred an unjustified delay in the technical verification of the requirements set forth in subsection 19 of article 21 of the ASADAS Regulation, at the time of processing the request made by the plaintiff for the granting of the water availability seals*;* 7) In that sense, even though the defendant granted the water availability seals three days after the issuance of official letter ASADA-022-03-08 of March thirty- one, two thousand eight, that is, on April three of the same year *(see folios 219 and 220 of the judicial file),* there is no evidence in the file that disproves that the granting of the water availability seals issued for lots A-1210946-2007 and A-1208715-2007 lack technical support, an aspect that not only is not the subject of this proceeding, but in addition, it must be taken into consideration that this Tribunal has deemed it proven that the Nombre25705 of Carrizal de Alajuela proceeded with the connection of the potable water service to the indicated lots –even though that was not what was requested–, and that the plaintiff was able to sell said properties after that date, given that they already had the potable water service connection enabled *(see point 6 of Considerando VII of this judgment)*; 8) Finally, this Tribunal again reiterates that it is contrary to law that the plaintiff intended to sell the lots with cadastral plan numbers A-1210946-2007 and A-1208715-2007, in contravention of the provisions of articles 32 to 35 of the Urban Planning Law; Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations; article 21, subsection 19 of the ASADAS Regulation, that is, before the municipal approval (visado municipal) of the cadastral plans indicating the area and situation of the lands subject to subdivision (fraccionamiento) was carried out and before the water availability seal was granted, as analyzed in Considerando VIII of this judgment; 9) For all the foregoing, this Tribunal deems that since there was no unjustified delay on the part of the Nombre25705 of Carrizal de Alajuela in processing the procedure initiated to determine whether, according to the technical verification, it was appropriate or not to grant the water availability seal, the compensation claim brought by the plaintiff is inadmissible.\n\n \n\n**X.- ON THE SUBSTANTIVE DEFENSES (EXCEPCIONES DE FONDO).** This Tribunal reaches the conclusion that the plaintiff has sufficient **active standing (legitimación activa)** to participate in this proceeding pursuant to article 10, subsection a) of the Contentious-Administrative Procedure Code (Código Procesal Contencioso Administrativo), since it was in her capacity as owner –as of April four, two thousand eight– of the lots with cadastral plan numbers A-1210946-2007 and A-1208715-2007, that she had to unduly pay the community contribution (aporte comunal), as one of the requirements to obtain the water availability seal. Furthermore, **the action is correctly directed against the Instituto Costarricense de Acueductos y Alcantarillados (A y A), and the Asociación Administradora del Acueducto y Alcantarillado Sanitario de Carrizal de Alajuela (ASADA),** just as provided in article 12, subsections 1) and 4), in relation to subsection e) of article 2, all of the aforementioned Code, given that the Nombre25705 of Carrizal de Alajuela unduly collected the community contribution provided in article 25 of the ASADAS Regulation, despite the fact that the plaintiff did not request a new potable water connection service, but rather the granting of a water availability seal, and because the General Manager (Nombre40256 General) of the A y A annulled a firm and declarative-of-rights ruling issued by the Board of Directors (Junta Directiva), in contravention of the legal system. On the other hand, **the interest remains current,** as long as the challenged conduct continues to have effects on the legal sphere of the plaintiff and requires a jurisdictional resolution to resolve it. Finally, this collegiate body finds that the defense of lack of right (excepción de falta de derecho) must be upheld, solely as to: a) For all stated in Considerando VI of this judgment, the compensation claim related to the expenses to carry out the works required by the Nombre25705 of Carrizal de Alajuela, in order to grant the water availability seal for lots A-1210946-2007 and Placa27092, is inadmissible, since the plaintiff did not prove the existence of material damages and the causal link, in accordance with the provisions of articles 190 and 196 of the General Law of Public Administration; b) That for all stated in Considerando VII of this judgment, the claim for reimbursement of the amounts that the plaintiff company paid due to breach of the purchase-sale promise (promesa de compraventa) concerning the property registered under real estate folio number 2-432932-000 (cadastral plan number a-1210946-20007) is inadmissible, as it is contrary to the provisions of articles 32 to 36 of the Urban Planning Law; 21 subsection 19 of the ASADAS Regulation and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations, and to the principles of contractual good faith and that no one may benefit from their own fraud; c) That for all stated in Considerando VIII of this judgment, the claim for recognition of what it allegedly failed to earn from the sale of the lots, as a result of the time the Nombre25705 took to grant the water availability seals, is inadmissible, since there being no unjustified delay on the part of the Nombre25705 of Carrizal de Alajuela in processing the procedure initiated to determine whether, according to the technical verification, it was appropriate or not to grant the water availability seal, the compensation sought by the plaintiff lacks basis. Consequently, **the defense of lack of right is rejected** regarding the following aspects: 1) For what was stated in Considerando V of this judgment, this Tribunal orders the Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados, jointly and severally, to reimburse the plaintiff company the sum of 900,000.00, for the community contribution that was unduly charged to grant the water availability seals on the lots with cadastral plan number A-1210946-2007 and A-1208715-2007. 2) Likewise, the Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados are jointly and severally ordered to pay the plaintiff interest on the sum of ¢900,000.00 colones, as financial harm (perjuicio financiero), following the parameters set forth below, which must be specified in the sentence execution phase: a) The interest must be paid on the indicated sum, from April 4, 2008, the date on which the payment of the ¢900,000.00 was made, until its effective payment; b) The interest will be calculated based on the passive interest rate for six-month term certificates of the Banco Nacional de Costa Rica, according to the relevant currency, as provided in article 1163 of the Civil Code (Código Civil); c) Regarding the adjustment of the economic value of the obligation (indexation), a pronouncement that, in light of ordinal 123 of the Contentious-Administrative Procedure Code, is ex officio for this tribunal, by ordering the granting of interest, as financial harm, as indicated, it is comprised within this latter item; 3) That in application of subsection k) of article 122 of the Contentious-Administrative Procedure Code, this Tribunal declares that official letter number GG-2009-0125 of May thirteen, two thousand nine, issued by the General Management (Gerencia General) of the Instituto Costarricense de Acueductos y Alcantarillados, is contrary to the provisions of articles 129, 136, 158, 166, 173, and 183 subsection 3) of the General Law of Public Administration; 11 subsections j, k, and l, 15 of the Constitutive Law of the A y A (Ley Constitutiva del A y A).\n\n \n\n**XI.- ON COSTS (COSTAS).** In accordance with numeral 193 of the Contentious-Administrative Procedure Code, procedural and personal costs (costas procesales y personales) constitute a burden imposed on the losing party by virtue of being so. The exemption from this condemnation is only viable when, in the Tribunal's judgment, there was sufficient reason to litigate, or when the judgment is handed down by virtue of evidence whose existence was unknown to the opposing party. In the present case, this Tribunal considers that the parties have had sufficient reason to litigate; consequently, they are exonerated from the payment of personal and procedural costs of this proceeding. \n\n \n\n**POR TANTO.**\n\nThe defenses of lack of active and passive standing, and lack of current interest, are rejected. **The defense of lack of right is upheld, solely** as to: a) The compensation claim related to the expenses to carry out the works required by the Nombre25705 of Carrizal de Alajuela, in order to grant the water availability seal for lots Placa27094 and Placa27092, is inadmissible, since the plaintiff did not prove the existence of material damages and the causal link, in accordance with the provisions of articles 190 and 196 of the General Law of Public Administration; b) The claim for reimbursement of the amounts that the plaintiff company paid due to breach of the purchase-sale promise concerning the property registered under real estate folio number Placa27089 (cadastral plan number a-1210946-20007) is contrary to the provisions of articles 32 to 36 of the Urban Planning Law; 21 subsection 19 of the ASADAS Regulation and Chapter I.5 of the Regulation for the National Control of Subdivisions and Urbanizations, and to the principles of contractual good faith and that no one may benefit from their own fraud; c) That since there was no unjustified delay on the part of the Nombre25705 of Carrizal de Alajuela in processing the procedure initiated to determine whether, according to the technical verification, it was appropriate or not to grant the water availability seal, the claim for recognition of what it allegedly failed to earn from the sale of the lots, as a result of the time the Nombre25705 took to grant the water availability seals, lacks basis. Consequently, **the defense of lack of right is rejected in the other aspects and the lawsuit is partially granted** filed by Nombre140629 Consultores GECCH S.A. against the Asociación Administradora del Acueducto y Alcantarillado Sanitario de Carrizal de Alajuela (ASADA) and the Instituto Costarricense de Acueductos y Alcantarillados (A y A), in the following terms, being understood as denied in what is not expressly indicated: 1) The Nombre25705 of Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados are jointly and severally ordered to reimburse the plaintiff company the sum of 900,000.00 colones, for the community contribution that was unduly charged to grant the water availability seals on the lots with cadastral plan number A-1210946-2007 and A-1208715-2007.\n\n**2)** The Nombre25705 de Carrizal de Alajuela and the Instituto Costarricense de Acueductos y Alcantarillados are jointly and severally ordered to pay the plaintiff interest on the sum of ¢900,000.00 colones, as financial loss (perjuicio financiero), following the parameters set forth below, which shall be executed in the judgment enforcement phase: **a)** Interest shall be paid on the indicated sum, from April 4, 2008, the date on which the payment of the ¢900,000.00 was made, until its effective payment; **b)** Interest shall be calculated based on the passive interest rate for six-month certificates of the Banco Nacional de Costa Rica, according to the currency in question, as provided in Article 1163 of the Civil Code (Código Civil); **c)** Regarding the adjustment of the economic value of the obligation (indexation), a pronouncement that, in light of Article 123 of the Contentious-Administrative Procedure Code (Código Procesal Contencioso Administrativo), is a matter for this tribunal to address on its own motion, since the awarding of interest as financial loss (perjuicio financiero), as indicated, is encompassed within this latter category; **3)** In application of subsection k) of Article 122 of the Contentious-Administrative Procedure Code (Código Procesal Contencioso Administrativo), it is declared that official letter number GG-2009-0125 of May thirteenth, two thousand nine, issued by the General Management of the Instituto Costarricense de Acueductos y Alcantarillados, is contrary to the provisions of Articles 129, 136, 158, 166, 173 and 183 subsection 3) of the General Law of Public Administration (Ley General de la Administración Pública); 11 subsections j, k and l, 15 of the Constitutive Law of the AyA (Ley Constitutiva del A y A); **4)** The parties are exempted from the payment of both sets of costs, in accordance with Article 193 subsection b) of the Contentious-Administrative Procedure Code (Código Procesal Contencioso Administrativo).\n\n\n\n**Nombre140632** \n\n\n\n**José Roberto Garita Navarro**\n\n**Otto González Vílchez**\n\nEXPEDIENTE: 09-000845-1027-CA\n\nPROCESO DE CONOCIMIENTO DECLARADO DE PURO DERECHO\n\nACTORA: Nombre140629 CONSULTORES GECCH S.A.\n\nDEMANDADO: ASOCIACIÓN ADMINISTRADORA DEL ACUEDUCTO Y ALCANTARILLADO SANITARIO DE CARRIZAL DE ALAJUELA Y OTRO" }