III.- Facts not demonstrated. Of relevance for this judgment are the following: 1) That the questioned administrative conduct produced damages to the plaintiffs that they do not have a duty to bear.
IV.- Purpose of the process. Having analyzed the allegations of the parties involved in this process, the claims were fixed as follows: \"CLAIM FOR ANNULMENT. Based on the factual and legal arguments set forth, this representation requests that the present claim be granted and that the nullity of the following administrative acts be declared: 1.- Nullity of the following habiliation certificates issued by the Consejo de Atención Integral to Mrs. Nombre138954 for the operation of the establishment named Guardería Angelitos: -Habiliation Certificate CAI-2142 granted through Agreement number 07-23-2011, Agreement number 47--03-2013 and Agreement number 22-24-2013. -Official letter number CAI-0216-2014 of September 25, 2014, issued by the Consejo de Atención Integral of the Ministry of Health that resolved the motion for nullity filed by Nombre138953 . -Resolution number DM-A-1275-15 of February 16, 2015, of the Ministry of Health that resolved the appeal against official letter CAI-216-2014 and exhausted the administrative remedies. 2.- Nullity of Resolution Number DARSAZ-RHN-1157-2014 of September 8, 2014, of the Área de Salud of Aguas Zarcas, which rejected the operating permit for the Aguas Zarcas Service Station requested by Nombre26931, as well as all acts that confirm it: -Resolution number DM-A-1280-15 of March 4, 2015. 3.- As a consequence of the foregoing, it is requested that the closure of the Daycare be ordered. CLAIM FOR DAMAGES It is requested that the State be ordered in the abstract to pay the damages caused to Nombre138953 and to Nombre26931 Petróleo Costa Rica S.A., amounts that will be proven in the Judgment Execution phase. The damages sought to be compensated are as follows: -The amount of rent that, according to the lease agreement, Nombre138953 was to receive from September 9, 2014, until the moment the Station opens, and which is ¢1,500,000.00 colones monthly. As of March 1, 2016, that amount is ¢26,550,000.00 . -Interest calculated at the legal rate of the Banco Nacional in accordance with Article 1163 of the Civil Code, on the sums that Nombre138953 should have received monthly from September 9, 2014, until the date the Station opens. As of March 1, 2015, that amount is ¢1,256,080.78 colones calculated in accordance with Article 1163 of the Civil Code. (See calculation table in virtual file on (p. 37 of original claim). Claim for Amendment of Claim The following claims are added to the filed claim: In the claim for annulment, we also request the annulment of the agreement of the Consejo de Atención Integral of the Ministry of Health of March 4, 2016, through which habiliation certificate CAI-86-2016 was granted and which was notified to Guardería Los Angelitos on April 22, 2016, through official letter CAI-009-2016.\" For these purposes, an analysis is subsequently entered into regarding the positions upon which the plaintiffs base their requests, weighing the allegations of each of the parties both in the various briefs, as well as in the oral statements made during the closing arguments space within the preliminary hearing.
V.- Regarding the defense of expiration of the action. The State raised the defense of expiration of the action, considering that in accordance with the jurisprudence that informs Article 39.1 of the CPCA, the expiration period runs from the day following the communication of the contested act, regardless of whether administrative appeals have been filed against that act. Thus, if one year elapses from the communication of the act deemed harmful, any claim filed to challenge the validity of that act, as well as to accessorily request payment of damages, would be time-barred. In the preliminary hearing of March 28, 2017, said defense was reserved to be addressed in the judgment. Having assessed the positions of the parties, this panel considers that the defense must be dismissed. In the opinion of this Court, although Article 39.1, subsection a) of the CPCA establishes that the maximum period to initiate the proceeding, in the case of claims for annulment, is one year from the day following the notification of the act—when it is one that must be communicated by that means—a preclusion governed by the expiration of the action, as opposed to claims for damages, whose temporal margin is subject to the statute of limitations, as per Article 41 of the same body of law, the truth of the matter is that when the administered party chooses to exercise the ordinary appeals that are applicable against the final act issued by the Administration (exhaust administrative remedies), that fatal term must be computed from the day after the notification of the definitive act. The foregoing, since it is only at that moment that the administered party has final knowledge and certainty of the result of their optional exercise of appeals, except for the cases indicated in Article 31.1 of the CPCA and what was set forth in vote 3669-2006 of the Constitutional Chamber. From that standpoint, when the administered party opts for such exhaustion, and the act resolving the filed appeals is confirmatory of the questioned act, in accordance with Article 33 of the CPCA, the annulment action may well be directed, indistinctly, against the act that is the object of the appeal (the final act), against the one that expressly resolves the ordinary appeal (definitive act), or by negative silence, or against both simultaneously. The foregoing, unless the act deciding the appeal reforms the appealed act, since in that hypothesis, by logical order, the claim must be brought against the definitive act. In such a case, when that possibility is exercised, once the administrative remedies are exhausted, whether by issuance of an express act, or when negative silence operates (see Arts. Placa25235, 31.6 CPCA), the period to judicially challenge those conducts is one year from the communication of the definitive act, and not from the communication of the final act, insofar as the latter was administratively challenged. This is indeed inferred from Article 31.7 of the CPCA, a norm that clearly states \"If the appeal (referring to the administrative one) is expressly resolved, the period to file the claim shall be counted from the day following the respective notification\".
\n\nIt is evident that the rule refers to the notification of the act that resolves the appeal, and not of the final act challenged, such that a harmonious interpretation of the indicated provisions (31.6, 31.7, 33, and 39.1.a of the CPCA) leads this Court to conclude that when one opts for that exhaustion of administrative remedies, the period to file the lawsuit, and therefore the analysis of the expiry of the action, must be calculated from the day after the communication of the act that orders the rejection of the ordinary appeals, whether one chooses to challenge only the final act, the definitive act, or both at the same time, with the exception already noted as indicated in subsection 2 of the cited numeral 33 of the CPCA. Otherwise, the filing of said administrative appeals would be of no use whatsoever, becoming a burden and disadvantage for the recipient of public conduct. Certainly, in light of Article 148 of the LGAP, the filing of appeals does not suspend the effects and execution of the final act, from which it can be said that this act attains finality, i.e., it is capable of producing effects and impacting the legal spheres of its recipients; however, that does not mean that when one chooses to question that conduct administratively (the execution of which may be suspended when deemed appropriate by the competent public official), the expiry period of the action runs from the adoption and notification of said act, because as has been pointed out, in such cases (when challenged), the permanence or not of the act has not been defined at that venue. If it were so, the administered party would be subjected to the imperative need to resort to the judicial venue to refute an act that is ablatitious of their rights or legitimate interests, even when they have filed ordinary administrative appeals (recursos ordinarios) before the internal venue as assigned by law in each specific case, with the burdens that this may entail, due to the requirements and particularities of access to this jurisdiction. This has even been stated by other sections of this Court, among others, in judgment No. 63-2017-V of Section V, which on the subject stated: \"IV.- ON THE EXCEPTION OF EXPIRY RAISED BY THE DEFENDANT AND THE PASSIVE COADJUVANT. This Court considers that in the instant case, expiry has not occurred for the reasons set forth below: i) Although the criterion contained in judgments number 65-F-TC-2015, 116-A-S1-2015, and 122-F-TC-2015 issued by the Tribunal de Casación de lo Contencioso Administrativo y Civil de Hacienda appears to tend toward giving preeminence to the optional exhaustion of administrative remedies (agotamiento facultativo de la vía administrativa), as a way of facilitating the administered party's access to prompt and complete justice; it is also true that the isolated application of the provisions of Article 39, subsection 1, sub-subsection a of the Código Procesal Contencioso Administrativo (CPCA) proposed in those pronouncements not only implies ignoring the provisions of subsections 6 and 7 of Article 31 in relation to numeral 33 of that same regulatory body, but also restricts the effective exercise of the fundamental rights it seeks to protect. ii) In that regard, the previously cited numerals of the CPCA contemplate three scenarios for accessing the administrative litigation jurisdiction -without prejudice to the two cases in which, according to the interpretation of constitutional jurisprudence of Articles 182 and 173 of the Constitución Política, exhaustion is \"mandatory\"; as well as conducts with continued effects, scenarios that will not be the object of this analysis-, namely: ii.a) Once the final act is notified, file the lawsuit without exhausting administrative remedies, a scenario in which the 1-year period provided for in numeral 39 of the CPCA will run from the communication of the formal conduct; ii.b) If the interested party decides to exhaust administrative remedies, once the month provided for in Articles 261, subsection 2) of the Ley General de la Administración Pública (LGAP) and 31, subsection 6) of the CPCA has elapsed, they may deem the ordinary appeal denied and file the lawsuit, for which they will have one year counted from the day following the date on which the one-month period for the Administration to expressly resolve the filed appeal or appeals expired (subsection 6 of numeral 31 of the CPCA); ii.c) If the interested party decides to wait for the competent authority to expressly resolve the appeal -to which it is in any case obligated pursuant to the provisions of numerals 329 and 127 of the LGAP-, the period to file the lawsuit shall be counted from the day following the notification of the act by which the Administration expressly resolved the appeal (subsection 7 of Article 31 of the CPCA), which is consistent with the provisions of numeral 39, subsection 1) sub-subsection a) of the CPCA, given that when the challenged act must be notified, the period to file the lawsuit shall be counted from the day following the notification. iii) Consequently, it is not that the filing of administrative appeals has the virtue of interrupting or suspending the expiry period, since those figures are not applicable to it; simply, and in accordance with the provisions of Articles 31 subsections 6 and 7, 33, and 39 subsection 1) sub-subsection a) of the CPCA; 127, 261.2, and 329 of the LGAP, the expiry period will begin to be calculated depending on the option validly chosen by the administered party, based on the powers granted to them for that purpose by the legal system: iii.a) When they decide not to exhaust administrative remedies , from the notification of the final act (Article 140 of the LGAP), which does not prevent the facts and claims of the lawsuit from being expanded if the appeal is subsequently resolved negatively, either expressly or by silence; iii.b) If they opt for exhaustion of remedies, to deem the appeals dismissed one month after they were filed, a point from which the year to file the lawsuit is counted (Article 261.2 of the LGAP and 31.6 of the CPCA); iii.c) If the appeal is resolved expressly -to which the competent entity or body is obligated -, the expiry period shall be counted from the day following the notification of the act (Article 140 of the LGAP). iv) This Court considers that holding the contrary renders nugatory the right of action of the administered parties and the guarantee of access to justice in strict accordance with the laws, thus disregarding the power granted to them by the legal system to challenge before the administrative venue the conducts they deem contrary to law, and for the Administration to resolve them expressly and with reasons, without that optional exercise having the virtue of limiting or restricting their right of action and access to justice in the administrative litigation venue, in the terms provided for in numerals 41 in fine of the Constitución Política; 8 subsections 1 in fine and 2 sub-subsection h) of the Convención Americana sobre Derechos Humanos; 31 subsections 6) and 7), 33, 39 subsection 1) sub-subsection a) of the CPCA, 127, 261 subsection 2), 329 of the LGAP. For the foregoing reasons, this Court, in application of the principles of judicial independence (Article 154 of the Constitución Política); normative hierarchy (Article 6 of the LGAP and 8 subsection 1 of the Ley Orgánica del Poder Judicial); legality (Articles 11 of the Constitución Política and 11 subsection 1) of the LGAP); effective judicial protection (Articles 8 subsection 1 of the Convención Americana sobre Derechos Humanos; 41 of the Constitución Política) and justice (Article 16 subsection 1 of the LGAP), departs from the criterion contained in judgments number 65-F-TC-2015, 116-A-S1-2015, and 122-F-TC-2015 issued by the Tribunal de Casación de lo Contencioso Administrativo y Civil de Hacienda, on which the representative of the passive coadjuvant bases the appropriateness of the defense of expiry.(...)\". These considerations are fully shared by this Court. In the instant case, the final conducts being challenged were appealed before the administrative venue. From the analysis of the case file, it is clear that the present action was filed within the year following the conducts that resolved those appeals filed, which detracts from the merit of the defense of expiry invoked. Indeed, from the analysis of the file, it is clear that although the nullity of the enabling certificate (certificado de habilitación) CAI-2142, granted by the Ministry of Health in agreement 07-23-2001, agreement 47-03-2013, and agreement 22-24-2013, is requested, as well as of resolution DARSAZ-RHN-1157-2014 of September 8, 2014, from the Área de Salud de Aguas Zarcas, the truth of the matter is that those conducts were challenged before the administrative venue, as a result of which, with respect to said certificates, the challenges were dismissed by resolution No. DM-A-1275-15 of February 16, 2015, communicated on March 4, 2015, while regarding the denial of the operating permit (permiso de funcionamiento), the challenge measures were resolved by act DM-A-1280-15 of March 4, 2015, notified that same day. For its part, this lawsuit was filed on March 2, 2016, i.e., prior to the expiration of the year referred to in the aforementioned Article 39.1 of the CPCA. Consequently, the rejection of the defense of the expiry of the action is ordered.VI.- On the merits of the debated matter. At its core, the present lawsuit is filed so that this Court orders the nullity of the enabling certificates (certificados de habilitación) that the Consejo de Atención Integral granted to Señora Nombre138954 for the operation of the establishment called Angelitos Guardería, as well as of Official Letter Placa26291 of September 25, 2014, issued by the Consejo de Atención Integral of the Ministry of Health, which resolved the nullity incident (Incidente de nulidad) presented by the plaintiff; of Resolution DM-A-1275-15, of February 16, 2015, of the Ministry of Health, which resolved the appeal (recurso de apelación) against act CAI-0216-2014 of reference; of Resolution No. DARSAZ-RHN-1157-2014, of September 8, 2014, of the Área de Salud de Aguas Zarcas, which denied the operating permit (permiso de funcionamiento) for the Estación de Servicio Aguas Zarcas requested by Nombre26931; and of Resolution No. DM-A-1280-15, of March 4, 2015, of the Ministry of Health, which resolved the appeal for review (recurso de revisión) and the nullity incident (Incidente de Nulidad). Likewise, as a derivation of those alleged pathologies, it requests that the closure of the Centro de Atención Integral Angelitos Guardería be ordered and that it be compensated in the amount of ¢Placa26292 for what it considers to be the damages caused by the State to the company Nombre138953 , as well as those caused to the company Nombre26931 Petróleo for lost profits plus interest. Finally, it seeks for the Ministry of Health to be ordered to issue the operating permit (permiso de funcionamiento) for the operation of the Estación de Servicio Aguas Zarcas. For the purposes of addressing these claims, after the extensive list of proven facts that were set forth in the first part of the reasoning section of this judgment, it is necessary to be clear that in this case, it has been proven that the Estación de Servicio Aguas Zarcas had been operating for a long time, to the extent that the respective enabling title had been granted through official letter CS-022-77 of March 7, 1977. However, on November 30, 2005, by virtue of a complaint processing procedure filed on that same date, the Environmental Protection Unit (Unidad Protección al Ambiente) of the Ministry of Health ordered the closure of the commercial premises called Servicentro Aguas Zarcas S.A., stating: \"The foregoing due to a fuel leak event that occurred, which motivated a series of administrative measures for the purpose of preventing damage to the health of the population and the environment, including the closure of the establishment. For which it was appropriate to place on: THE MAIN SIDES OF THE CONSTRUCTION the respective seals, which bear the legend \"CLAUSURADO\" (CLOSED), Ministry of Health. (...)\". (Folios 26, 40-41 of administrative file A-028) As a result of those events, by act No. R-DGTCC-723-2005 at 3:00 p.m. on December 13, 2005, the Dirección General de Transporte y Comercialización de Combustibles of MINAE (hereinafter DGTCC), ordered the Refinadora Costarricense de Petróleo, Commercial Relations Department, to suspend the sale of hydrocarbon derivatives to Servicentro Aguas Zarcas, while noting that the premises did not have a sanitary operating permit (permiso sanitario de funcionamiento), nor the environmental viability (viabilidad ambiental) granted by SETENA, and also did not comply with the regulations of Decreto Ejecutivo 30131-MINAE-S. By official letter DGTCC-1924 of December 9, 2005, from the DGTCC, Servicentro Aguas Zarcas is notified of the result of report DGTCC-INF-04-12-05 from the Department of Engineering and Oversight, regarding the inspection carried out at Servicentro Aguas Zarcas, in which it is concluded that said station did not comply with the provisions of Decreto MINAE-30131, making it necessary to retrofit the station, in addition to providing the technical data sheets of the storage tanks to verify their age, and in the event that (as of that date) they had been in operation for more than 20 years, it was deemed necessary to replace them, highlighting that according to the information gathered, the regular gasoline and diesel tanks had already exceeded that term. Through official letter DGTCC-878-06 of July 17, 2006, the DGTCC indicates that the useful life of the tanks had expired, making it necessary to replace them, upon prior submission of the Environmental Viability (Viabilidad Ambiental) of the project and compliance with all the requirements indicated in Decreto Ejecutivo 30.131-MINAE-S. Through official letter ARAZ-UPAH-IT-578-2007 of the 11th, 2007, from the Environmental Protection Unit (Unidad de Protección al Ambiente) of the Ministry of Health, it notifies the Director of the Health Area about the inspection carried out on that same date on the remodeling being carried out at Servicentro Aguas Zarcas. By resolution R-DGTCC-642-2007-MINAE of September 11, 2007, the DGTCC ordered the approval of the remodeling plans for the station, setting a one-year period to complete the works, after which, if the works were not finished, it had to request the resealing of the plans. On September 26, 2007, Nombre138953 . submits to the Environmental Protection Unit (Unidad de Protección al Ambiente), Huetar Norte Region, an application for a construction permit (permiso para construcciones) for the remodeling of a service station. Through official letter ARAZ-UPAH-IT-692-2007 of October 25, 2007, from the Environmental Protection Unit (Unidad de Protección al Ambiente), an assessment report is issued regarding the location permit (permiso de ubicación) application for a service station activity submitted by Nombre138953 ., indicating that the approval is denied until the doubts set forth in this report are clarified, among which is specifying the type of project, since in the Ministry's opinion it is not considered a remodeling. Subsequently, by official letter MS-RHN-DARAZ-563-2007 of October 25, 2007, the Área Rectora Aguas Zarcas ordered the denial of the location approval (visto bueno de ubicación) for the activity requested by Nombre138953 ., until the doubts set forth in technical report ARAZ-UPAH-IT-692-2007 of October 25, 2007, from the Environmental Protection Unit (Unidad de Protección al Ambiente) were clarified. By official letter DARSAZ-RHN-048-2008 of January 31, 2008, the Área Rectora de Aguas Zarcas maintained the criterion of denying the location approval (visto bueno de ubicación) for the service station remodeling activity application submitted by Nombre138953 ., considering that it required an environmental impact assessment (Evaluación de Impacto Ambiental). The appeals filed against that formal conduct were denied (proven fact 37). Through official letter MS-RHN-ARSAZ-URS-432-2008 of June 3, 2008, the Environmental Protection Unit (Unidad de Protección al Ambiente) informs the Director of the Área de Salud Aguas Zarcas that on the lot where the Estación de Servicio of Nombre138953 . was located, earthworks (movimientos de tierra) and demolitions were carried out; no constructions in progress, such as storage of materials or construction, are observed; the environmental viability (viabilidad ambiental) from SETENA has not been submitted, therefore they do not possess a construction permit (permiso de construcción), and the rejected construction plans, which have not been withdrawn, are still at the office. By resolution No. 2008-2008-SETENA at 11:00 a.m. on July 10, 2008, regarding the \"Proyecto Remodelación Servicentro Aguas Zarcas, case file No. D1-0703-2008-SETENA\", that administrative authority, in point five of the operative part, granted the environmental viability (viabilidad ambiental) to the remodeling project of Servicentro Aguas Zarcas, opening the Environmental Management stage, specifying that the validity of that viability was for two years. On August 8, 2008, the Área Rectora de Salud de Aguas Zarcas issued location permit (permiso de ubicación) No. MS-RHN-ARSAZ-PU-115-2008 for the service station remodeling activity, property of Nombre138953 ., cadastre plan A-30631-77. That act indicates that the conditions under which the permit is granted were set forth in resolution MS-RHN-ARSAZ-URS-625-2008 of August 6, 2008, the latter in which it is indicated, among the evaluated aspects, that it is a commercial zone that complies with distances established by law regarding surface water sources (fuentes de agua superficial), does not present risks regarding landslides, or floods. Given the foregoing, on March 6, 2008, the Municipalidad de San Carlos issued in favor of Nombre138953 . construction permit (permiso de construcción) number Placa26289 with an (apparent) expiration date of March 2010. On December 17, 2008, the Huetar Norte Region of the Ministry of Health, through official letter URS-RHN-336-2008, approved the construction plans for the remodeling and expansion of the Estación de Servicio. On May 20, 2009, the works began, as shown in the technical site visit record No. 62550, signed by the execution manager.\n\n(Image 2432 of the file) Despite the start of the works, as indicated by the plaintiffs themselves, the works were abandoned or suspended, which is considered proven by the last record of actions in the construction logbook, dated November 10, 2009, and stating that during the visit made that day, it was noted that construction was stopped, the fuel tanks had been placed and completely covered with sand, and the flexible piping from the tank area to the islands had also been placed. It was recorded that the guard had indicated that construction would surely not resume until the year following that date. (Image 2442 of the file) However, it was not until August 3, 2011, that, through official letter P077-2011, Nombre138953 informed the DGTCC that it would restart construction activities, noting that the reason for the delay was purely economic. In response, through resolutions R-DGTCC-610-2011-MINAET at 8:00 a.m. on August 10, 2011, and R-702-2011-DGTCC-MINAET of September 16, 2011, the DGTCC ordered Nombre138953 to carry out the re-stamping (resello) procedure for construction plans, which was processed through official letter P-064-2013 on February 28, 2013, by Nombre138953. Ultimately, through official letter DGTCC-AI-30-03-13 of March 7, 2013, the Dirección General de Hidrocarburo recommended granting the re-stamping of the construction plans for the remodeling and completion of the works for the Aguas Zarcas Service Station project, warning that any omission in the plans must comply with the provisions of Decreto 30131-MINAE-S, while also clarifying that the granting of said plan approval did not exclude the approval of permits from other corresponding entities.\n\nThrough official letter SG-ASA-0303-2014 of March 17, 2014, SETENA indicated to the Área Rectora de Aguas Zarcas that the remodeling project for the service station in Aguas Zarcas has an environmental feasibility license (licencia de viabilidad ambiental) through resolution 2008-2008-SETENA of July 10, 2008, which did not imply a right to obtain the respective operating permit. That same official letter stated that it was not necessary to obtain environmental feasibility for the Angelitos Daycare, unless it has the characteristics indicated in Article 17 of the Ley Orgánica del Ambiente. As inferred from inspection report No. 62550 of April 18, 2014, as of that date the works were 100% completed, as a result of which, on June 2, 2014, through application number 290-2014, Nombre138953, in her capacity as owner of the Property, applied before the Área Rectora de Salud de Aguas Zarcas de San Carlos for the sanitary operating permit (permiso sanitario de funcionamiento) for the Station. Through official letter MS-RHN-ARSAZ-ERS-824-2014 of June 18, 2014, an inspection and technical assessment report on the physical-sanitary and safety conditions of the Aguas Zarcas Service Station of Nombre138953 is rendered, addressed to the Dirección del Área Rectora Aguas Zarcas, in which a series of non-conformities are presented, based on which it is recommended: \"...considering the risk, primarily to such a vulnerable population as minors, whose health and safety the state is responsible for safeguarding, it is recommended to deny the application process for the Sanitary Operating Permit and to follow up on the fulfillment of the non-conformities found. (...)\". (Pages 435-451 of administrative file A-028) In official letter MS-RHN-ARSAZ-ERS-830-2014 of June 19, 2014, a follow-up report is rendered on the first-time application for a sanitary operating permit for Dirección16683, in which it is stated that the operating permit should not be issued until a series of non-conformities are corrected, reiterating the point just made regarding minors. Through official letter DARSAZ-RHN-728-2014, of June 23, 2014, the Director of the Área Rectora denied the application filed for evidencing a series of breaches of legal regulations. In official letter DI-158-2014 of July 14, 2014, the Department of Engineering and Urbanism of the Municipality of San Carlos indicates to Nombre138953 that, regarding the request to update the construction permit Placa26289 issued on March 6, 2009, its renewal was not necessary if the works began within one year after it was granted. By official letter SG-DEA-2262-2014-SETENA of July 16, 2014, SETENA informs the CAI that any type of activity involving fuel handling always carries an associated risk due to the nature of the substances, but that notwithstanding this, specific procedures and regulations are managed for service stations that tend to regulate and minimize the risks that said activity may represent. On August 13, 2014, Nombre26931, in its capacity as lessee of the property where the station is intended to be located, requested the operating permit for the operation of that business; however, through official letter MS-RHN-ARSAZ-ERS-1196-2014 (RHN-URS-054-2014) of September 4, 2014, the Health Regulation Team of the Área Rectora renders a follow-up report to assess the conditions for the operation of the Nombre26931 Aguas Zarcas Service Station and concludes: \"In view that we, the health authorities, are public officials and mere depositaries of the Law, and therefore cannot make exceptions in its application, the sanitary operating permit cannot be granted for failing to comply with the 100-meter setback established in the specific regulations of Decreto Ejecutivo 30131-MINAE-S.\", so it recommended not granting the sanitary permit requested. Based on that opinion, by official letter DARSAZ-RHN-1157-2014 of September 8, 2014, the Área Rectora resolved to deny the first-time application for the sanitary operating permit. The appeal having been filed (on September 17, 2014), it was rejected by the Minister of Health through official letter number DM-A4815-14 of November 14, 2014, as she indicated that the appeal was untimely; however, this decision was annulled, and definitively, through official letter number CAI-0216-2014 of September 25, 2014, the CAI communicated that by agreement number 48-1 8-2014, the nullity incident presented by Nombre138953 was rejected, alleging that the resumption of the operation of the service station was a future and uncertain event and that the CAI cannot make resolutions based on future and uncertain assumptions. Through resolution number DM-A-1275-15 of February 16, 2015, the Ministry of Health dismissed the appeal, stating: \"... The foregoing by virtue that the Aguas Zarcas Service Station was closed by the Health Authority on November 30, 2005, and since that date it has not had a Sanitary Operating Permit, even though in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy, granted the respective authorizations for the remodeling of the Service Station, for reasons not attributable to the Administration, represented in the aforementioned Institutions, the construction was paralyzed on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the logbook; and during the period of paralysis of the construction works, the application for the operating permit process for the Angelitos Childcare Center establishment was received on May 13, 2011, an operating permit granted according to our legal system since, due to the aforementioned paralysis of works at the Service Station, there was no legal certainty at that procedural moment of any commercial activity at the site. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Área Rectora de Salud Local of their intention to continue construction, so that on a specific date, the service station would be ready to apply for the Sanitary Operating Permit, and given this omission to communicate to the Área Rectora de Salud of Aguas Arcas, we proceeded as legally appropriate to grant the permit to the Angelitos Daycare Centro de Atención Integral. Now then, neither may we go against the freedom to work, Constitutionally regulated, and by that same principle, it is not possible to annul the permit granted to the Centro de Atención Integral, as the appellant intends, and grant the permit to the Service Station, which due to its inactivity and lack of communication to the Active Administration of the State, did not alert that the remodeling of the Service Station would resume.\"\n\nAfter that, by agreement number 16-4 of March 4, 2016, the Ministry of Health renewed the operating permit for Guardería Los Angelitos through the issuance of habiliation certificate CAI-86-2016, which was communicated to the recipient through official letter CAI-009-2016 of April 22, 2016.\n\n**VII.-** In light of that account, the plaintiffs reproach that official letter DARSAZ-RHN-1157-2014 from the Área Rectora de Salud, through which it rejected the application for a sanitary operating permit (PSF) submitted by the company Nombre26931 Petróleo Costa Rica for the Aguas Zarcas Service Station, contains an absolute nullity defect, because the grounds for that act are based on an illegal act, which is the operation of Angelitos Daycare, which is located 37 meters from the Service Station. In their view, the Administration did not consider that it already had a consolidated land use (uso de suelo consolidado) for the fuel service station and that it was in the construction stage. They consider that resolution no. DM-A-1280-15 of 8:30 a.m. on March 4, 2015, from the Minister of Health, which confirms in all its aspects official letter DARSAZ-RHN-1157-2014, is equally invalid. From the analysis of the aforementioned acts, it is clear that the precedent supporting the grounds for the final rejection act was Technical Report No. MS-RHN-ARSAZ-ERS-1196-2014 of September 4, 2014, in which it was established that the Service Station did not comply with certain physical or sanitary conditions, among these: lack of protective grates in perimeter channels in the storage area and the distance of the fuel storage tanks from Angelitos Daycare, which is 37 meters, that is, less than the 100 meters established by Decreto 30131, called \"Reglamento para la Regulación del Sistema de Almacenamiento y Comercialización de Hidrocarburos\". In that specific standard, section 15.10 states: \"*Artículo 15.—Del terreno. The land where a terrestrial service station is installed must meet the following requirements: (...) 15.10 One hundred meters from buildings of factories or sites where explosive or flammable products or substances are stored in quantities that may cause a danger according to the technical criteria of the Ministry of Health, public gathering places, and electrical substations.*\" It was precisely because of this physical proximity of the fuel storage tanks to Angelitos Daycare that the Ministry of Health ordered the denial of the PSF. From this perspective, the claimants' allegations concentrate on the invalidity of the enabling act issued in favor of the operation of said Daycare, as a prerequisite for the nullity sought regarding the conduct denying their applications for operation as a service station. Within the plaintiffs' theory of the case, it is clear that by suppressing the element that constitutes the grounds and cause for the denial of their petitions, the acts negative to their interests would lack a grounds element, giving way to a new weighing of their case, in that eventuality, without considering the limitation arising from the existence of the cited daycare establishment. Therefore, addressing the allegations regarding the habiliation and operation of the daycare is decisive, as a non-deferrable prerequisite for the analysis of the validity of the conduct related to the denial of the Service Station's activities. In this sense, as a first aspect, it is alleged **a) the Nullity of the operating permits issued by the CAI to Guardería Angelitos and the acts that confirm them: habiliation certificate CAI-2142 granted by the CAI through Agreement No. 07-23-2011, Agreement No. 47-03201 3, Agreement No. 22-24-201 3, Official Letter No. CAI-0216-2014 of September 25, 2014, and resolution No. DM-A-1 275-15 of February 16, 2015**. On this point, essentially, it is argued that these certificates do not meet the requirements and permits demanded by the legal system, among these, those required by Article 4.3.3.1 of Decreto Ejecutivo No. 30186-S, permits that were not submitted in the process. It points out that in none of the inspections conducted by the Administration are aspects related to electrical installations, fire prevention, hydraulic and sanitary installations, and foundations recorded. It highlights that Resolution No. DM-A-1275-15 of February 16, 2015, and No. DARSAZ-RHN-1157-2014 of September 8, 2014, omitted to refer to these aspects. Similarly, it states that verification of alignments was not complied with, since the Ministry of Health did not conduct an analysis of contamination sources that could affect the Daycare. It says that the daycare center began its process in 2011 and the Service Station existed long before, so the inspection should have considered the permits granted and the rights acquired as of the inspection date. If the Daycare did not comply with the alignment, the Centro de Atención Integral should have conducted the reasonableness analysis requested by Decreto 30131-MINAE-S. It states that in the inspection of May 23, 2011, in section 4.3.1.2, it was indicated that the establishment was 100 meters away from high-risk centers. It considers that based on this erroneous information, the CAI issued Agreement No. 07-23 of August 10, 2011, through which it authorized Guardería Angelitos for one year. Therefore, it is affirmed that there is no evidence in the entire administrative file that the Área de Salud de Aguas Zarcas, and even less the Center, assessed whether or not the service station represented a risk to the Daycare users as required by Article 4.3.1.2 of the CAI Habiliation Standard and Decreto Ejecutivo 30131-MINAE-S. It considers that the Station holding a consolidated land use, as will be seen, and a location permit issued by the Ministry of Health, as well as construction permits, grants it a priority right regarding location and operation. Regarding the renewal of the Daycare's habiliation, carried out through habiliation certificate CAI-2142, it points out that by agreement 07-23-2011 of August 10, 2011, the Daycare was authorized for one year, which expired on August 10, 2012, and from that date until February 28, 2013, the Daycare operated without a permit, since it was not until that date that firm Agreement No. 47 was issued in minute number 3 of the session of February 28, 2013. It emphasizes that contrary to that agreement, the certificate indicated a validity of 3 years. Finally, on this point, it indicates that the expansion authorization is null, since it is not clear in the administrative file what physical or construction works were carried out, and in any case, no permit was provided to execute said works. It says that the Daycare does not have environmental feasibility, plans approved by the Colegio Federado de Ingenieros y Arquitectos, plan approval (visado) from the Ministry of Health, a permit from the Benemérito Cuerpo de Bomberos, or a construction permit from the Municipality of San Carlos, aspects that are applicable even when the site is already built. Regarding these issues, it is appropriate to indicate what is set forth below.\n\n**VIII.-** From the analysis of the pieces in the records, it is clear that on May 13, 2011, Mrs. Nombre138954 submitted to the Área Rectora de Aguas Zarcas of the Ministry of Health an application for authorization to operate a comprehensive care center (centro de atención integral) called \"Angelitos Guardería\", to carry out the activity of a childcare center, with an area of 420 m2. The documents attached to the application were: -sworn statement for sanitary operating permit application procedures; -incorporation of the establishment's technical manager before the respective professional association; and -proposal for the authorization of a comprehensive care center for children. On May 23, 2011, an ocular inspection was conducted to evaluate the physical sanitary conditions of the Angelitos Daycare. The report drawn up for that purpose indicates that the evaluation instrument for Centros de Atención Integral was applied. In said measurement instrument, in numeral 4.3 \"Estructura física\", section 4.3.1.2, subsection b) called \"Centros de alto riesgo (according to the Comisión Nacional de Emergencia) and Ministry of Health which directly affect users\", a value of 1 was recorded. Through official letter MS-RHN-ARSAZ-ERS-663-2011 of May 24, 2011, the Dirección del Área Rectora de Aguas Zarcas is informed that after having applied to the Angelitos Childcare Center the evaluation instrument \"*Cuestionario de Evaluación Centros de Atención a niños y adolecentes (sic), modality Diurna*\", that establishment was not operating until it had the corresponding permit, so the following aspects could not be evaluated: -there is no INS policy because they have no users; -the number of people served was not indicated because they have no users; -the maximum capacity of the center is 30 users; -point 4.5 Promoción del desarrollo and 4.6 Atención en salud of the Standard could not be evaluated because they had not started activity. It clarified that the evaluation team focused more on the physical plant. Through official letter MS-RHN-ARSAZ-ERS-821-2011 of June 29, 2011, official Nombre138958 reports, in what is relevant to this process, that she proceeded to update the follow-up visit made on May 23, 2011, because on that date they had not finished remodeling the infrastructure; she appeared at the site accompanied by Lic. Faustino Godoy Cortez on June 29, 2011, with the purpose of evaluating the points that had improved in the daycare regarding the Standard for the Habiliation of Centros de Atención Integral. She detailed the points with which it did not fully comply with respect to said standard. In item 4.3.1.2 regarding the aspect of contamination sources of various kinds, she justified: \"*Previously in the evaluation, a code of 0.5 had been placed for being close to a painting workshop. However, a wall has been built that does not allow direct communication with the daycare. Therefore, it is considered suitable for the requested activity.*\" She concluded that the evaluation team considered it was viable to grant the sanitary operating permit for the activity requested to the Angelitos Daycare. Through Agreement number 07-23 of August 10, 2011, the Consejo de Atención Integral (hereinafter \"the CAI\") authorized the Daycare as a comprehensive care center, to serve minors from 2 to 6 years old, from August 10, 2011, to August 9, 2012, that is, for a period of one year. This was communicated to the Dirección Regional de Salud Huetar Norte through official letter CAI-0485-2011 of August 109, 2011. Regarding this first aspect of granting the operating authorization, it should be noted that the inspection reports themselves highlight that the verifications prior to the issuance of the respective criterion were using the Standards for the Habiliation of Centros de Atención Integral. In this sense, as inferred from Articles 6 and 7 of the Ley General de Centros de Atención Integral, No. 8071, the Consejo de Atención Integral is the body (attached to the Ministry of Health) responsible for authorizing, supervising, inspecting, and coordinating the proper functioning of the comprehensive care modalities for persons up to twelve years of age. Within its competencies, section 7, subsection a) ejusdem establishes the proposal of technical standards for granting operating permits for comprehensive care centers for persons under twelve years of age, as well as (subsection g) approving the project of the comprehensive care centers intended to be opened. For its part, canon 7 of Decreto Ejecutivo No. 29580-S sets as one of the specific objectives of that Council: \"*f) Ensure that comprehensive care establishments for minors have met the requirements for the operating permit and are actively involved in the accreditation process*\". From this standpoint, in accordance with the powers of prior verification, it is gathered from the records that the granting of the Daycare's operating permit was preceded by the inspections imposed by the legal system. Indeed, it is worth noting that in the first inspection report, that is, official letter MS-RHN-ARSAZ-ERS-663-2011 of May 24, 2011, a series of improvements are required, which were later collated in report 821-2001 of June 29, 2011, in which it was deemed pertinent and appropriate to grant the PSF, considering that it met all the applicable ordinances for this type of establishment. In each of those reports—which are in the records—the items and aspects that form part of the evaluation instrument can be seen, which highlight compliance with the regulatory conditions required for the operation of that type of daycare. Now then, later, on July 24, 2012, Mrs. Nombre138954 submitted a renewal application for the operating permit, resulting in which, on July 26, 2012, the corresponding inspection was conducted, and technical report MS-RHN-ARSAZ-ERZ-987-2012 of July 27 of the same year was issued, indicating that the physical-sanitary and safety conditions were compliant for the renewal of the sanitary operating permit by the CAI. In said measurement instrument, in numeral 4.3 \"Estructura física\", section 4.3.1.2, subsection b) called \"Centros de alto riesgo (according to the Comisión Nacional de Emergencia) and Ministry of Health which directly affect users\", a value of 1 was recorded. It was due to the foregoing that through firm Agreement No. 47, recorded in Minute No. 3 of the session held on February 28, 2013, the CAI agreed to authorize the Daycare for 1 year \"*to provide comprehensive care services for up to 30 children from 2 to 6 years of age and under the Private modality, temporary daytime care alternative, from 7:00 a.m. to 5:00 p.m.*\" In the agreement, box 7 was checked, indicating that for permits of less than one year, no habiliation certificate is issued. Likewise, box 10.1 Other was checked, with the following indication: \"*a. To the administered party, within a period of 10 business days, deliver the 25 policies with the appropriate amount as stipulated by the regulation to the Law. b.*\n\nARS [Health Governing Area] must follow up on what was agreed in point #11 subsection A of this agreement and inform the CAI. Once what was requested is submitted, the permit will be extended to 3 years. (...)\" In accordance with that account, which emerges from the facts that have been deemed accredited in this proceeding, it is understood that the renewal application for the PSF was filed prior to the expiration of the original permit, and although that initial validity expired on August 10, 2011, and the renewal was not granted until February 28, 2012, that does not determine per se the nullity of the renewal act, insofar as, based on the inspections conducted and the technical report issued for such purposes, it was possible to verify compliance with the conditions specific to this type of establishment. While it is true that the agreement indicated the renewal was for one year and the certificate recorded a term of 3 years, there is no irregularity whatsoever in that apparent discrepancy, insofar as the aforementioned agreement expressly indicated in box 10.1 that once the requirements set forth therein were satisfied, \"... the permit will be extended to 3 years. (...)\" Therefore, no such irregularity exists, insofar as the same agreement anticipated the possibility of extending the validity of the renewal from one year to three years, as indeed occurred.\n\nIX.- Now then, once the renewal was granted, on May 9, 2013, Ms. Nombre138954 requested a visit from the Ministry of Health to inspect aspects associated with a potential expansion of facilities and services. Thus, by official communication MS-RHN-ARSAZ-ERS-658-2013 of May 27, 2013, from the Health Regulation Team of the Aguas Zarcas Health Governing Area, the expansion request is analyzed and it is recommended: \"-Request that the permit holder submit a sketch indicating the delimitation by areas according to activity and in accordance with the provisions of the Standard for the Licensing of Comprehensive Care Centers, indicating the existing free spaces for service users (...)\" In said official communication, moreover, several non-conformities were noted related to sanitary services and Law No. 7600, areas used for multiple activities, and exclusive and differentiated spaces. On June 4, 2013, Ms. Nombre138954 submitted the documents related to the requested requirements, attaching a sketch detailing that the infrastructure has a Nombre26931 area of 465 m2. Through report MS-RHN-ARSAZ-ERS-710-2013 of June 11, 2013, from the Health Regulation Team of the Aguas Zarcas Health Governing Area, it is concluded that the physical, sanitary, and safety conditions of the Angelitos daycare center are in accordance with the provisions of the Standard for the Licensing of Comprehensive Care Centers. Subsequently, in a note submitted on October 10, 2013, Ms. Nombre138954 requested an inspection having expanded the facilities so that the granted permit would cover more students, attaching a sketch of the expansion carried out and a general description of various areas of the daycare center, for a Nombre26931 area of 1095.35 m2. Through final and binding agreement No. 22-24 of December 6, 2013, the CAI ordered: \"Approve the increase in installed capacity as follows: License for 3 years from 2-28-2013 to 2-27-2016 to serve up to 75 children from 2 years to 6 years from 7:00 am to 5:00 pm. Licensing certificate No. 2142 is issued with the approved modifications. The administered party must submit the current licensing certificate for its cancellation.\" Ultimately, the CAI issued licensing certificate CAI-2142 in favor of Angelitos Guardería, to provide comprehensive care services for up to 30 boys and girls, from 2 years to 6 years, under the private alternative temporary daytime care modality, from 7:00 am to 5:00 pm, according to final and binding agreement No. 47 recorded in minute No. 03 of the session held on February 28, 2013, with the indication that said permit expired on February 27, 2016. Through final and binding agreement No. 48-18 of 2014, of August 8, 2014, the CAI ordered: \"AGREEMENT NO. 48: In response to the nullity incident filed by Nombre138956, legal representative of the company Nombre138953, against final and binding agreement No. 47-03-2013 and the licensing permit granted to the Angelitos Guardería center, seeking the best interests of the child and in fulfillment of the purposes and objectives of the Comprehensive Care Council to guarantee the right of minors to participate in comprehensive care programs when their fathers, mothers, or legal representatives so require, ensuring that all requirements established in the respective regulations for each care modality are met, pursuant to the provisions of Article 3 of Law 8017 (...) and taking into consideration the reports submitted to this Council by the interested instances and consulted entities, it is agreed to dismiss the cited incident taking into consideration the following: 1. At the time of conducting the inspection to assess compliance with the standard for comprehensive care centers, the Aguas Zarcas Health Governing Area did not find objective, real, and present elements regarding the operation of the 'Servicentro Aguas Zarcas' located near the comprehensive care center 'Angelitos Guardería' that could become a source of contamination or risk that could endanger the health and integrity of the children using the center. Moreover, it was reported at that time that the aforementioned fuel service station has not been in operation for many years, maintaining that condition to the present. 2. The fact that the fuel service station was planning, at an undefined time, to resume operations is a future and uncertain event, since restarting the establishment's operation would require compliance with a series of conditions, including the processing of the corresponding permits from each of the instances to which the legislation grants competence for that purpose. 3. The Comprehensive Care Council cannot make decisions considering future and uncertain assumptions, as this would be detrimental to the objective practice of public function and the rights of citizens to have a prompt response from the administration in adherence to current legislation. For all the foregoing, the operating permit for the comprehensive care center 'Angelitos Guardería' is maintained under the terms established in final and binding agreement No. 47-03-2013 of February 28, 2013.\" While that decision was challenged by the claimants, ultimately, through resolution number DM-A-1275-15 of February 16, 2015, the Ministry of Health dismissed the appeal filed by Nombre138953 against agreement CAI-48-18-2014. In that regard, it indicated in the operative part that said rejection was based on the following: \"... The foregoing by virtue of the fact that the Aguas Zarcas Service Station was closed by the Health Authority on November 30, 2005, and since that date does not have a Sanitary Operating Permit, despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy granted the respective authorizations for the remodeling of the Service Station, for causes not attributable to the Administration, represented in the aforementioned Institutions, the construction was halted on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the logbook, and during the period of halt of the construction works, the application for processing the operating permit for the establishment Guardería Infantil Angelitos was received on May 13, 2011, an operating permit granted in accordance with our legal system since, due to the aforementioned halt of works at the Service Station, there was no legal certainty at that procedural moment of any commercial activity at the location. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Local Health Governing Area of their intention to continue with the construction, so that by a certain date, the service station would be ready to request the Sanitary Operating Permit, and given that omission of communication to the Health Governing Area of Aguas Zarcas, it was proceeded as legally appropriate to grant the permit to the Comprehensive Care Center Angelitos Guardería. Now then, we also cannot go against the freedom to work, constitutionally regulated, and by that same principle, it is not possible to annul the permit granted to the Comprehensive Care Center, as the appellant intends, and grant the permit to the Service Station, which, due to its inactivity and lack of communication to the Active State Administration, did not alert that the remodeling of the Service Station would resume.\" Based on the foregoing, it is the opinion of this Court that the defendant Administration conducted, at all times, the rigorous verifications and inspections prior to the operation of Angelitos Guardería, as well as the renewal and expansion of services procedures. The central claim refers to the lack of analysis regarding the prior existence of a Service Station within a 100-meter radius of the site where said daycare center would be licensed, the claimants estimating that the antecedent operation of that station was evident, which, they point out, in any case, has priority regarding the permitted use. On that aspect, after examination of this matter, it is evident that the denial criterion reflected in the resolution of the appellate measures rests on the basis of determining elements that are of undeniable impact for the present analysis. On one hand, that the Aguas Zarcas Service Station has been closed since November 30, 2005, since which date it has no PSF. Then, while it is true that on August 8, 2008, the Ministry of Health granted a location permit for the cited service station, from the weighing of the elements of conviction it follows that the activity and operation of that establishment were entirely uncertain, given that, as has been outlined, as of November 2009 the remodeling works were suspended, allegedly due to financing issues, and were not resumed until October 2013. It was precisely within that period of abandonment of the works that the petition for the operation of the daycare center was received and processed, which, as has been indicated, has had a sanitary operating permit since August 10, 2011. That is, the PSF of that daycare center was granted more than two years before the remodeling works of the service station were reactivated. That state of abandonment in which those works were left produced, undoubtedly, a state of uncertainty regarding the effective operation of the service station, so that the processing of the daycare center's application within that interval of abandonment could not consider that operation, protected by a supposed vested right of operation and location permit or compliant land use certified by the local entity of San Carlos. Regardless of those conducts regarding the disposition of land use, the truth of the matter is that the definition of sanitary operating licensing is a matter that falls exclusively to the Ministry of Health, so that the debate on the nature of whether the municipal land use certificates put forward by the plaintiffs constitute a vested right or not is of no greater relevance for the resolution of this conflict. This is because, regardless of holding a certificate of this type that evidences the land use regime of a specific territorial space, this does not automatically lead to, nor bind, the granting of a PSF. The former is a prerequisite for the processing of the latter, but in no way implies the obligatory granting of the PSF. If at the time of granting the daycare center's permit the service station was in abandonment, without there being certainty about the fate of those works, this Court concludes that it did not constitute an element that could limit the granting of that type of administrative licensing, especially since the interested parties did not timely communicate the plans regarding that particular project. Thus, the claimants cannot claim that, despite the voluntary abandonment they made of the works, by the mere holding of a land use certificate, location permit, or in general, by the titles obtained to undertake the remodeling project, despite leaving the fate of the remodeling in suspense for an approximate period of 4 years, they maintained a sort of priority or consolidated situation with respect to any other type of activity that might be intended in the vicinity of the site where the station would be located. The very inertia and neglect of the owners of that property and the business in question led to levels of uncertainty that resulted in the proximity of the station not being considered in the processing of the application filed for the operation of Angelitos Guardería, given that said business had been closed since November 2005, for an indefinite time due to problems detected from leaks in the storage tanks, and while the remodeling works began on May 20, 2009, they were abandoned or left in suspense in November of that same year, so that at the time of processing that application, there was no indication of the future of the station, and this Court does not share the criterion of the claim that at the time of processing that application, it was imperative to analyze the proximity of the service station (37 meters), as it is reiterated, it was not a business that was operating or had any certainty regarding its imminent start of operations, for which reason suppressing or denying applications for economic activities on the basis of that conjecture would imply a detriment to the rights of third parties and an unfounded privilege in favor of one person, conferred on the basis of a broad state of uncertainty, attributable to their own indolence and neglect. That the plaintiffs later resumed the construction actions is no impediment to the validity of the PSF granted to Angelitos Guardería, so that the start of operation of this establishment, on the contrary, is an element that must indispensably be considered when analyzing the appropriateness or not of granting the PSF to the service station. Thus, this Court does not observe any deficiency in the objective material elements of the act, nor in the alleged failings in the reasoning, since each of those criticized acts is preceded by the corresponding technical analyses and with due foundation, even when it is evident that such considerations are not shared by the plaintiffs and what was resolved is contrary to their interests. Therefore, no grounds for nullity are observed in what has been the subject of challenge, as a result of which, the annulment claims filed against the conducts in question must be rejected.\n\nX.- In another line of arguments, the nullity of resolution DARSAZ-RHN-1157-2014 that rejected the station's operating permit is challenged, as well as of the other conducts that confirm that denial. For such purposes, as set forth above, in that act the denial of the PSF petition was ordered, upon considering that the station was located less than 100 meters away from the Angelitos Guardería, which has been operating uninterruptedly since August 2011. It has already been pointed out that the technical support for that conduct was official communication MS-RHN-ARSAZ-ERS-1196-2014 (RHN-URS-054-2014) of September 4, 2014, from the Health Regulation Team of the Health Governing Area, in which it was stated \"...that a sanitary operating permit cannot be granted due to non-compliance with the 100-meter setback established in the specific regulations of Decreto Ejecutivo 30131-MINAE-S.\" Likewise, it is reiterated that resolution number DM-A-1275-15 of February 16, 2015, from the Ministry of Health dismissed the appeal, indicating: \"... The foregoing by virtue of the fact that the Aguas Zarcas Service Station was closed by the Health Authority on November 30, 2005, and since that date does not have a Sanitary Operating Permit, despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy granted the respective authorizations for the remodeling of the Service Station, for causes not attributable to the Administration, represented in the aforementioned Institutions, the construction was halted on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the logbook, and during the period of halt of the construction works, the application for processing the operating permit for the establishment Guardería Infantil Angelitos was received on May 13, 2011, an operating permit granted in accordance with our legal system since, due to the aforementioned halt of works at the Service Station, there was no legal certainty at that procedural moment of any commercial activity at the location. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Local Health Governing Area of their intention to continue with the construction, so that by a certain date, the service station would be ready to request the Sanitary Operating Permit, and given that omission of communication to the Health Governing Area of Aguas Zarcas, it was proceeded as legally appropriate to grant the permit to the Comprehensive Care Center Angelitos Guardería. Now then, we also cannot go against the freedom to work, constitutionally regulated (sic), and by that same principle, it is not possible to annul the permit granted to the Comprehensive Care Center, as the appellant intends, and grant the permit to the Service Station, which, due to its inactivity and lack of communication to the Active State Administration, did not alert that the remodeling of the Service Station would resume.\" The reiteration of this quotation is necessary insofar as it reveals the clear and compelling reasons that led to the rejection or denial of the request. Said justification highlights the set of circumstances that have already been the subject of analysis in the preceding sections of this judgment and therefore make their reiteration unnecessary. Nevertheless, it is clear that the fundamental cause for ordering the rejection of the cited petition was none other than the proximity of the daycare center; however, as has been stated, there is no irregularity whatsoever in the licensing granted by the CAI to that establishment, considering the reasons already set forth regarding the abandonment and uncertainty concerning the remodeling works, as well as the impossibility that, faced with that scenario, the petitions of third parties for the exercise of commercial activities could be validly limited, which, for the reasons stated, could not be limited by an eventuality and a panorama in which, due to the plaintiffs' neglect, there was no legitimate definition of the circumstances that would require considering the future operation of the station as an indispensable prerequisite in weighing the pertinence or not of the operation of those other businesses or activities. What has just been stated does not decline in any way due to the fact that the plaintiff had, prior to the commencement of operations of the daycare center, a location permit as well as the constructive permissibility title. Such building licenses were granted on March 6, 2008, by the Municipality of San Carlos (construction permit number Placa26289), however, it is reiterated, the works fell into abandonment in November 2009 and were reactivated until October 2013, and while it can be said, as the local entity stated, that the renewal of that license was not necessary, this does not directly lead to the granting of the operating permit, since they are different procedures, linked to each other, but ultimately, falling under different competences, namely, the building competence, by mandate of the Construction Law, assigned to local entities, and in the case of PSFs, competence attributed to the Ministry of Health, in accordance with the General Health Law. Thus, regardless of whether the plaintiffs held those administrative licenses, this does not lead, as intended, to a right to obtain the sanitary permit, given that such an aspect requires the satisfaction of the requirements that are pertinent to each type of establishment. On the other hand, the claim of consolidation of land use due to the station's operation since 1977 is not admissible. As has been pointed out, that establishment was closed in 2005 due to environmental problems arising from leaks in the storage tanks and since that date has not had a PSF. The plaintiffs' thesis would imply that the mere existence of a specific infrastructure, irrespective of its use or exploitation in accordance with legality, constitutes a limitation on the building development of neighboring properties or the exercise of other economic or residential activities. The consolidation referred to, which is protected under canon 28 of the Urban Planning Law, No. 4240, operates insofar as one is dealing with a compliant use, with the possession of all enabling titles that legitimize the structure and activity, but also, it supposes an impact on third parties insofar as it concerns a business that is operating. In cases such as the present, the operation of a service station would imply considering, for new constructions or requests for operating licensing, the impact in terms of risk for the activity intended to be implemented, it being clear that when the service station is operating, provided that activity is legitimate and licensed, it holds a priority and an acquired situation that deserves to be protected against new petitions. However, in the instant case, while the station had been located at said site since 1977, it had not been operating since 2005, and as of the date of processing the daycare center's application and its corresponding permit, there was no detail on the progress or fate of the remodeling works, therefore, it is reiterated, the mere expectation of operation was not opposable to said proceeding. Then, once that station sought to obtain its operating permit, it had to submit to the regulations and circumstances in force on the date it intended to reactivate the business, especially considering that the state of uncertainty about its operation is a matter exclusively attributable to it. From that angle of examination, the challenged act does not violate the doctrine of the inviolability of one's own acts that is objected to, since certainly the location permit had been granted by the Health Area of Aguas Zarcas, however, that act was issued in 2008, prior to the works entering abandonment, so that at the time of defining the appropriateness of the PSF, that aspect does not determine the invalidity of the denial being contested. Thus, the illegalities and pathological causes expressed as the basis of this claim are not shared, reason for which, in accordance with what is established in articles 128, 132, 133, 136, 158, 166, and 167 of the LGAP, no nullity whatsoever is observed to declare, for which reason the rejection of the claim regarding that particular must be ordered.\n\nXI.- Regarding the claims for indemnification. On the other hand, the plaintiffs request reparation for damages and losses according to the following detail: \"INDEMNIFICATION CLAIM It is requested that the State be condemned in the abstract to pay the damages and losses caused to Nombre138953 and to Nombre26931 Petróleo Costa Rica S.A., amounts that will be proven in the Judgment Enforcement phase. The damages and losses sought to be indemnified are the following: -The amount of rent that, according to the lease contract, Nombre138953 was to receive from September 9, 2014, until the moment the Station is opened, which is a monthly amount of ¢1,500,000.00 colones. As of March 1, 2016, that amount is ¢26,550,000.00. -Interest calculated based on the legal rate of the Banco Nacional pursuant to Article 1163 of the Civil Code, on the sums that Nombre138953 should have received monthly from September 9, 2014, until the date the Station is opened. As of March 1, 2015, that amount is ¢1,256,080.78 colones calculated pursuant to Article 1163 of the Civil Code. (See calculation table in virtual case file on (page 37 of the original complaint).\" (Images 5-7 of the case file, amendment to the complaint at images 1450-1451) In the logical context of the complaint, the adequate cause of the items formulated as the injuries produced is precisely the issuance of conduct that the proponents consider contrary to the legal system, insofar as it enables the operation of Angelitos Guardería, and denies their petition for a PSF. The invalidity of these formal manifestations of the Administration would entail the generation of illegitimate effects that, in accordance with the provisions of Article 190 of the LGAP, would be the cause of the damage and, therefore, a parameter for granting indemnification. However, having established that such behaviors do not suffer from the alleged nullity, it is the judgment of this collegiate body that the claimed items are not supported by a criterion of imputation that would generate the duty to indemnify sought in this proceeding. From that standpoint, the claims formulated by the plaintiffs cannot be considered as unlawful injuries at their base, nor as damages or patrimonial losses that may derive or arise arbitrarily from public conduct. Therefore, the rejection of the complaint must be ordered with respect to this particular.\n\nXII.- Corollary. Analysis of the defenses raised. Both the representation of the State and that of the co-defendant Nombre138954 raised the defenses of expiry of the action and lack of right. The first must be rejected for the reasons stated supra. The defense of lack of right must be fully accepted, having established the validity of the questioned conduct, as well as the inadmissibility of the indemnification pleas. Consequently, the complaint is declared without merit in all its claims.\n\nXIII.- Regarding costs. In accordance with Article 193 of the Código Procesal Contencioso Administrativo, procedural and personal costs constitute a burden imposed on the losing party for the fact of being so. Dispensation from this condemnation is only viable when, in the Tribunal's opinion, there is sufficient reason to litigate, or when the judgment is issued by virtue of evidence of whose existence the opposing party was unaware. In the case at hand, no reason is observed to dispense with the application of the maxim of condemning the losing party, for which reason they must be imposed on the losing plaintiffs on a joint and several basis. In the case of the State, by express request, legal interest is granted on this item, an aspect to be established and defined in the enforcement phase of this ruling, once it becomes final.\n\nPOR TANTO.\n\nThe defense of expiry of the action is rejected. The defense of lack of right is accepted. Consequently, the complaint filed by the companies Nombre138953 and Nombre26931 Petróleo Costa Rica S.A. against the State and Mrs. Nombre138954 is declared without merit in all its claims. Both costs of this proceeding are imposed on the losing plaintiffs on a joint and several basis. In the case of the State, by express request, legal interest is granted on this item, an aspect to be established and defined in the enforcement phase of this ruling, once it becomes final. José Roberto Garita Navarro/ Silvia Consuelo Fernández Brenes/Christian Hess Araya*-*-*-*-*-*-*-*-*-*-\n\nEXPEDIENTE: 16-002338-1027-CA\n\nASUNTO: PROCESO DE PURO DERECHO\n\nACTOR: Nombre26931 Petróleo Costa Rica S.A. y Nombre138953\n\nDEMANDADOS: El Estado y Nombre138954\n\nJRGN. IGWTHUP.2018\n\n| Documento firmado por: |\n| --- |\n| ROBERTO GARITA NAVARRO, JUEZ/A DECISOR/A |\n| SILVIA FERNÁNDEZ BRENES, JUEZ/A DECISOR/A |\n| CHRISTIAN HESS ARAYA, JUEZ/A DECISOR/A |\n\nThus, by official communication MS-RHN-ARSAZ-ERS-658-2013 of May 27, 2013, from the Health Regulation Team of the Aguas Zarcas Governing Area, the expansion request is analyzed and it is recommended: \"-To request that the permit holder submit a sketch indicating the delimitation by areas according to activity and in accordance with the provisions of the Norm for the Licensing of Comprehensive Care Centers, indicating the existing free spaces for service users (...)\". In said official communication, several non-conformities related to sanitary services and Law No. 7600, areas used for various activities, and exclusive and differentiated spaces were also pointed out. On June 4, 2013, Mrs. Silvia Elena Zamora Gómez presented the documents related to the requested requirements, attaching a sketch detailing that the infrastructure has a total area of 465 m2. Through report MS-RHN-ARSAZ-ERS-710-2013 of June 11, 2013, from the Health Regulation Team of the Aguas Zarcas Governing Area, it is concluded that the physical-sanitary and safety conditions of the Angelitos daycare center are in accordance with the provisions of the Norm for the Licensing of Comprehensive Care Centers. Subsequently, in a note filed on October 10, 2013, Mrs. Silvia Elena Zamora requested an inspection after having expanded the facilities with the objective that the granted permit would cover more students, attaching a sketch of the expansion carried out and a general description of several areas of the daycare center, for a total area of 1095.35 m2. Through final agreement No. 22-24 of December 06, 2013, the CAI ordered: \"To approve the increase in installed capacity as follows: License for 3 years from 2-28-2013 to 2-27-2016 to serve up to 75 children from 2 years to 6 years from 7:00 am to 5:00 pm. Licensing certificate No. 2142 is forwarded with the approved modifications. The administrated party must deliver the current licensing certificate to proceed with its cancellation.\" Ultimately, the CAI issued licensing certificate CAI-2142 in favor of Angelitos Guardería, to provide comprehensive care services for up to 30 boys and girls, from 2 years to 6 years, under the private alternative modality of temporary daytime care, in a schedule from 7:00 am to 5:00 pm, according to final agreement No. 47 recorded in minute No. 03 of the session held on February 28, 2013, with the indication that said permit expired on February 27, 2016. Through final agreement No. 48-18 of 2014, of August 08, 2014, the CAI ordered: \"AGREEMENT NO. 48: In response to the nullity incident filed by Denia Rodríguez Mora, legal representative of the company Odele Los Negritos against final agreement No. 47-03-2013 and the licensing permit granted to the Angelitos Guardería center, seeking the best interests of the child and in compliance with the purposes and objectives of the Comprehensive Care Council to guarantee the right of minors to participate in comprehensive care programs when their fathers, mothers, or legal representatives so require, ensuring that all the requirements established in the respective regulations for each of the care modalities are met, in accordance with Article 3 of Law 8017 (...) and taking into consideration the reports sent to this Council by the interested parties and consulted entities, it is agreed to declare the cited incident without merit, taking into consideration the following: 1. At the time of conducting the inspection to assess compliance with the standard for comprehensive care centers, the Aguas Zarcas Health Governing Area did not find real and present objective elements of the operation of \"Servicentro Aguas Zarcas\" located next to the comprehensive care center \"Angelitos Guardería\" that could become a source of contamination or risk that could endanger the health and integrity of the children using the center. In fact, it was reported at the time that the aforementioned fuel service station has not been in operation for many years, maintaining that condition until the present. 2. The fact that the fuel service station was planning to resume operations in an undefined time is a future and uncertain event, since to restart the operation of the establishment a series of conditions would have to be met, including the management of the corresponding permits by each of the instances that the legislation grants competence for that purpose. 3. The Comprehensive Care Council cannot make resolutions taking into consideration future and uncertain assumptions, as this would be detrimental to the objective practice of public function and the rights of citizens to have a prompt response from the administration in accordance with current legislation. For all the foregoing, the operating permit of the comprehensive care center \"Angelitos Guardería\" is maintained under the terms established in final agreement No. 47-03-2013 of February 28, 2013.\" Although that decision was challenged by the claimants, ultimately, through resolution number DM-A-1275-15 of February 16, 2015, the Ministry of Health declared the appeal filed by Odele Los Negritos against agreement CAI-48-18-2014 without merit. In that sense, it indicated in the operative part that said rejection was based on the following: \"... The foregoing by virtue of the fact that the Aguas Zarcas Service Station was closed by the Health Authority on November 30, 2005, and since that date it has not had a Sanitary Operating Permit (Permiso Sanitario de Funcionamiento, PSF), despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy, granted the respective authorizations for the remodeling of the Service Station, for reasons not attributable to the Administration, represented in the aforementioned Institutions, the construction was paralyzed on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the logbook, and during the period of paralysis of the construction works, the application for processing the operating permit for the Angelitos Children's Daycare Center establishment was received on May 13, 2011, an operating permit granted in accordance with our legal system, since due to the aforementioned paralysis of works at the Service Station, there was no legal certainty of any commercial activity at the site at that procedural moment. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Local Health Governing Area of their intention to continue with the construction, so that, on a certain date, the service station would be ready to request the Sanitary Operating Permit, and given that omission to communicate to the Aguas Arcas Health Governing Area, it was proceeded, as legally corresponds, to grant the permit to the Angelitos Guardería Comprehensive Care Center. However, we cannot go against the freedom to work, Constitutionally regulated, and by that same principle, it is not possible to annul the permit granted to the Comprehensive Care Center, as the appellant intends, and grant the permit to the Service Station, which, due to its inactivity and lack of communication to the Active State Administration, did not alert that the remodeling of the Service Station would resume.\" Based on the foregoing, it is the opinion of this Court that the respondent Administration carried out the rigorous verifications and inspections at all times prior to the operation of Angelitos Guardería, as well as the renewal and expansion of services procedures. The central claim refers to the absence of analysis regarding the prior existence of a Service Station within a radius of 100 meters of the site where said daycare center would be licensed, the plaintiffs estimating that the prior operation of that station was evident, which, they point out, in any case, has priority regarding the permitted use. Regarding that aspect, after examining the present matter, it is evident that the denying criterion embodied in the resolution of the recourse measures rests on the basis of determining elements that are of undeniable incidence for the present analysis. On the one hand, that the Aguas Zarcas Service Station was closed since November 30, 2005, a date from which it does not possess a PSF. Then, while it is true that on August 08, 2008, the Ministry of Health granted a location permit for the aforementioned service station, from the weighing of the evidentiary elements it emerges that the activity and operation of that establishment were entirely uncertain, given that, as has been reviewed, from November 2009 the remodeling works were suspended, supposedly due to financing issues, and were not resumed until October 2013. It was precisely within that lapse of abandonment of the works that the request for the operation of the daycare center was received and processed, which, as has been indicated, has had a sanitary operating permit since August 10, 2011. That is, the PSF for that daycare center was granted more than two years before the remodeling works of the service station were reactivated. That state of abandonment in which those works were left produced, undoubtedly, a state of uncertainty regarding the effective operation of the service station, so that the processing of the daycare center's application within that interval of abandonment could not consider that operation, sheltered under an alleged acquired right to operate and a location or conforming land-use permit certified by the local entity of San Carlos. Regardless of those conducts regarding the disposition of land use, the truth of the matter is that the definition of sanitary licensing for operation is a matter that falls exclusively to the Ministry of Health, so that the debate on the nature of an acquired right or not of the municipal land-use certificates that the plaintiffs present is not of major relevance for the resolution of this conflict. This is because, regardless of holding a certificate of this nature that evidences the land-use regime of a specific territorial space, this does not automatically carry, nor does it bind, the granting of a PSF. The former is a prerequisite for the processing of the latter, but in no way implies the obligatory granting of the PSF. If at the time of granting the daycare center's permit the service station was in abandonment, without there being certainty about the fate of those works, this Court concludes that it did not constitute an element that could limit the granting of that type of administrative licensing, especially since the interested parties did not timely communicate the plans regarding that particular project. Thus, the claimants cannot pretend that despite the voluntary abandonment they made of the works, by the mere holding of a land-use certificate, location permit, or, in general, for the titles obtained to undertake the remodeling project, despite leaving the fate of the remodeling in suspense for an approximate period of 4 years, they maintained a sort of precedence or consolidated situation with respect to any other type of activity that sought to be carried out in the vicinity of the site where the station would be located. The very inertia and neglect of the owners of that property and of the business in question led to the levels of lack of definition that resulted in the proximity of the station not being weighed in the processing of the management formulated for the operation of Angelitos Guardería, given that such business had been closed since November 2005, for an indefinite time due to problems detected from leaks in the storage tanks, and although the remodeling works began on May 20, 2009, they were abandoned or left in suspense in November of that same year, so that at the time of processing that application, there was no indication of the future of the station, without this Court sharing the criterion of the lawsuit that at the time of processing that management, it was imperative to analyze the proximity of the service station (37 meters), as it is insisted, it was not a business that was operating or that had certainty about its prompt entry into operations, so that suppressing or denying economic activity applications on the basis of said conjecture would imply a detriment to the rights of third parties and an unfounded privilege in favor of a person, conferred on the basis of a broad state of uncertainty, attributable to their own indolence and neglect. The fact that the plaintiffs later resumed the construction actions is not an obstacle to the validity of the PSF granted to Angelitos Guardería, so that the start of operations of this establishment, on the contrary, is an element that must indispensably be considered when analyzing the appropriateness or not of granting the PSF to the service station. Thus, this Court does not observe that there is a deficiency in the objective material elements of the act, nor of the shortcomings in the motivation that are alleged, since each of those criticized acts is preceded by the corresponding technical analyses and with the due legal basis, even when it is evident that such considerations are not shared by the plaintiffs and the resolution is contrary to their interests. Therefore, no cause for nullity is observed in what has been the object of questioning, as a result of which, the annulment claims made against the conducts in question must be rejected.\n\nX.- In another order of arguments, the nullity of resolution DARSAZ-RHN-1157-2014 that rejected the service station's operating permit is claimed, as well as the other conducts that confirm that denial. To that effect, as set forth above, in that act the denial of the PSF request was ordered, upon considering that the station was located less than 100 meters from the Angelitos Daycare Center, which has been operating uninterruptedly since August 2011. It has already been pointed out that the technical support for that conduct was official communication MS-RHN-ARSAZ-ERS-1196-2014 (RHN-URS-054-2014) of September 04, 2014, from the Health Regulation Team of the Governing Area, in which it was stated \"...that a sanitary operating permit cannot be granted for failing to comply with the 100-meter setback established in the specific regulation of Decreto Ejecutivo 30131-MINAE-S.\". Likewise, it is reiterated that resolution number DM-A-1275-15 of February 16, 2015, from the Ministry of Health declared the appeal without merit, indicating: \"... The foregoing by virtue of the fact that the Aguas Zarcas Service Station was closed by the Health Authority on November 30, 2005, and since that date it has not had a Sanitary Operating Permit, despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy, granted the respective authorizations for the remodeling of the Service Station, for reasons not attributable to the Administration, represented in the aforementioned Institutions, the construction was paralyzed on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the logbook, and during the period of paralysis of the construction works, the application for processing the operating permit for the Angelitos Children's Daycare Center establishment was received on May 13, 2011, an operating permit granted in accordance with our legal system, since due to the aforementioned paralysis of works at the Service Station, there was no legal certainty of any commercial activity at the site at that procedural moment. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Local Health Governing Area of their intention to continue with the construction, so that, on a certain date, the service station would be ready to request the Sanitary Operating Permit, and given that omission to communicate to the Aguas Arcas Health Governing Area, it was proceeded, as legally corresponds, to grant the permit to the Angelitos Guardería Comprehensive Care Center. However, we cannot go against the freedom to work, Constitutionally regulated, and by that same principle, it is not possible to annul the permit granted to the Comprehensive Care Center, as the appellant intends, and grant the permit to the Service Station, which, due to its inactivity and lack of communication to the Active State Administration, did not alert that the remodeling of the Service Station would resume.\" The reiteration of this quote is necessary insofar as it reveals the clear and forceful reasons that led to the rejection or denial of the request. In said justification, the set of circumstances that were already the object of analysis in the previous sections of this judgment is evidenced, and that therefore makes their reiteration unnecessary. Nevertheless, it is clear that the fundamental cause for ordering the rejection of the cited request was none other than the proximity of the daycare center; however, as has been said, there is no irregularity whatsoever in the licensing given by the CAI to that establishment, considering the reasons already set forth regarding the abandonment and uncertainty regarding the remodeling works, as well as the impossibility that, in the face of that scenario, third-party requests for the exercise of commercial activities could be validly limited, which, for the reasons stated, could not be limited by an eventuality and panorama in which, due to the neglect of the plaintiffs, there was no legitimate definition of the circumstances that required considering the future operation of the station as an unavoidable prerequisite in weighing the relevance or not of the operation of those other businesses or activities. What has just been stated does not diminish in any way due to the fact that the plaintiff previously had, prior to the start of operations of the daycare center, a location permit as well as the constructive permissibility title. Such building licenses were granted on March 06, 2008, by the Municipality of San Carlos (construction permit number P04746), however, it is reiterated, the works fell into abandonment in November 2009 and were reactivated until October 2013, and although it can be said, as the local entity stated, that the renewal of that license was not necessary, this does not directly lead to the granting of the operating permit, since these are diverse procedures, linked to each other, but ultimately, pertaining to diverse competencies, that is, the building matter, by imperative of the Construction Law, assigned to local entities, and in the case of PSFs, competence attributed to the Ministry of Health, in accordance with the General Health Law. So that, regardless of whether the plaintiffs had such administrative authorizations, this does not lead, as intended, to a right to obtain the sanitary permit, given that such aspect requires the satisfaction of the requirements that are pertinent to each type of establishment. On the other hand, the claim of consolidation of land use due to the operation of the station since 1977 is not admissible. As has been pointed out, that establishment was closed in 2005 due to environmental problems derived from leaks in the storage tanks and has not had a PSF since that date. The plaintiffs' thesis would suppose that the mere existence of a certain infrastructure, regardless of its use or exploitation in accordance with the law, supposes a limitation for the building development of adjacent properties or for the exercise of other economic or residential activities. The consolidation referred to, which is protected by canon 28 of the Urban Planning Law, No. 4240, operates insofar as it is a conforming use, with the possession of all the enabling titles that legitimize the structure and activity, but also, it supposes an incidence regarding third parties insofar as it is a business that is operating. In cases like the present, the operation of a service station would suppose considering, for new constructions or operating license applications, the impact in terms of risk for the activity intended to be implemented, it being clear that when the service station is operating, provided that activity is legitimate and is enabled, it holds a priority and acquired situation that deserves to be protected against new requests. However, in this case, while the station had been located on said site since 1977, it had not operated since 2005, and at the date of processing the daycare center and its corresponding permit, there was no detail on the progress or fate of the remodeling works, whereby, it is insisted, the mere expectation of operation was not opposable to said procedure. Then, once that station sought to obtain its operating permit, it had to submit to the regulations and circumstances in force on the date it intended to reactivate the business, especially considering that the state of uncertainty about its operation is a matter that is exclusively attributable to it. From that examination perspective, the questioned act does not harm the doctrine of the intangibility of one's own acts that is reproached, since certainly the location permit had been granted by the Aguas Zarcas Health Area, however, that act was issued in 2008, before the works fell into abandonment, so that at the time of defining the appropriateness of the PSF, such aspect does not determine the invalidity of the denial being challenged. Thus, the illegalities and pathological causes expressed as the basis of the present lawsuit are not shared, reason why, in accordance with what is established by articles 128, 132, 133, 136, 158, 166 and 167 of the LGAP, no nullity whatsoever is observed to declare, whereby the rejection of the lawsuit regarding that particular must be ordered.\"\n\nProceeding of pure law established by the company named Nombre26931 Petróleo Costa Rica S.A., legal identification number CED84851, represented by its general agent without limit of sum, Nombre138955, of French nationality, temporary residency card CED109657, and the entity Nombre138953, legal identification number CED109658, represented by its general agent without limit of sum, Nombre138956, identity card number CED109659, against the State, represented in this proceeding by the prosecutor Julio César Mesén Montoya, identity card number CED2627, and Mrs. Nombre138954, identity card CED109660, under the sponsorship of Nombre138957, identity card number CED109661.\n\nWHEREAS:\n\n1.- On March 2, 2016, the plaintiff entities filed the claim that gave rise to this proceeding so that, in essence, the judgment orders the following, claims that were timely expanded and delimited in the preliminary hearing phase as follows: \"ANNULMENT CLAIM. Based on the factual and legal arguments indicated, this representation requests that the present claim be granted and that the nullity of the following administrative acts be declared: 1.- Nullity of the following enabling certificates (certificados de habilitación) issued by the Consejo de Atención Integral to Mrs. Nombre138954 for the operation of the establishment called Guardería Angelitos: -Enabling Certificate (Certificado de Habilitación) CAI-2142 granted through Agreement number 07-23-2011, Agreement number 47--03-2013, and Agreement number 22-24-2013. -Official letter number CAI-0216-2014 of September 25, 2014, issued by the Consejo de Atención Integral of the Ministry of Health, which resolved the nullity incident filed by Nombre138953. -Resolution number DM-A-1275-15 of February 16, 2015, of the Ministry of Health, which resolved the appeal against official letter CAI-216-2014 and exhausted the administrative channel. 2.- Nullity of Resolution Number DARSAZ-RHN-1157-2014 of September 8, 2014, of the Área de Salud de Aguas Zarcas, which rejected the operating permit for the Estación de Servicio Aguas Zarcas requested by Total, as well as all acts that confirm it: -Resolution number DM-A-1280-15 of March 4, 2015. 3.- As a consequence of the foregoing, it is requested that the closure of the Guardería be ordered. INDEMNIFICATION CLAIM It is requested that the State be condemned in the abstract to pay the damages caused to Nombre138953 and to Nombre26931 Petróleo Costa Rica S.A., amounts that will be proven in the Sentence Execution phase. The damages sought to be compensated are the following: -The lease amount that, according to the lease contract, Nombre138953 was to receive from September 9, 2014, until the moment the Station opens, and which is monthly ¢1,500,000.00 colones. As of March 1, 2016, that amount is ¢26,550,000.00. -Interest calculated based on the legal rate of the Banco Nacional in accordance with Article 1163 of the Civil Code, on the sums that Nombre138953 was to receive monthly from September 9, 2014, until the date the Station opens. As of March 1, 2015, that amount is ¢1,256,080.78 colones calculated in accordance with Article 1163 of the Civil Code. (See calculation table in virtual file on (page 37 of original claim). Claim for Expansion of Claim The following claims are added to the filed claim: In the annulment claim, we request that the agreement of the Consejo de Atención Integral of the Ministry of Health of March 4, 2016, through which the enabling certificate (certificado de habilitación) CAI-86-2016 was granted and which was notified to Guardería Los Angelitos on April 22, 2016, via official letter CAI-009-2016, also be annulled.\" (Images 5-7 of the file, expansion of the claim at images 1450-1451)\n\n2.- Having been granted the legal transfer, the State answered negatively and raised the defenses of expiration of the action (caducidad de la acción) and lack of right. (Images 113-152 of the file) For her part, the co-defendant Nombre138954 answered in the terms recorded at images 159-181 of the file. She raised the defense of expiration of the action (caducidad de la acción) and that of lack of right.\n\n3.- The preliminary hearing established in Article 90 of the Código Procesal Contencioso Administrativo, which is recorded in the digital system of this Office, was held on March 28, 2017, with the attendance of all parties. As there was no evidence to produce, in accordance with numeral 98.2 of the Código Procesal Contencioso Administrativo, the matter was declared one of pure law and the parties rendered their conclusions. The defense of expiration of the action (caducidad de la acción) was reserved to be resolved in the judgment. (Folios 4-11 of the principal file)\n\n4.- The file was remitted to this Section VI for the issuance of the pertinent ruling on November 6, 2017, as recorded in the detail of the Sistema Escritorio Virtual, in which the entirety of the principal file is recorded. In the proceedings before this Court, no nullities that must be corrected have been observed.\n\nDrafted by Judge Garita Navarro with the affirmative vote of Judge Fernández Brenes and Judge Hess Araya;\n\nCONSIDERING.\n\nI.- Proven facts. The following are of relevance for the resolution of this proceeding:\n\nREGARDING GUARDERÍA ANGELITOS. 1) On May 13, 2011, Mrs. Nombre138954 submitted to the Área Rectora de Aguas Zarcas of the Ministry of Health an application for the authorization to operate a comprehensive care center (centro de atención integral) called \"Angelitos Guardería,\" to carry out the activity of a children's day care center, with an area of 420 m2. The documents attached with the application were: -sworn declaration for procedures for requesting a sanitary operating permit; -incorporation of the establishment's technical responsible person before the respective professional association; and -proposal for the enabling (habilitación) of a comprehensive care center for boys and girls. (First uncontroverted fact of the claim, folios 1-20 of the administrative file CE-024, images 2274-2280 of the file) 2) On May 23, 2011, the official Nombre138958, of the Área Rectora de Salud Aguas Zarcas, Región Huetar Norte of the Ministry of Health, carried out a visual inspection to evaluate the physical-sanitary conditions of the Guardería Angelitos. In the report drawn up for this purpose, it is indicated that the evaluation instrument for Centros de Atención Integral was applied. In said measurement instrument, in numeral 4.3 \"Physical Structure,\" section 4.3.1.2, subsection b) called \"High-risk centers (according to the Comisión Nacional de Emergencias) and Ministry of Health which directly affect users,\" a value of 1 was recorded. (Report and inspection report at folios 21-30 of the administrative file CE-024) 3) Through official letter MS-RHN-ARSAZ-ERS-663-2011 of May 24, 2011, the official Nombre138958 informed the Directorate of the Área Rectora de Aguas Zarcas that after having applied to the Guardería Infantil Angelitos the evaluation instrument \"Evaluation Questionnaire for Care Centers for Children and Adolescents (sic), Daytime modality,\" said establishment was not operating until it had the corresponding permit, so the following aspects could not be evaluated: -there is no INS insurance policy because they do not have any users; -the number of people attended was not indicated because they do not have any users; -the maximum capacity of the center is 30 users; -point 4.5 Promotion of development and 4.6 Health care of the Standard could not be evaluated because they had not started activity. She clarified that the evaluation team focused more on the physical plant. (Folio 31 of the administrative file CE-024) 4) Through official letter MS-RHN-ARSAZ-ERS-821-2011 of June 29, 2011, the official Nombre138958 reported, as relevant to this proceeding, that she proceeded to update the follow-up visit carried out on May 23, 2011, because on that date they had not finished remodeling the infrastructure, and that she appeared at the site accompanied by Lic. Faustino Godoy Cortez on June 29, 2011, for the purpose of evaluating the points that had improved in the day care center with respect to the Standard for the Enabling (Habilitación) of Centros de Atención Integral. She detailed the points that were not fully compliant with respect to said standard. In Item 4.3.1.2 regarding the aspect of contamination sources of diverse nature, she justified: \"Previously in the evaluation, a code of 0.5 had been assigned due to proximity to a paint workshop. However, a wall has been built that does not allow direct communication with the day care center. Therefore, it is considered suitable for the requested activity.\" She concluded that the evaluation team considered it viable to grant the sanitary operating permit for the activity requested to the Guardería Infantil Angelitos. (Folios 147-156 of the administrative file CE-024) 5) Through Agreement number 07-23 of August 10, 2011, the Consejo de Atención Integral (hereinafter \"the CAI\") enabled (habilitó) the Day Care Center as a comprehensive care center (centro de atención integral), to serve minors from 2 to 6 years of age, from August 10, 2011, to August 9, 2012, that is, for a period of one year. This was communicated to the Dirección Regional de Salud Huetar Norte through official letter CAI-0485-2011 of August 10, 2011. (Folios 159-160 of the administrative file CE-024) 6) On July 24, 2012, Mrs. Nombre138954 submitted a renewal application for the operating permit indicated in the preceding sections. In the work area item, she recorded a detail of 420 m2. (Folios 164-166 of the administrative file CE-024). 7) Inspector Nombre138958 of the Área Rectora carried out the corresponding inspection on July 26, 2012, and the technical report MS-RHN-ARSAZ-ERZ-987-2012 of July 27 of the same year was generated. In this report, it is stated that according to the results obtained in the evaluation, she estimated that the physical-sanitary and safety conditions were compliant for the renewal of the sanitary operating permit by the CAI. In said measurement instrument, in numeral 4.3 \"Physical Structure,\" section 4.3.1.2, subsection b) called \"High-risk centers (according to the Comisión Nacional de Emergencias) and Ministry of Health which directly affect users,\" a value of 1 was recorded. (Folios 170-181 of the administrative file CE-024) 8) Through Firm Agreement No. 47 recorded in Act No. 3 of the session held on February 28, 2013, the CAI agreed to enable (habilitar) the Day Care Center for 1 year \"to provide comprehensive care services for up to 30 boys and girls from 2 years to 6 years of age and under the Private alternative of Temporary Daytime Care modality in a schedule from 7:00 a.m. to 5:00 p.m.\" In the agreement, box 7 was marked, indicating that for permits of less than one year, an enabling certificate (certificado de habilitación) is not issued. Likewise, box 10.1 Others was marked, with the following indication: \"a. To the administered party, within a period of 10 business days, deliver the 25 insurance policies with the appropriate amount as stipulated in the regulation to the Law. b. ARS must carry out follow-up on what was agreed in point #11 subsection A of this agreement and inform the CAI. Once what was requested is delivered, the permit will be extended to 3 years. (...)\". (Folios 188-190 of the administrative file CE-024) 9) In a written submission presented on May 9, 2013, Mrs. Nombre138954 indicated to the Ministry of Health: \"In view that we are preventing in the future an expansion of the intake of children and considering that we have spaces that were not taken into account in the previous inspection, we most respectfully request that you visit us for the aforementioned purpose.\" (Folio 187 of the administrative file CE-024) 10) Through official letter MS-RHN-ARSAZ-ERS-658-2013 of May 27, 2013, from the Health Regulation Team of the Área Rectora Aguas Zarcas, the expansion request alluded to in the previous section is analyzed and it is recommended: \"-Request the permit holder to present a sketch indicating the delimitation by area according to activity and in accordance with the provisions in the Standard for the Enabling (Habilitación) of Centros de Atención Integral, indicating the existing free spaces for the service users (...)\". In said official letter, in addition, several non-conformities were pointed out, among them: \"-It has only one sanitary service for visitors and administrative staff, which does not comply with the provisions of Law 7600. -By the administrator, Mrs. Nombre138954, it is indicated that some areas are used for multiple purposes, a situation that is contrary to what is stipulated in the Standard for the Enabling (Habilitación) of Centros de Atención Integral, which establishes that areas allocated for educational and recreational activities, personal hygiene space for users, staff and visitors, exclusive space for nutrition, space for outdoor and/or indoor play must be independent from each other and with clearly differentiated physical spaces.\" (Folios 192-193 of the administrative file CE-024) 11) On June 4, 2013, Mrs. Nombre138954 submitted a note stating that she was attaching the documents supporting the requirements requested in the last visit carried out. In this sense, she provided a sketch detailing that the infrastructure has a Nombre26931 area of 465 m2. (Folios 194-203 of the administrative file CE-024).\n\n12) Through report MS-RHN-ARSAZ-ERS-710-2013 of June 11, 2013, from the Health Regulation Team of the Aguas Zarcas Rector Area, it is indicated that from the inspection carried out on June 11, 2013, it is concluded that the physical sanitary and safety conditions of the Angelitos daycare center are in accordance with the provisions of the Standard for the Licensing of Comprehensive Care Centers, \"...The foregoing by reason of the expansion of the existing space (sic) at the site, the inclusion of two more sanitary facilities and the continuous improvement of the daycare center with respect to the recommendations issued (sic) by this Ministry, it is considered that said (sic) establishment called Angelitos Children's Daycare Center has the capacity to increase the user population to a total of 45, i.e., 15 more users than the initially approved total.\". (Folios 204-205 of administrative file CE-024) 13) By official letter CAI-1009-2013 of October 4, 2013, the CAI remits to the Huetar Norte Regional Health Directorate, for its knowledge and delivery to the administered party, original certificate No. 2142 related to the establishment called Angelitos Daycare Center, since the center complied with what was requested in final agreement No. 47-03-2013. (Folio 213 of administrative file CE-024) 14) In a note presented on October 10, 2013, Ms. Nombre138954 requests an inspection as the facilities have been expanded with the objective that the granted permit be for more students. She attached a sketch of the expansion carried out and a general description of several areas of the daycare center, for a total area of 1095.35 m2. (Images 2195-2212 of the file) 15) On December 2, 2013, the official Nombre138958 carried out the inspection of the Daycare Center and prepared a sketch indicating a new area composed of: a) 72 m2 of new didactic area, b) 46.88 m2 of new recreational area, c) 31.8 m2 of new area for dramatization, d) 40.5 m2 of new didactic classroom; 211.56 m2 of new recreational area, for a total new constructed area of 402.74 m2, plus the area of 3 new sanitary facilities where the square meters are not indicated. (Folios 215-216 of administrative file CE-024) 16) Through email sent by the official Nombre138958 to Dr. Nombre138959 on December 2, 2013, she indicated a total area of didactic areas of 203.6 m2 and 483.24 m2 of recreational areas. (Folios 219-220 of administrative file CE-024) 17) Through final agreement No. 22-24 of December 6, 2013, the CAI ordered: \"Approve the increase of installed capacity as follows: License for 3 years from 2-28-2013 to 2-27-2016 to attend up to 75 children from 2 years to 6 years from 7:00 am to 5:00 pm. Licensing certificate No. 2142 is remitted with the approved modifications. The administered party must deliver the current licensing certificate to proceed with its annulment.\" (Folio 224 of administrative file CE-024) 18) That the CAI issued licensing certificate CAI-2142 in favor of Angelitos Daycare Center, located in Aguas Zarcas, from the Francis restaurant, 100 meters north, detour road, to provide comprehensive care services for up to 30 boys and girls, from 2 years to 6 years, under the private alternative mode of daytime temporary care in a schedule from 7:00 am to 5:00 pm, according to final agreement No. Placa13487 that is recorded in act No. 03 of the session held on February 28, 2013, with the indication that said permit expired on February 27, 2016. (Folio 211 of administrative file CE-024) 19) Through final agreement No. 2-10 of 2014, of April 25, 2014, the CAI ordered: \"It is agreed to request a technical criterion from SETENA to determine if fuel service stations may represent a source of eventual risk and danger to the safety and well-being of children who are attended in comprehensive care centers that might be located near a service station. Likewise, information is requested on whether the service station 'Servicentro Aguas Zarcas', located in Aguas Zarcas de San Carlos, province of Alajuela, complies with the current safety regulations for this type of centers.\" (Folio 221 of administrative file CE-024) 20) Through final agreement No. 48-18 of 2014, of August 8, 2014, the CAI ordered: \"AGREEMENT NO. 48: In attention to the nullity incident presented by Nombre138956, legal representative of the company Nombre138953, against final agreement No. 47-03-2013 and the licensing permit granted to the Angelitos Daycare Center, seeking the best interest of the child and in fulfillment of the purposes and objectives of the Comprehensive Care Council to guarantee the right of underage persons to participate in comprehensive care programs when their parents, mothers, or legal representatives require it, ensuring that all requirements established in the respective regulations for each care modality are met, in accordance with Article 3 of Law 8017 (...) and taking into consideration the reports remitted to this Council by the interested parties and consulted entities, it is agreed to declare the cited incident without merit taking into consideration the following: 1. At the time of carrying out the inspection to assess compliance with the comprehensive care center standard, the Aguas Zarcas Health Rector Area did not find real and present objective elements of the operation of 'Servicentro Aguas Zarcas' located (sic) next to the 'Angelitos Daycare Center' comprehensive care center that could make it a focus of contamination or risk that could endanger the health and integrity of the children using the center. Moreover, it was reported at the time that the aforementioned fuel service station has not been in operation for many years, maintaining that condition to date. 2. The fact that the fuel service station was planning, at an undefined time, to resume operations is a future and uncertain event, since to restart the operation of the establishment they would have to fulfill a series of conditions, including obtaining the corresponding permits from each of the entities that the legislation grants competence for that purpose. 3. The Comprehensive Care Council cannot make resolutions taking into consideration future and uncertain suppositions, as this would be to the detriment of the objective practice of public function and the rights of citizens to a prompt response from the administration in accordance with current legislation. For all the foregoing, the operating permit of the 'Angelitos Daycare Center' comprehensive care center is maintained under the terms established in final agreement No. 47-03-2013 of February 28, 2013.\" (Folio 222 of administrative file CE-024) 21) The space initially occupied by the Angelitos Daycare Center was limited to the estate of the Partido de Alajuela, registration Placa26284. With the expansions, the Angelitos Daycare Center extended to the estate of the Partido de Alajuela number Placa26285. (Fact 14 of the complaint, not contested by the co-defendant Nombre138954.)\n\nREGARDING THE SERVICENTRO AGUAS ZARCAS STATION.\n\n22) The entity Nombre138953 is the owner of the estate of the Partido de Alajuela, registration number Placa26286, located in Aguas Zarcas de San Carlos. (Certification at image 2473 of the file) 23) That in official letter CS-022-77 of March 7, 1977, the then Acting Presidency of the Safety and Hygiene Council of the Ministry of Labour and Social Security indicates to Mr. Nombre138960, Aguas Zarcas Service Station: \"I hereby inform you that the Occupational Safety and Hygiene Council, at the session held on the twenty-fifth of February of this year, reviewed your application and plans for the installation of a Service Station in Aguas Zarcas de San Carlos. / This body studied the plans you presented for this purpose and, finding the project adjusted to the regulatory provisions and not constituting a contravention of the installation safety standards, decided to grant the requested permit, as presented in the plan.\" (Images 2191-2192 of the file) 24) On November 30, 2005, by virtue of processing a complaint filed on that same date, the Environmental Protection Unit of the Ministry of Health ordered the closure of the commercial premises named Servicentro Aguas Zarcas S.A., indicating: \"The foregoing is due to the occurrence of a fuel leak event, which motivated a series of administrative measures to prevent damage to the health of the population and the environment, including the closure of the establishment. For which it was appropriate to place on: THE MAIN SIDES OF THE CONSTRUCTION the respective seals, which indicate the legend 'CLAUSURADO' (CLOSED), Ministry of Health. (...)\". (Folios 26, 40-41 of administrative file A-028) 25) Through act No. R-DGTCC-723-2005 of 15:00 hours on December 13, 2005, the General Directorate of Transport and Fuel Commercialization of MINAE (hereinafter DGTCC), ordered the Costa Rican Oil Refinery, Commercial Relations Department, to suspend the sale of hydrocarbon derivatives to Servicentro Aguas Zarcas. In this regard, the operative part of the act stated: \"...It must be clear that this order to RECOPE operates independently of the precautionary measure dictated in the preceding recital (sic) -referring to the following point-, since it has been verified, according to the information in the file, that the service station lacks an Operating Permit, therefore, even if it were proven that it is not the source of contamination, it will always remain closed until it has this (sic) requirement and the environmental viability approved by SETENA, in addition to those indicated in the second recital of this resolution.(...)\". (Folios 42-45 of administrative file A-028) 26) Through official letter DGTCC-1924 of December 9, 2005, from the DGTCC, Servicentro Aguas Zarcas is notified of the result of report DGTCC-INF-04-12-05 from the Department of Engineering and Oversight, concerning the inspection carried out at Servicentro Aguas Zarcas, which revealed a series of deficiencies from which it was concluded that said station did not comply with the stipulations of Decreto MINAE-30131, making it necessary to retrofit the station, in addition to providing the technical data sheets of the storage tanks to verify their age, and if (at that date) they had more than 20 years of operation, it was deemed necessary to replace them, highlighting that according to the information gathered, the regular gasoline and diesel tanks had already exceeded that term. (Folios 46-49 of administrative file A-028) 27) Through official letter DGTCC-878-06 of July 17, 2006, the DGTCC indicates in response to a petition filed by Mr. Nombre138961: \"...In any case, I must point out that upon reviewing the file, the useful life of the tanks has already expired, so what legally proceeds is to replace the tanks. The application for this process must also be submitted (...) you must also previously provide the Environmental Viability of the project and comply with all the requirements outlined in Decreto Ejecutivo 30.131-MINAE-S.\". (Folio 85 of administrative file A-028) 28) Through official letter ARAZ-UPAH-IT-578-2007 of 11, 2007, the Environmental Protection Unit of the Ministry of Health informs the Health Area Directorate about the inspection carried out on that same date on the remodeling being conducted at Servicentro Aguas Zarcas and points out that “It is visualized that a large part of the construction where the old gas station operated has been demolished and that fillings with ballast material are being carried out for the preparation of the land where the new commercial premises will be built in the future./ Mention is made to Mr. … that for the erection of the new construction, the respective permits required by current Legislation for this type of project must be obtained, so he is warned that in case of non-compliance, the appropriate closure will be carried out.” (Folio 87 of administrative file A-028) 29) Through resolution R-DGTCC-642-2007-MINAE of September 11, 2007, the DGTCC ordered: “First: To grant Plan Approval to the company Nombre138953., legal ID CED109658 (…), for the remodeling of the service station with the commercial name of Estación de Servicio Aguas Zarcas, located in the canton of Aguas Zarcas, province of Alajuela. Second: The company has a period of one year from the notification of this resolution to complete the construction works; if the period expires without completion, they must process the resealing of plans. Before placing the tanks, they must request an inspection from the Engineering Department to verify the condition of the pit, the implementation, the cathodic protection, and others. And once the works are completed, they must request the final inspection from this Directorate. (…)” (Folios 92-93 of administrative file A-028) 30) On September 26, 2007, Ms. Nombre138956, representing Nombre138953., submitted to the Environmental Protection Unit, Huetar Norte Region, an application for a construction permit for remodeling a service station. (Folio 106 of administrative file A-028) 31) On October 18, 2007, Mr. Nombre138962, in his capacity as president of the entity called Gasolinera Aguas Zarcas S.A., filed a formal complaint with SETENA regarding new construction on the lands of the Estación de Servicio Aguas Zarcas. (Folios 108-109 of administrative file A-028) 32) Through official letter ARAZ-UPAH-IT-692-2007 of October 25, 2007, from the Environmental Protection Unit, an assessment report is issued regarding the location permit application for the service station activity submitted by Nombre138953. In that act, it is recommended: “-To Temporarily Deny the Location Approval for the Service Station Remodeling Activity requested by Nombre138953. until the uncertainties established in this report are clarified. –For the future approval of the location permit, you must modify the application, specifying the type of project, since in the Ministry's opinion it is not considered a Remodeling. (…)” (Folios 123-129 of administrative file A-028) 33) By official letter MS-RHN-DARAZ-563-2007 of October 25, 2007, the Aguas Zarcas Rector Area ordered denying the location approval for the activity requested by Nombre138953., until the uncertainties established in technical report ARAZ-UPAH-IT-692-2007 of October 25, 2007, from the Environmental Protection Unit, are clarified. (Folios 130-131 of administrative file A-028) 34) Through act No. DIC DI-385-2007 of September 18, 2007, the Engineering Department of the Municipality of San Carlos attests, in relation to the application made by Nombre138953 regarding the estate drawn on cadastral plan A-30631-77, that: \"The zone where this property is located is not included within the ordering plan of Ciudad Quesada; for the requested use as a service station, it must comply with the provisions of chapter XIX service stations of the Construction Regulations regarding the requested use. Must present the approval of SETENA, MINAE, MOPT, Ministry of Health.\" This was later reiterated in location resolutions DIC Placa26287 of December 19, 2012, and DIC Placa26288 of February 13, 2014. (Folio 102 of administrative file A-028, images 2394-2397 of the file) 35) Through official letter DGIT-ED-4256-2007 of November 13, 2007, the Department of Studies and Designs of the Ministry of Public Works and Transport authorizes the design of the accesses for the Total Service Station project, in Aguas Zarcas, cadastral plan A-30631-77. (Images 2420-2423 of the file) 36) By official letter DARSAZ-RHN-048-2008 of January 31, 2008, the Aguas Zarcas Rector Area maintained the criterion of denying the location approval for the service station remodeling activity application submitted by Nombre138953., deeming that it requires an Environmental Impact Assessment. (Folios 141-143 of administrative file A-028) 37) On February 7, 2008, Nombre138953. filed an appeal for revocation with a subsidiary appeal against act DARSAZ-RHN-048-2008 of January 31, 2008. (Folios 151-153 of administrative file A-028) 38) By resolution no. AJ-RHN-006-2008 of 09:00 hours on February 13, 2008, the Huetar Norte Region ordered the rejection of the appeal for revocation referred to in the previous paragraph. The appeal was rejected by act DM-J-1627-08 of 14:30 hours on March 10, 2008, from the Ministry of Health. (Folios 172-191, 248-258 of administrative file A-028) 39) Through official letter MS-RHN-ARSAZ-URS-432-2008 of June 3, 2008, the Environmental Protection Unit informs the Aguas Zarcas Health Area Directorate that on the land where the Nombre138953 Service Station was located, earthworks and demolitions were carried out; no construction in progress is observed, such as storage of materials or construction; the environmental viability from Setena has not been presented, therefore they do not have a construction permit and the rejected construction plans are still in the office, having not been withdrawn. (Folios 264-265 of administrative file A-028) 40) Through resolution No. 2008-2008-SETENA of 11:00 hours on July 10, 2008, referring to the \"Servicentro Aguas Zarcas Remodeling Project, file No. D1-0703-2008-SETENA\", that administrative authority, in the fifth operative paragraph, granted environmental viability to the Servicentro Aguas Zarcas remodeling project, opening the Environmental Management stage. Likewise, in the sixth paragraph, it stated: \"SIXTH: The validity of this viability will be for a period of TWO Years for the start of activities / works or project. In the event that activities do not start within the established time, the provisions of current legislation will be applied.\". (Folios 277-282 of administrative file A-028) 41) On August 8, 2008, the Aguas Zarcas Health Rector Area issued location permit No. MS-RHN-ARSAZ-PU-115-2008 for the service station remodeling activity, property of Nombre138953., cadastral plan A-30631-77. That act indicates that the conditions under which the permit is granted were established in resolution MS-RHN-ARSAZ-URS-625-2008 of August 6, 2008, the latter of which indicates, among the evaluated aspects, that it is a commercial zone that complies with distances established by law regarding surface water sources, does not present risks regarding landslides, or floods. (Folios 309-311 of administrative file A-028) 42) On March 6, 2008, the Municipality of San Carlos issued construction permit number Placa26289 in favor of Nombre138953., expiring (apparently) in March 2010. (image 2425 of the file) 43) On December 17, 2008, the Huetar Norte Region of the Ministry of Health, through official letter URS-RHN-336-2008, approved the construction plans for the remodeling and expansion of the Service Station. Through official letter CURSRHN-337-2008 of December 17, 2008, the Huetar Norte Region of the Ministry of Health communicated to Dr. Nombre138963 of the Aguas Zarcas Health Area that the plans had been approved and sent them to him so that they would form part of the Station's file archives in that Health Area (Folios 336-337 of administrative file A-028). 44) That in the technical direction visit report No.\n\n62550 of May 20, 2009, the professional responsible for the execution of the work, Nombre138964, indicates that on that date the technical annotations referring to the remodeling of the service station owned by Nombre138953 officially began. (Image 2432 of the file)\n\nBy official communication P-100-2009 of August 31, 2009, Nombre138953 requested the DGTCC to schedule an inspection of the tank placement for the remodeling project of the aforementioned service station, under the terms that resolution R-DGTCC-642-2007 had stipulated. (Image 2435 of the file) **45)** In official communication DGTCC-INF-20-11-09 of November 17, 2009, the DGTCC issued an inspection report as requested in the previous item and determined to ask the petitioner for a photographic record of what had been built up to that date and an updated schedule of the remaining activities. The content of this report was made known to the applicant through official communication DGTCC-1060-09 of November 17, 2009. (Images 2436-2440 of the file) **46)** That the last record of actions in the construction log (bitácora constructiva) is dated November 10, 2009, and notes that in the visit made that day, it was indicated that the construction was halted, the fuel tanks had been inserted and completely covered with sand, and the flexible piping from the tank area to the islands had also been inserted. A note was left that the guard had indicated that construction would surely not resume until the following year from that date. (Image 2442 of the file) **47)** By official communication P077-2011 of August 3, 2011, Nombre138953 informed the DGTCC that construction activities would resume, stating that the reason for the delay was purely economic. In response, through resolutions R-DGTCC-610-2011-MINAET at 8:00 a.m. on August 10, 2011, and R-702-2011-DGTCC-MINAET of September 16, 2011, the DGTCC ordered Nombre138953 to carry out the process for the re-stamping (resello) of construction plans. (Images 2449-2454 of the file) **48)** By official communication P-064-2013 of February 28, 2013, Nombre138953 requested the re-stamping (resello) of the construction plans. (Images 2464-2465 of the file) Through official communication DGTCC-AI-30-03-13 of March 7, 2013, the Hydrocarbons Directorate General recommended granting the re-stamping (resello) of the construction plans for the remodeling and completion of the works for the Aguas Zarcas Service Station project. It was warned that in the event of any omission in the plans, the provisions of Decree 30131-MINAE-S must be complied with, and that the granting of such plan approval did not exclude the approval of permits from other corresponding entities. (Images 2476-2478 of the file) **49)** On September 20, 2013, Nombre138953 and Nombre26931 Petróleo Costa Rica (Total) signed a formal contract in which they documented the lease agreement (contrato de arrendamiento) on September 20, 2013. That contract had the following purpose: \"*FIRST. PURPOSE OF THE CONTRACT. The purpose of this Contract is to establish the terms and conditions under which Nombre26931 will finish building on the Property a service station intended for the sale of hydrocarbon fuels and its inherent activities, such as, but not limited to, a lubrication center, quick mechanic workshop, car wash, convenience store, and restrooms [the \"Service Station\" (Estación de Servicio)]. Once the Service Station is built, Nombre138953 will lease to Nombre26931 and Nombre26931 will lease from Nombre138953 the Property including the Service Station.*\" (Images 2159-2169 of the file) **50)** Through official communication SG-ASA-0303-2014 of March 17, 2014, SETENA indicated to the Aguas Zarcas Rector's Area that the remodeling project of the service station in Aguas Zarcas had an environmental viability license (licencia de viabilidad ambiental) through resolution 2008-2008-SETENA of July 10, 2008. Furthermore, that the granting of that viability did not imply the right to obtain the respective operating permit, as it is the competence of the Ministry of Health to define to which activities it may grant said permit. It added that the works were started before the two-year expiration period established by Article 46 of the Environmental Impact Assessment Procedures Regulation (Reglamento de Procedimientos de Evaluación de Impacto Ambiental) had elapsed. It noted that it was not necessary to obtain environmental viability for the Angelitos Daycare (Guardería Angelitos), unless it has the characteristics indicated in Article 17 of the Organic Environmental Law (Ley Orgánica del Ambiente). It emphasized that said environmental license did not imply an acquired right to develop the activity. (Folios 385-386 of administrative file A-028) **51)** In inspection record No. 62550 of April 18, 2014, the responsible professional Nombre138965 states: \"*The station is at 100% completion. It is verified that the improvements requested in the visit of February 3, 2014, were made. The concrete slabs have their respective epoxy coating and the railing for the disabled ramp is finished. The project is considered finalized.*\" (Image 1744 of the file) **52)** On June 2, 2014, through request number 290-2014, Nombre138953, in her capacity as owner of the Property, applied before the Aguas Zarcas de San Carlos Health Rector's Area for the sanitary operating permit (permiso sanitario de funcionamiento) of the Station. (Images 1748-1752 of the file, folios 417-421 of administrative file A-028) **53)** Through official communication MS-RHN-ARSAZ-ERS-824-2014 of June 18, 2014, an inspection and technical assessment report on the physical-sanitary and safety conditions of the Aguas Zarcas Service Station owned by Nombre138953 was issued, addressed to the Directorate of the Aguas Zarcas Rector's Area, in which a series of non-conformities were presented, based on which it was recommended: \"*RECOMMENDATIONS - Therefore, considering the risk, primarily to such a vulnerable population as it is the case of minors, whose health and safety corresponds to the state (sic) to protect such right, it is recommended to deny the application process for the Sanitary Operating Permit and to follow up on the fulfillment of the non-conformities found. (...)*\". (Folios 435-451 of administrative file A-028) **54)** Through official communication MS-RHN-ARSAZ-ERS-830-2014 of June 19, 2014, a follow-up report was issued for the first-time application for a sanitary operating permit (permiso sanitario de funcionamiento) for the Nombre26931 Aguas Zarcas Service Station, in which a series of detected non-conformities were pointed out, based on which it was concluded that the operating permit should not be issued until those non-conformities are corrected. It made the same recommendation regarding minors referred to in report MS-RHN-ARSAZ-ERS-824-2014 of June 18, 2014. (Folios 445-451 of administrative file A-028) **55)** Through official communication DARSAZ-RHN-728-2014, of June 23, 2014, notified to Nombre138953 on the same date, the Director of the Rector's Area – Mr. Nombre138963 – denied the application filed for evidencing a series of breaches of legal regulations. (Folios 455-462 of administrative file A-028) **56)** Through official communication AM-0862-2014 of July 8, 2014, the Municipal Government (Alcaldía Municipal) of San Carlos responded to a request made through official communication DARSAZ-RHN-722-2014 from the Rector's Area, an act in which it states corely: \"*Therefore, in support of the foregoing, this Legal Directorate finds no illegality or contradiction with the current legal regulations, as well as the indicated pronouncements of both the Constitutional Chamber and the Administrative Litigation Court Section II and Section III regarding the land-use permits (permisos de uso de suelo) issued by the Engineering Directorate of this Municipality, as it has acted in accordance with the law.*\" (Folios 464-473 of administrative file A-028) **57)** Through official communication DI-158-2014 of July 14, 2014, the Department of Engineering and Urbanism of the Municipality of San Carlos informs Nombre138953 that regarding the request for an update of construction permit Placa26289 issued on March 6, 2009: \"*Construction permits are valid for one year to start the works; after that time if the works have not started, said construction permit must be renewed, but if the works began within that period, its renewal should not be necessary.*\" (Image 1801 of the file) **58)** By official communication SG-DEA-2262-2014-SETENA of July 16, 2014, SETENA informs the CAI: \"*...any type of activity involving the handling of fuels always carries an associated risk due to the nature of the substances; however, for this type of service stations, specific procedures and regulations are managed that tend to regulate and minimize the risks that said activity may represent. Such is the case of Decree 30131-MINAE-S (...) said decree establishes all the guidelines that service stations must comply with for proper operation and especially for environmental protection and the safety of persons. On the other hand, it corresponds to the Hydrocarbons Transport and Commercialization Directorate General (Dirección General de Transporte y Comercialización de Hidrocarburos), a dependency attached to the Ministry of Environment and Energy, which has the governing role of the sector and which, together with the Ministry of Health, directly and jointly monitors that fuel service stations do not constitute a source of risk to human safety. (...)*\". (Image 1809 of the file) **59)** On August 13, 2014, Nombre138953 submitted a written statement to the Health Rector's Area in which she alleges having adopted the corrective actions requested by the Health Area. (Folios 474-483 of administrative file A-028) **60)** In inspection record No. Placa26290 of August 13, 2014, the responsible professional Nombre138965 records that on that date an additional visit was made to review the improvements requested by the Ministry of Health in resolution DARSAZ-RHN-728-2014. (Image 1745 of the file) **61)** On August 13, 2014, Nombre26931, in its capacity as lessee (arrendataria), requested the operating permit for the operation of the Service Station. (Folios 496-501 of administrative file A-028) **62)** Through official communication MS-RHN-ARSAZ-ERS-1196-2014 (RHN-URS-054-2014 of September 4, 2014), the Health Regulation Team of the Rector's Area issued a follow-up report to assess the conditions for the operation of the Nombre26931 Aguas Zarcas Service Station. In said act, it is concluded, among other aspects: \"*Given that we, as health authorities, are public officials and mere trustees of the Law, and therefore cannot make exceptions in its application, the sanitary operating permit cannot be granted for failure to comply with the 100-meter setback (retiro) established in the specific regulations of Executive Decree 30131-MINAE-S.*\", therefore, it recommended not granting the requested sanitary permit. (Folios 508-519 of administrative file A-028) **63)** Through official communication DARSAZ-RHN-1157-2014 of September 8, 2014, the Rector's Area resolved to deny the first-time application for a sanitary operating permit formulated for the Nombre26931 Aguas Zarcas Service Station. (Folios 520-521 of administrative file A-028) **64)** Through official communication DARSAZ-RHN-1549-2014 of December 19, 2014, Doctor Nombre138963 informs that \"*all the non-conformities detected and noted (sic) in official communication DARSAZ-RHN-1157-2014 have already been corrected, with the exception of the distance*\". (Folio 538 of administrative file A-028) **65)** The company Nombre26931 filed an appeal (recurso de apelación) on September 17, 2014, before the Office of the Minister of Health against the resolution issued through official communication number DARSAZ-RHN-1157-2014, seeking a declaration of nullity of said act and an order for the issuance of the operating permit. It was argued that the construction permit for the service station and the location approval (visto bueno de ubicación) predated the application of the Angelitos Integral Care Center Daycare (Centro de Atención Integral Angelitos Guardería); that said daycare did not have the legal requirements to operate and that in accordance with Decree 30131-MINAE-S, the perimeter grids of the fuel storage area were not required, despite which it claimed to have complied with this requirement. (Images 1816-1820 of the file) **66)** That the appeal referred to in the previous point was rejected by the Minister of Health through official communication number DM-A4815-14 of November 14, 2014, as she indicated that the appeal was time-barred (extemporáneo). (Folios 530-534 of administrative file A-028) Against said rejection, a review appeal (recurso de revisión) and an absolute nullity pleading (incidente de nulidad absoluta) were filed. (Images 2129-2131 of the file) **67)** Through resolution number DM-A1280-15, of March 4, 2015, the Ministry of Health accepted the nullity pleading for corroborating that the appeal was filed on time, but rejected the appeal. (Folios 572-597 of administrative file A-028) **68)** On February 27, 2014, Nombre138953 filed a nullity pleading (incidente de nulidad) against agreement number 07-23 of August 10, 2011, agreement number 47 of February 28, 2013, qualification certificate (certificado de habilitación) number CAI-2142 of December 6, 2013, and agreement number 22-24 of December 6, 2013, all issued by the CAI, for having enabled the operation of the Daycare despite the evident and manifest existence of the Station less than fifty meters away, and for not having the construction permits required in the same CAI Qualification Standard (Norma Habilitación CAI). (Images 2075-2084 of the file) **69)** Through official communication number CAI-0216-2014 of September 25, 2014, the CAI communicated that through agreement number 48-18-2014, the nullity pleading (incidente de nulidad) presented by Nombre138953 was rejected, claiming that the resumption of the service station's operation was a future and uncertain event and that the CAI cannot make resolutions based on future and uncertain assumptions. (Images 2054-2055 of the file) **70)** Nombre138953 filed an appeal (recurso de apelación) on September 8, 2014, before the Office of the Minister of Health against agreement CAI-48-18-2014. (Images 2058-2069 of the file) **71)** Through resolution number DM-A-1275-15 of February 16, 2015, the Ministry of Health dismissed the appeal filed by Nombre138953 against agreement CAI-48-18-2014. In this sense, it indicated in the operative part that said rejection was based on the following: \"*... The foregoing by virtue of the fact that the Aguas Zarcas Service Station was closed by the Sanitary Authority on November 30, 2005, and since that date has not had a Sanitary Operating Permit (Permiso Sanitario de Funcionamiento), despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy granted the respective authorizations for the remodeling of the Service Station, for causes not attributable to the Administration, represented in the aforementioned Institutions, the construction was paralyzed on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the construction log (bitácora) and during the period of paralysis of the construction works, the application for processing the operating permit for the Angelitos Children's Daycare establishment was received on May 13, 2011, an operating permit granted in accordance with our legal system since, due to the aforementioned paralysis of works at the Service Station, there was no legal certainty of any commercial activity at the location at that procedural moment. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Local Health Rector's Area of their intention to continue with the construction, so that by a certain date, the service station would be ready to apply for the Sanitary Operating Permit, and in the face of that omission to communicate with the Aguas Zarcas Health Rector's Area, it was proceeded as legally appropriate to grant the permit to the Angelitos Integral Care Center Daycare. Now then, we also cannot act against the freedom to work, regulated Constitutionally, and by that same principle, it is not possible to annul the permit granted to the Integral Care Center, as the appellant intends, and grant the permit to the Service Station, which, due to its inactivity and lack of communication to the Active Administration of the State, did not alert that the remodeling of the Service Station would resume.*\" (Folios 549-571 of administrative file A-028) **72)** That by agreement number 16-4 of March 4, 2016, the Ministry of Health renewed the operating permit for the Angelitos Daycare (Guardería Los Angelitos) through the granting of qualification certificate (certificado de habilitación) CAI-86-2016, which was communicated to the recipient through official communication CAI-009-2016 of April 22, 2016. (Images 1455-1460 of the file) **73)** That the present complaint was filed on March 2, 2016.\n\n(Image 1928 of the file)\n\n **III.- Facts not proven.** Of relevance for this judgment are the following: **1)** That the questioned administrative conduct caused the plaintiffs damages and losses they have no duty to bear.\n\n **IV.- Object of the proceeding.** Having analyzed the arguments of the parties involved in this proceeding, the claims were established as follows: \"***CLAIM FOR ANNULMENT.*** *Based on the factual and legal arguments indicated, this representation requests that this lawsuit be granted and that the nullity of the following administrative acts be declared:* ***1.- Nullity*** *of the following enabling certificates issued by the Council for Comprehensive Care to Mrs. Nombre138954 for the operation of the establishment called Guardería Angelitos: - Enabling Certificate CAI-2142 granted through Agreement number 07-23-2011, Agreement number 47--03-2013, and Agreement number 22-24-2013. - Official letter number CAI-0216-2014 of September 25, 2014, issued by the Council for Comprehensive Care of the Ministry of Health, which resolved the nullity incident filed by Nombre138953. - Resolution number DM-A-1275-15 of February 16, 2015, of the Ministry of Health, which resolved the appeal against official letter CAI-216-2014 and exhausted the administrative channel.* ***2.- Nullity*** *of Resolution Number DARSAZ-RHN-1157-2014 of September 8, 2014, of the Health Area of Aguas Zarcas, which rejected the operating permit for the Aguas Zarcas Service Station requested by Nombre26931, as well as all acts confirming it: - Resolution number DM-A-1280-15 of March 4, 2015.* ***3.-*** *As a consequence of the foregoing, it is requested that the* ***closure of the Daycare*** *be ordered.* ***CLAIM FOR DAMAGES*** *It is requested that the* ***State be condemned in the abstract*** *to pay the damages and losses caused to Nombre138953 and to Nombre26931 Petróleo Costa Rica S.A., amounts that will be proven in the Judgment Enforcement phase. The damages and losses sought to be compensated are the following: - The amount of rent that, according to the lease agreement, Nombre138953 was to receive from September 9, 2014, until the moment the Station is opened, and which is monthly* ***¢1,500,000.00 colones****. As of March 1, 2016, that amount is* ***¢26,550,000.00*** *.* *- The interest calculated based on the legal rate of the Banco Nacional pursuant to article 1163 of the Civil Code, on the sums that Nombre138953 was to receive monthly from September 9, 2014, until the date on which the Station is opened. As of March 1, 2015, that amount is ¢* ***1,256,080.78 colones*** *calculated pursuant to article 1163 of the Civil Code. (See calculation table in the virtual file on (page 37 of the original lawsuit).* ***Claim for Amendment of the Lawsuit*** *The following claims are added to the filed lawsuit: In the claim for annulment, we additionally request the annulment of the agreement of the Council for Comprehensive Care of the Ministry of Health of March 4, 2016, through which enabling certificate* ***CAI-86-2016*** *was granted and which was notified to Guardería Los Angelitos on April 22, 2016, via official letter* ***CAI-009-2016.*\"** For these purposes, the analysis of the positions upon which the plaintiffs base their petitions is immediately entered into, weighing the allegations of each of the parties both in the various written submissions, as well as in the oral statements made during the closing arguments stage of the preliminary hearing.\n\n **V.- Regarding the defense of expiration of the action.** The State raised the defense of expiration of the action, considering that, in accordance with the case law informing article 39.1 of the CPCA, the expiration period runs from the day following the communication of the act being challenged, regardless of whether appeals have been filed against that act in the administrative venue. Thus, if a year elapses from the communication of the act deemed harmful, the lawsuit filed to challenge the validity of that act, as well as to subsidiarily request payment of damages and losses, would be time-barred. In the preliminary hearing of March 28, 2017, said defense was reserved to be addressed in the judgment. Having evaluated the positions of the parties, this panel considers that the defense must be dismissed. In this Court's judgment, although ordinal 39.1 subsection a) of the CPCA establishes that the maximum period to initiate the proceeding, in the case of claims for annulment, is one year from the day following the notification of the act—when it is one that must be communicated through that means—, a preclusion governed by the expiration of the action, unlike claims for damages, whose time margin is subject to the statute of limitations, in accordance with what canon 41 of the same body of law prescribes, the truth of the matter is that when the individual chooses to exercise the ordinary appeals applicable against the final act issued by the Administration (exhaust the administrative channel), that fatal term must be computed from the day after the notification of the definitive act. This is because it is only at that moment that the individual has final knowledge and certainty of the outcome of their optional appeal exercise, except for the cases indicated in ordinal 31.1 of the CPCA and what was set forth in vote 3669-2006 of the Constitutional Chamber. From that standpoint, when the individual opts for such exhaustion, and the act resolving the appeals formulated is confirmatory of the questioned act, in accordance with ordinal 33 of the CPCA, the action for annulment may well be directed, indistinctly, against the act that is the object of the appeal (the final one), the one resolving the ordinary appeal expressly (definitive act), or by tacit denial, or against both simultaneously. The foregoing unless the act deciding the appeal reforms the impugned act, because in such a hypothesis, by logical order, the lawsuit must be brought against the definitive act. In such a case, when that possibility is exercised, once the administrative channel is exhausted, whether by issuance of an express act or when the tacit denial operates (see arts. Placa25235 , 31.6 CPCA), the period to judicially question that conduct is one year from the communication of the definitive act, and not from the communication of the final act, insofar as the latter was administratively challenged. This is, in fact, derived from ordinal 31.7 of the CPCA, a rule that clearly indicates: \"*If the appeal (referring to the administrative one) is expressly resolved, the period to file the lawsuit shall be counted from the day following the respective notification*\". It is evident that the rule alludes to the notification of the act resolving the appeal, and not the final act challenged, whereby the harmonious interpretation of the indicated precepts (31.6, 31.7, 33 and 39.1.a of the CPCA), lead this Court to conclude that when that exhaustion of the administrative channel is chosen, the timeframe to formulate the lawsuit, and therefore, the analysis of the expiration of the action, must be computed from the day after the communication of the act ordering the rejection of the ordinary appeals, whether one chooses to challenge only the final, the definitive, or both simultaneously, with the already noted exception indicated in subsection 2 of the cited numeral 33 of the CPCA. Otherwise, the filing of such administrative appeals would have no utility whatsoever, becoming a burden and disadvantage for the recipient of the public conduct. Certainly, in light of ordinal 148 of the LGAP, the filing of appeals does not suspend the effects and execution of the final act, from which it can be said that this act creates a definitive legal situation, that is, it is capable of producing effects and impacting the recipient legal spheres, however, this does not mean that when one chooses to administratively question that conduct (whose execution can be suspended when the competent public official deems it appropriate), the expiration term of the action runs from the adoption and notification of the cited act, since, as indicated, in such cases (when challenged) the permanence or not of the act has not been defined in that venue. If it were so, the individual would be subjected to the imperative need to resort to the judicial venue to refute an act injurious to their rights or legitimate interests, even having filed within the internal venue the ordinary appeals that the law assigns in each specific case, with the burden that this may entail, due to the requirements and particularities of access to this jurisdiction. Other sections of this Court have even expressed this, among others, in Judgment No. 63-2017-V of Section V, which on the subject stated: \"*IVo.- REGARDING THE EXPIRATION DEFENSE RAISED BY THE DEFENDANT AND THE PASSIVE CO-ADJUTOR.* *This Court considers that in the instant case, expiration has not occurred for the reasons set forth below:* *i)* *Although* *the criterion contained in judgments number 65-F-TC-2015, 116-A-S1-2015, and 122-F-TC-2015 issued by the Cassation Court of the Contentious-Administrative and Civil Treasury matters, seems to tend to give preeminence to the optional exhaustion of the administrative channel, as a way to facilitate the individual's access to prompt and effective justice; it is also true that* *the isolated application of the provisions of article 39 subsection 1 sub-subsection a of the Contentious-Administrative Procedural Code (CPCA) proposed in those pronouncements, not only implies disregarding what is established in subsections 6 and 7 of article 31 in relation to numeral 33 of that same normative body, but also restricts the effective exercise of the fundamental rights it aims to protect**. *ii)** In that sense, the previously cited numerals of the CPCA contemplate three scenarios for accessing the contentious-administrative jurisdiction* *—*without prejudice to the two cases in which, pursuant to the constitutional case law interpretation of articles 182 and 173 of the Political Constitution, exhaustion is \"mandatory\"; as well as conduct with continued effects, scenarios that will not be the object of this analysis*—*, namely:* *ii.a)* *Once the final act is notified, file the lawsuit without exhausting the administrative channel*, *a scenario in which, the 1-year period provided in numeral 39 of the CPCA, will run from the communication of the formal conduct;* *ii.b)* *If the interested party decides to exhaust the administrative channel*, *once the month provided in articles 261 subsection 2) of the General Law of Public Administration (LGAP) and, 31 subsection 6) of the CPCA has elapsed,* *may consider* *the ordinary appeal rejected and file the lawsuit,* *for which they will have one year counted from the day following the date on which the one-month period for the Administration to expressly resolve the appeal or appeals filed expired (subsection 6 of numeral 31 of the CPCA);* *ii.c)* *If the interested party decides to wait for the competent authority to expressly resolve the appeal* *—which it is in any case obligated to do pursuant to numerals 329 and 127 of the LGAP—, the period to file the lawsuit* *shall be counted from the day following the notification of the act through which the Administration expressly resolved the appeal* *(subsection 7 of article 31 of the CPCA),* *which is consistent with the provisions of numeral 39 subsection 1) sub-subsection a) of the CPCA, given that when the impugned act must be notified, the period to file the lawsuit shall be counted from the day following the notification**. *iii)** Consequently, it is not that the filing of administrative appeals has the power to interrupt or suspend the expiration period, since those figures are not applicable to it; simply and pursuant to the provisions of article 31 subsections 6 and 7, 33 and 39 subsection 1) sub-subsection a) of the CPCA; 127, 261.2 and 329 of the LGAP,* *the expiration period will begin to be computed depending on the option that the individual has validly chosen, based on the powers that the legal system grants them for that purpose**:* *iii.a)** When they decide not to exhaust the administrative channel**,* *from the notification of the final act (article 140 of the LGAP), which does not prevent that if the appeal is subsequently resolved negatively, expressly or by tacit denial, the facts and claims of the lawsuit may be amended;* *iii.b)** If they opt for the exhaustion of the channel*, *consider the appeals dismissed one month after being filed, at which time the year to file the lawsuit begins to run (article 261.2 of the LGAP and 31.6 of the CPCA);* *iii.c)** If the appeal were resolved expressly* *—*which the competent entity or body is obligated to do*—*, the expiration period shall be counted from the day following the* *notification** of the act (article 140 of the LGAP).* *iv)** This Court considers that holding the contrary renders the individuals' right of action and the guarantee of access to justice in strict conformity with the laws nugatory, thus disregarding the power the legal system grants them to challenge administratively the conduct they consider contrary to law and for the Administration to resolve expressly and with grounds,* *without that optional exercise having the power to limit or restrict their right of action and access to justice in the contentious-administrative venue,* *in the terms provided in numerals 41 in fine of the Political Constitution; 8 subsections 1 in fine and 2 sub-subsection h) of the American Convention on Human Rights; 31 subsections 6) and 7), 33, 39 subsection 1) sub-subsection a) of the CPCA, 127, 261 subsection 2), 329 of the LGAP.*\n\nIn light of the foregoing, this Court, in application of the principles of judicial independence (Article 154 of the Political Constitution); normative hierarchy (Article 6 of the LGAP and Article 8, subsection 1 of the Organic Law of the Judicial Branch); legality (Articles 11 of the Political Constitution and 11, subsection 1) of the LGAP); effective judicial protection (Articles 8, subsection 1 of the American Convention on Human Rights; 41 of the Political Constitution) and justice (Article 16, subsection 1 of the LGAP), departs from the criterion contained in judgments number 65-F-TC-2015, 116-A-S1-2015, and 122-F-TC-2015 issued by the Court of Cassation for Contentious-Administrative and Civil Hacienda Matters, on which the passive coadjuvant’s representative bases the appropriateness of the expiration defense. (...). This Court fully shares these considerations. In the present case, the final conduct being challenged was contested at the administrative level. From the analysis of the record, it is evident that this action was filed within one year after the decisions resolving those appeals were made, which undermines the merit of the invoked expiration defense. Indeed, from the analysis of the file, it is clear that while the nullity is sought of the habilitation certificate CAI-2142, granted by the Ministry of Health in decision 07-23-2001, decision 47-03-2013, and decision 22-24-2013, as well as of resolution DARSAZ-RHN-1157-2014 of September 8, 2014, from the Aguas Zarcas Health Area, the fact remains that these actions were contested at the administrative level. As a result, regarding the said certificates, the challenges were dismissed by resolution No. DM-A-1275-15 of February 16, 2015, communicated on March 4, 2015, while regarding the rejection of the operating permit, the challenge measures were resolved by act DM-A-1280-15 of March 4, 2015, notified on that same day. For its part, this lawsuit was filed on March 2, 2016, that is, before the expiration of the year referenced in the aforementioned article 39.1 of the CPCA. Consequently, the expiration defense against the action is rejected.\n\nVI.- On the merits of the matter under debate. At its core, this lawsuit is filed so that this Court orders the nullity of the habilitation certificates that the Comprehensive Care Council granted to Señora Nombre138954 for the operation of the establishment called Angelitos Guardería, as well as of Official Letter Placa26291 of September 25, 2014, issued by the Comprehensive Care Council of the Ministry of Health, which resolved the Motion for Nullity filed by the plaintiff; of Resolution DM-A-1275-15, of February 16, 2015, from the Ministry of Health, which resolved the appeal against the cited act CAI-0216-2014; of Resolution No. DARSAZ-RHN-1157-2014, of September 8, 2014, from the Aguas Zarcas Health Area, which rejected the operating permit for the Estación de Servicio Aguas Zarcas requested by Nombre26931; and of Resolution No. DM-A-1280-15, of March 4, 2015, from the Ministry of Health, which resolved the review appeal and the Motion for Nullity. Likewise, as a consequence of these alleged defects, it petitions for the closure of the Centro de Atención Integral Angelitos Guardería and for compensation in the amount of ₡Placa26292 for what it considers are the damages caused by the State to the company Nombre138953, as well as those caused to the company Nombre26931 Petróleo for the lost profits plus interest. Finally, it seeks to order the Ministry of Health to issue the operating permit for the operation of the Estación de Servicio Aguas Zarcas. For the purposes of addressing these claims, after the extensive list of proven facts presented in the first section of the considering part of this judgment, it is necessary to be clear that in this case, it has been established as proven that the Estación de Servicio Aguas Zarcas had been operating for a long time, insofar as the respective enabling title had been granted by official letter CS-022-77 of March 7, 1977. However, on November 30, 2005, by virtue of processing a complaint filed on that same date, the Environmental Protection Unit of the Ministry of Health ordered the closure of the commercial premises called Servicentro Aguas Zarcas S.A., indicating: \"The foregoing is due to a fuel leak event having occurred, which prompted a series of administrative measures to prevent damage to the health of the population and the environment, including the closure of the establishment. For which purpose, the respective seals were to be placed on: THE MAIN SIDES OF THE CONSTRUCTION, these seals indicating the legend \"CLAUSURADO\" [CLOSED], Ministry of Health. (...)\". (Folios 26, 40-41 of administrative file A-028) As a result of these events, through act No. R-DGTCC-723-2005 of 3:00 p.m. on December 13, 2005, the General Directorate of Transportation and Fuel Commercialization of MINAE (hereinafter DGTCC) ordered the Refinadora Costarricense de Petróleo, Commercial Relations Department, to suspend the sale of hydrocarbon derivatives to Servicentro Aguas Zarcas, while also noting that the premises lacked a valid sanitary operating permit, the environmental viability (viabilidad ambiental) granted by SETENA, and did not comply with the regulations of Executive Decree 30131-MINAE-S. By official letter DGTCC-1924 of December 9, 2005, from the DGTCC, Servicentro Aguas Zarcas is notified of the result of report DGTCC-INF-04-12-05 from the Engineering and Oversight Department, concerning the inspection carried out at Servicentro Aguas Zarcas, in which it is concluded that said station did not comply with the provisions of Decree MINAE-30131, requiring the station to be retrofitted, in addition to providing the technical data sheets for the storage tanks to verify their age, and in the event that (at that date) they were more than 20 years old, it was considered necessary to replace them, highlighting that according to the information gathered, the regular gasoline and diesel tanks had already exceeded that term. Through official letter DGTCC-878-06 of July 17, 2006, the DGTCC indicates that the useful life of the tanks had expired, making it necessary to replace them, upon prior submittal of the Environmental Viability (Viabilidad Ambiental) of the project and compliance with all the requirements indicated in Executive Decree 30.131-MINAE-S. By official letter ARAZ-UPAH-IT-578-2007 of 2007 from the Environmental Protection Unit of the Ministry of Health, it informs the Health Area Directorate of the inspection carried out on that same date of the remodeling being done at Servicentro Aguas Zarcas. By resolution R-DGTCC-642-2007-MINAE of September 11, 2007, the DGTCC approved the remodeling plans for the station, setting a deadline of one year to complete the works, after which, if the works were not finished, a re-stamping (resello) of the plans had to be requested. On September 26, 2007, Nombre138953 submitted to the Environmental Protection Unit, Huetar Norte Region, an application for a construction permit for the remodeling of a service station. Through official letter ARAZ-UPAH-IT-692-2007 of October 25, 2007, from the Environmental Protection Unit, an assessment report is issued regarding the application for a location permit for the service station activity submitted by Nombre138953, stating that the approval is denied until the concerns set out in this report are clarified, which includes specifying the type of project, as in the Ministry's opinion it is not considered a remodeling. Then, by official letter MS-RHN-DARAZ-563-2007 of October 25, 2007, the Aguas Zarcas Governing Area denied the location approval for the activity requested by Nombre138953 until the doubts established in the technical report ARAZ-UPAH-IT-692-2007 of October 25, 2007, from the Environmental Protection Unit, were clarified. By official letter DARSAZ-RHN-048-2008 of January 31, 2008, the Aguas Zarcas Governing Area maintained its criterion of denying the location approval for the service station remodeling activity application submitted by Nombre138953, deeming that it required an Environmental Impact Assessment (Evaluación de Impacto Ambiental). The appeals filed against this formal action were denied (proven fact 37). Through official letter MS-RHN-ARSAZ-URS-432-2008 of June 3, 2008, the Environmental Protection Unit informs the Aguas Zarcas Health Area Directorate that on the land where Nombre138953's Service Station was located, earthworks (movimientos de tierra) and demolitions were carried out; no construction in progress is observed, such as material or construction storage; the environmental viability (viabilidad ambiental) from Setena has not been submitted, therefore they do not have a construction permit, and the rejected construction plans remain in the office, which have not been collected. By resolution No. 2008-2008-SETENA of 11:00 a.m. on July 10, 2008, regarding the \"Proyecto Remodelación Servicentro Aguas Zarcas, file No. D1-0703-2008-SETENA\", that administrative authority, in item five of the operative part, granted environmental viability (viabilidad ambiental) to the Servicentro Aguas Zarcas remodeling project, opening the Environmental Management stage, specifying that this viability (viabilidad) was valid for two years. On August 8, 2008, the Aguas Zarcas Governing Health Area issued location permit No. MS-RHN-ARSAZ-PU-115-2008 for the service station remodeling activity, owned by Nombre138953, survey map A-30631-77. This act states that the conditions under which the permit is granted were established in resolution MS-RHN-ARSAZ-URS-625-2008 of August 6, 2008, the latter of which indicates, among the evaluated aspects, that it is a commercial zone that complies with the distances established by law regarding surface water sources and presents no risks regarding landslides or floods. Given the foregoing, on March 6, 2008, the Municipality of San Carlos issued in favor of Nombre138953 construction permit number Placa26289 expiring (apparently) in March 2010. On December 17, 2008, the Huetar Norte Region of the Ministry of Health, through official letter URS-RHN-336-2008, approved the construction plans for the remodeling and expansion of the Service Station. On May 20, 2009, the works began, as indicated by the technical direction visit report No. 62550, signed by the execution manager. (Image 2432 of the file) Despite the start of works, as indicated by the plaintiffs themselves, the works were abandoned or suspended, which is proven by the last record of actions in the construction logbook, dated November 10, 2009, which notes that during the visit made that day, construction was halted, the fuel tanks had been placed and completely covered with sand, and the flexible piping from the tank area to the islands had also been placed. A detail was recorded that the guard had indicated that construction would surely resume the year following that date. (Image 2442 of the file) However, it was not until August 3, 2011, that, through official letter P077-2011, Nombre138953 informed the DGTCC that it would restart construction activities, stating that the reason for the delay was purely economic. In view of this, through resolutions R-DGTCC-610-2011-MINAET of 8:00 a.m. on August 10, 2011, and R-702-2011-DGTCC-MINAET of September 16, 2011, the DGTCC ordered Nombre138953 to carry out the procedure for re-stamping (resello) of the construction plans, which was managed by official letter P-064-2013. On February 28, 2013, Nombre138953 definitively processed it. By official letter DGTCC-AI-30-03-13 of March 7, 2013, the General Directorate of Hydrocarbons recommended granting the re-stamping (resello) of the construction plans for the remodeling and completion of the works for the Estación de Servicio Aguas Zarcas project, warning that any omission in the plans must comply with the provisions of Decree 30131-MINAE-S, while also noting that the granting of said plan approval did not exclude the approval of permits from the other corresponding entities. Through official letter SG-ASA-0303-2014 of March 17, 2014, SETENA informs the Aguas Zarcas Governing Area that the service station remodeling project in Aguas Zarcas has an environmental viability (viabilidad ambiental) license via resolution 2008-2008-SETENA of July 10, 2008, which did not confer a right to obtain the respective operating permit. That same official letter stated that it was not necessary to obtain environmental viability (viabilidad ambiental) for the Angelitos Guardería, unless it has the characteristics indicated in Article 17 of the Organic Law of the Environment. As indicated by inspection report No. 62550 of April 18, 2014, by that date the works were 100% complete. As a result, on June 2, 2014, through application number 290-2014, Nombre138953, in his capacity as owner of the Property, requested from the Aguas Zarcas Governing Health Area of San Carlos the sanitary operating permit for the Station. Through official letter MS-RHN-ARSAZ-ERS-824-2014 of June 18, 2014, an inspection and technical assessment report on the physical, sanitary, and safety conditions of the Nombre138953 Servicio Aguas Zarcas Station is issued, addressed to the Aguas Zarcas Governing Area Directorate, listing a series of non-conformities, based on which it recommends: \"... considering the risk especially to such a vulnerable population as minors, whose health and safety it is the State's duty to protect said right, it is recommended to deny the processing of the Sanitary Operating Permit application and to follow up on the correction of the non-conformities found. (...)\". (Folios 435-451 of administrative file A-028) In official letter MS-RHN-ARSAZ-ERS-830-2014 of June 19, 2014, a follow-up report is issued on the first-time application for a sanitary operating permit from Dirección16683, in which it is stated that the operating permit should not be issued until a series of non-conformities are corrected, reiterating the point regarding minors just mentioned. Through official letter DARSAZ-RHN-728-2014 of June 23, 2014, the Director of the Governing Area denied the submitted application for evidencing a series of breaches of legal regulations. In official letter DI-158-2014 of July 14, 2014, the Engineering and Urbanism Department of the Municipality of San Carlos indicates to Nombre138953 that in relation to the request for an update of construction permit Placa26289 issued on March 6, 2009, its renewal was not necessary if the works began within the year following its issuance. By official letter SG-DEA-2262-2014-SETENA of July 16, 2014, SETENA informs the CAI that any type of activity involving fuel handling always carries an associated risk due to the nature of the substances, but that notwithstanding this, specific procedures and regulations exist for service stations that tend to regulate and minimize the risks that said activity may represent. On August 13, 2014, Nombre26931, in its capacity as lessee of the property where the station is intended to be located, requested the operating permit for the operation of that business. However, through official letter MS-RHN-ARSAZ-ERS-1196-2014 (RHN-URS-054-2014) of September 4, 2014, the Health Regulation Team of the Governing Area issues a follow-up report to assess the conditions for the operation of the Nombre26931 Aguas Zarcas Service Station and concludes: \"Given that health authorities are public officials and mere depositaries of the Law, and cannot make exceptions in its application, a sanitary operating permit cannot be granted for failing to comply with the 100-meter setback established in the specific regulation of Executive Decree 30131-MINAE-S.\", therefore recommending that the requested sanitary permit not be granted. Based on this opinion, by official letter DARSAZ-RHN-1157-2014 of September 8, 2014, the Governing Area resolved to deny the application for a first-time sanitary operating permit. An appeal having been filed (on September 17, 2014), it was dismissed by the Minister of Health through official letter number DM-A4815-14 of November 14, 2014, as she indicated the appeal was untimely. However, this decision was annulled, and definitively, through official letter number CAI-0216-2014 of September 25, 2014, the CAI communicated that through decision number 48-1 8-2014, the motion for nullity filed by Nombre138953 was rejected, arguing that the resumption of the service station's operation was a future and uncertain event and that the CAI cannot make resolutions based on future and uncertain assumptions. Through resolution number DM-A-1275-15 of February 16, 2015, the Ministry of Health declared the appeal without merit, indicating: \"... The foregoing by virtue of the fact that the Estación de Servicio Aguas Zarcas was closed by the Health Authority on November 30, 2005, and since that date has not had a Sanitary Operating Permit. Despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy granted the respective authorizations for the remodeling of the Service Station, for reasons not attributable to the Administration, represented in the aforementioned Institutions, construction was halted on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the logbook. During the period of construction work stoppage, the application to process the operating permit for the establishment Angelitos Infantil Guardería was received on May 13, 2011, an operating permit granted in accordance with our legal system since, due to the aforementioned stoppage of works at the Service Station, there was no legal certainty at that procedural moment of any commercial activity at the site. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Estación de Servicio Aguas Zarcas should have informed the Local Governing Health Area of their intention to continue with construction, so that by a certain date, the service station would be ready to request the Sanitary Operating Permit. Due to this omission of communication to the Aguas Arcas Governing Health Area, we proceeded, as legally appropriate, to grant the permit to the Centro de Atención Integral Angelitos Guardería. However, we also cannot act against the freedom to work, constitutionally regulated, and by that same principle, it is not possible to annul the permit granted to the Centro de Atención Integral, as the appellant intends, and grant the permit to the Service Station, which, through its inactivity and lack of communication to the Active Administration of the State, did not warn that the remodeling of the Service Station would resume.\" After this, by decision number 16-4 of March 4, 2016, the Ministry of Health renewed the operating permit for Guardería Los Angelitos by granting habilitation certificate CAI-86-2016, which was communicated to the recipient through official letter CAI-009-2016 of April 22, 2016.\n\nVII.- In light of this account, the plaintiffs complain that official letter DARSAZ-RHN-1157-2014 from the Governing Health Area, by which it rejected the application for a sanitary operating permit (PSF) filed by the company Nombre26931 Petróleo Costa Rica for the Estación de Servicio Aguas Zarcas, contains a defect of absolute nullity, because the grounds for this act are based on an illegal act, namely the operation of Angelitos Guardería, which is located 37 meters from the Service Station. In their judgment, the Administration did not consider that it already had a consolidated land use (uso de suelo) for the fuel service station and that it was in the construction phase. They consider that resolution No. DM-A-1280-15 of 8:30 a.m. on March 4, 2015, from the Minister of Health, which confirms in all its aspects official letter DARSAZ-RHN-1157-2014, is equally invalid. From the analysis of the mentioned acts, it is clear that the background supporting the reasoning of the final rejection act was Technical Report No. MS-RHN-ARSAZ-ERS-1196-2014 of September 4, 2014, in which it was established that the Service Station did not meet certain physical or sanitary conditions, among them: lack of protective grates in perimeter channels in the storage area and the distance of the fuel storage tanks from Angelitos Guardería, which is 37 meters, that is, less than the 100 meters set forth in Decree 30131, denominated \"Reglamento para la Regulación del Sistema de Almacenamiento y Comercialización de HIdrocarburos\". In that specific regulation, article 15.10 states: \"Article 15.—Of the land. The land where a terrestrial service station is installed must meet the following requirements: (...) 15.10 One hundred meters from factory buildings or sites where explosive or flammable products or substances are stored in quantities that may cause a danger according to the technical criteria of the Ministry of Health, sites of public assembly, and electrical substations.\" It was precisely because of this physical proximity of the fuel storage tanks to Angelitos Guardería that the Ministry of Health ordered the denial of the PSF.\n\nFrom that perspective, the claimants' allegations focus on the invalidity of the enabling act issued in favor of the operation of said Daycare Center (Guardería), as a prerequisite for the nullity sought with respect to the denial of their applications to operate as a service station. Within the claimants' theory of the case, it is clear that by eliminating the element that constitutes the grounds and cause for the denial of their petitions, the acts adverse to their interests would lack a grounds element, giving way to a new weighing of their case, in that eventuality, without considering the limitation arising from the existence of the aforementioned daycare establishment. Therefore, addressing the allegations regarding the enabling and operation of the daycare center is decisive, as an unavoidable prerequisite for the analysis of the validity of the conduct related to the denial of activities of the Service Station (Estación de Servicio). In that regard, as a first aspect, it is argued a) the Nullity of the operating permits issued by the CAI to the Angelitos Daycare Center and the acts that confirm them: certificate of enablement (certificado de habilitación) CAI-2142 granted by the CAI through Agreement No. 07-23-2011, Agreement No. 47-032013, Agreement No. 22-24-2013, Official Letter No. CAI-0216-2014 of September 25, 2014, and Resolution No. DM-A-1275-15 of February 16, 2015. On this point, in essence, it is argued that these certificates do not comply with the requirements and permits demanded by the legal system, including those required by Article 4.3.3.1 of Executive Decree No. 30186-S, permits that were not submitted in the proceeding. It indicates that in none of the inspections carried out by the Administration are aspects related to electrical installations, fire prevention, hydraulic installations, sanitary installations, and foundations recorded. It highlights that Resolution No. DM-A-1275-15 of February 16, 2015, and No. DARSAZ-RHN-1157-2014 of September 8, 2014, omitted to refer to these aspects. Likewise, it states that the verification of alignments was not carried out, since the Ministry of Health did not perform an analysis of the sources of contamination that could affect the Daycare Center. It says that the daycare center began its process in 2011 and the Service Station existed long before, therefore the inspection should have taken into account the permits granted and the rights acquired as of the date of the inspection. If the Daycare Center did not comply with the alignment, the Comprehensive Care Center (Centro de Atención Integral) should have carried out the reasonableness analysis requested by Decree 30131-MINAE-S. It states that in the inspection of May 23, 2011, in section 4.3.1.2, it was indicated that the establishment was 100 meters away from high-risk centers. It considers that based on this erroneous information, the CAI issued Agreement No. 07-23 of August 10, 2011, through which it enabled the Angelitos Daycare Center for one year. Therefore, it is affirmed that there is no evidence in the entire administrative file that the Aguas Zarcas Health Area (Área de Salud de Aguas Zarcas), and even less so the Center, assessed whether the service station represented or did not represent a risk for the users of the Daycare Center, as required by Article 4.3.1.2 of the CAI Enablement Standard and Executive Decree 30131-MINAE-S. It considers that the fact the Station had a consolidated land use (uso de suelo consolidado) as will be seen, and a location permit issued by the Ministry of Health, as well as construction permits, grants it a right of priority regarding location and operation. Regarding the renewal of the Daycare Center's enablement, carried out through enablement certificate CAI-2142, it points out that by Agreement 07-23-2011 of August 10, 2011, the Daycare Center was enabled for one year, which expired on August 10, 2012, and from that date until February 28, 2013, the Daycare Center operated without a permit, since it was not until that date that the final Agreement No. 47 was issued in Minute No. 3 of the session of February 28, 2013. It emphasizes that contrary to that agreement, the certificate indicated a validity of 3 years. Finally, regarding this point, it indicates that the expansion authorization is null, since it is not clear in the administrative file what physical or construction works were carried out, and in any case, no permit was provided to execute said works. It says that the Daycare Center does not have environmental feasibility (viabilidad ambiental), plans approved by the Federated College of Engineers and Architects (Colegio Federado de Ingenieros y Arquitectos), approved plans from the Ministry of Health, a permit from the Benemérito Fire Department (Benemérito Cuerpo de Bomberos), or a construction permit from the Municipality of San Carlos (Municipalidad de San Carlos), aspects that are applicable even when the place is already built. Regarding such questions, it is appropriate to indicate what is set forth below.\n\nVIII.- From the analysis of the pieces appearing in the case file, it is evident that on May 13, 2011, Mrs. Nombre138954 submitted to the Aguas Zarcas Governing Health Area (Área Rectora de Aguas Zarcas) of the Ministry of Health an application for the authorization to operate a comprehensive care center (centro de atención integral) called \"Angelitos Guardería,\" to carry out the activity of a children's daycare center, with an area of 420 m2. The documents attached with the application were: -sworn statement for processing applications for a Sanitary Operating Permit (PSF); -incorporation of the establishment's technical manager before the respective professional association; and -proposal for the enablement of a comprehensive care center for boys and girls. On May 23, 2011, an on-site inspection was carried out to evaluate the physical-sanitary conditions of the Angelitos Daycare Center. The report drawn up for that purpose indicates that the evaluation instrument for Comprehensive Care Centers was applied. In said measurement instrument, in numeral 4.3 \"Physical Structure,\" section 4.3.1.2, subsection b) called \"High-risk centers (according to the National Emergency Commission) and Ministry of Health which directly affect the users,\" a value of 1 was recorded. Through Official Letter MS-RHN-ARSAZ-ERS-663-2011 of May 24, 2011, the Directorate of the Aguas Zarcas Governing Health Area was informed that after having applied to the Angelitos Children's Daycare Center the evaluation instrument \"Evaluation Questionnaire for Centers for the Care of Children and Adolescents (sic), Daytime Modality,\" that establishment was not operating until it had the corresponding permit, therefore the following aspects could not be evaluated: -there is no INS policy because they do not have any users; -the number of people served was not indicated because they do not have any users; -the maximum capacity of the center is 30 users; -point 4.5 Promotion of development and 4.6 Health care of the Standard could not be evaluated because they have not started activity. It clarified that the evaluation team focused more on the physical plant. Through Official Letter MS-RHN-ARSAZ-ERS-821-2011 of June 29, 2011, the official Nombre138958 reports, regarding what is relevant to this process, that she proceeded to update the follow-up visit made on May 23, 2011, because on that date they had not finished remodeling the infrastructure; she appeared at the site accompanied by Lic. Faustino Godoy Cortez on June 29, 2011, with the purpose of evaluating the points that had improved in the daycare center with respect to the Standard for the Enablement of Comprehensive Care Centers. She detailed the points that did not fully comply with respect to said standard. In item 4.3.1.2 relating to the aspect of sources of contamination of various kinds, she justified: \"Previously in the evaluation, a code of 0.5 had been placed for being near a paint workshop. However, a wall has now been built that does not allow direct communication with the daycare center. Therefore, it is considered suitable for the requested activity.\" She concluded that the evaluation team considered it viable to grant the Sanitary Operating Permit for the activity requested by the Angelitos Children's Daycare Center. Through Agreement No. 07-23 of August 10, 2011, the Comprehensive Care Council (Consejo de Atención Integral) (hereinafter \"the CAI\") enabled the Daycare Center as a comprehensive care center (centro de atención integral), to serve minors from 2 to 6 years old, from August 10, 2011, to August 9, 2012, that is, for a term of one year. This was communicated to the Huetar Norte Regional Health Directorate through Official Letter CAI-0485-2011 of August 10, 2011. Regarding this first aspect of granting the operating enablement, it should be noted that the inspection reports themselves reveal that the verifications prior to the issuance of the respective criterion were carried out using the Standards for the Enablement of Comprehensive Care Centers. In that sense, as can be inferred from Articles 6 and 7 of the General Law of Comprehensive Care Centers, No. 8071, the Comprehensive Care Council is the body (attached to the Ministry of Health) in charge of authorizing, supervising, overseeing, and coordinating the adequate functioning of comprehensive care modalities for minors up to twelve years of age. Within its competencies, Article 7, subsection a) of the same law establishes proposing technical standards for granting operating permits for comprehensive care centers for minors under twelve years of age, as well as (subsection g) approving the project for comprehensive care centers intended to be opened. For its part, Article 7 of Executive Decree No. 29580-S sets as one of the specific objectives of that Council: \"f) Ensure that comprehensive care establishments for minors have complied with the requirements for the operating permit and are actively involved in the accreditation process.\" From that perspective, in accordance with the powers of prior verification, it is inferred from the case file that the granting of the Daycare Center's operating permit was preceded by the inspections required by the legal system. Indeed, it is worth noting that in the first inspection report, that is, Official Letter MS-RHN-ARSAZ-ERS-663-2011 of May 24, 2011, a series of improvements were required, which were later verified in report 821-2001 of June 29, 2011, in which it was considered pertinent and appropriate to grant the PSF, considering that it complied with all the ordinances applicable to this type of establishment. In each of those reports—which appear in the case file—the items and aspects that form part of the evaluation instrument and that demonstrate compliance with the regulatory conditions that specify the operation of this type of daycare center can be seen. Now then, later, on July 24, 2012, Mrs. Nombre138954 submitted an application for renewal of the operating permit, as a result of which, on July 26, 2012, the corresponding inspection was carried out and Technical Report MS-RHN-ARSAZ-ERZ-987-2012 of July 27 of the same year was issued, in which it is indicated that the physical-sanitary and safety conditions were found to be satisfactory for the renewal of the Sanitary Operating Permit by the CAI. In said measurement instrument, in numeral 4.3 \"Physical Structure,\" section 4.3.1.2, subsection b) called \"High-risk centers (according to the National Emergency Commission) and Ministry of Health which directly affect the users,\" a value of 1 was recorded. It was for the foregoing that through final Agreement No. 47, which appears in Minute No. 3 of the session held on February 28, 2013, the CAI agreed to enable the Daycare Center for 1 year \"to provide comprehensive care services for up to 30 boys and girls from 2 years to 6 years old and under the Private Temporary Daytime Care alternative modality in a schedule from 7:00 a.m. to 5:00 p.m.\" In the agreement, box 7 was checked, which indicates that for permits of less than one year, no enablement certificate is issued. Likewise, box 10.1 Other was checked, with the following indication: \"a. To the administered party, within a period of 10 business days, deliver the 25 policies with the adequate amount as stipulated in the regulations to the Law. b. Governing Health Area must carry out follow-up on what was agreed in point #11 subsection A of this agreement and inform the CAI. Once what is requested is delivered, the permit will be extended to 3 years. (...).\" According to that account, which is derived from the facts that have been deemed proven in this process, the renewal request for the PSF was formulated prior to the expiration of the original permit, and although that initial validity expired on August 10, 2011, and it was not until February 28, 2012, that the renewal was granted, this does not determine per se the nullity of the renewal act, to the extent that based on the inspections carried out and the technical report issued for such purposes, compliance with the conditions that are inherent to this type of establishment could be verified. While it is true that the agreement indicated that the renewal was for one year and the certificate stated a term of 3 years, there is no irregularity in that apparent dissonance, to the extent that the aforementioned agreement expressly indicated in box 10.1 that once the requirements set forth therein were satisfied, \"... the permit will be extended to 3 years. (...).\" Therefore, such irregularity does not exist, to the extent that the same agreement anticipated the possibility of extending the validity of the renewal from one year to three years, as indeed happened.\n\nIX.- Now then, once the renewal was granted, on May 9, 2013, Mrs. Nombre138954 requested from the Ministry of Health a visit to inspect aspects associated with a potential expansion of facilities and services. Thus, through Official Letter MS-RHN-ARSAZ-ERS-658-2013 of May 27, 2013, from the Health Regulation Team of the Aguas Zarcas Governing Health Area, the expansion application is analyzed and it is recommended: \"-Request the permit holder to submit a sketch indicating the delimitation by areas according to activity and in accordance with the provisions of the Standard for the Enablement of Comprehensive Care Centers, indicating the existing free spaces for the users of the service (...).\" In said official letter, furthermore, several non-conformities related to sanitary services and Law No. 7600, areas used for various activities, and exclusive and differentiated spaces were noted. On June 4, 2013, Mrs. Nombre138954 submitted the documents related to the requested requirements, attaching a sketch detailing that the infrastructure has a Nombre26931 area of 465 m2. Through Report MS-RHN-ARSAZ-ERS-710-2013 of June 11, 2013, from the Health Regulation Team of the Aguas Zarcas Governing Health Area, it is concluded that the physical-sanitary and safety conditions of the Angelitos Daycare Center are in accordance with the provisions of the Standard for the Enablement of Comprehensive Care Centers. Subsequently, in a note filed on October 10, 2013, Mrs. Nombre138954 requested an inspection after having expanded the facilities with the objective that the permit granted would be for more students, attaching a sketch of the expansion carried out and a general description of various areas of the daycare center, for a Nombre26931 area of 1095.35 m2. Through final Agreement No. 22-24 of December 6, 2013, the CAI ordered: \"Approve the increase in installed capacity as follows: Enable for 3 years from 2-28-2013 to 2-27-2016 to serve up to 75 children from 2 years to 6 years from 7:00 a.m. to 5:00 p.m. Enablement certificate No. 2142 is sent with the approved modifications. The administered party must deliver the current enablement certificate to proceed with its annulment.\" Ultimately, the CAI issued enablement certificate CAI-2142 in favor of Angelitos Daycare Center, to provide comprehensive care services for up to 30 boys and girls, from 2 years to 6 years, under the private temporary daytime care alternative modality in a schedule from 7:00 a.m. to 5:00 p.m., according to final Agreement No. 47 that appears in Minute No. 03 of the session held on February 28, 2013, with the indication that said permit expired on February 27, 2016. Through final Agreement No. 48-18 of 2014, of August 8, 2014, the CAI ordered: \"AGREEMENT NO. 48: In response to the incident of nullity filed by Nombre138956, legal representative of the company Nombre138953, against final Agreement No. 47-03-2013 and the enablement permit granted to the Angelitos Daycare Center, seeking the best interests of the child and in fulfillment of the aims and objectives of the Comprehensive Care Council to guarantee the right of minors to participate in comprehensive care programs when their fathers, mothers, or legal representatives require it, ensuring that all the requirements established in the respective regulations for each of the care modalities are met, in accordance with the provisions of Article 3 of Law 8017 (...) and taking into consideration the reports sent to this Council by the interested instances and consulted entities, it is agreed to declare the cited incident without merit taking into consideration the following: 1. At the time of carrying out the inspection to assess compliance with the standard for comprehensive care centers, the Aguas Zarcas Governing Health Area did not find objective, real, and present elements of the operation of the 'Servicentro Aguas Zarcas' located near the comprehensive care center 'Angelitos Daycare Center' that could become a source of contamination or risk that could endanger the health and integrity of the children using the center. Moreover, it was reported at the time that the fuel service station in question has not been in operation for many years, a condition that persists to the present. 2. The fact that the fuel service station was planning to resume operations at an undefined time is a future and uncertain event, since to restart the operation of the establishment, a series of conditions would have to be met, including the processing of the corresponding permits by each of the instances to which the legislation grants competence for that purpose. 3. The Comprehensive Care Council cannot make resolutions taking into consideration future and uncertain suppositions, as this would be detrimental to the objective practice of the public function and the rights of citizens to have a prompt response from the administration in adherence to current legislation. For all the above, the operating permit for the comprehensive care center 'Angelitos Daycare Center' is maintained under the terms established in final Agreement No. 47-03-2013 of February 28, 2013.\" Although that decision was challenged by the claimants, ultimately, through Resolution No. DM-A-1275-15 of February 16, 2015, the Ministry of Health declared without merit the appeal filed by Nombre138953 against CAI Agreement 48-18-2014. In this regard, it indicated in the operative part that said rejection was based on the following: \"... The foregoing by virtue of the fact that the Aguas Zarcas Service Station was closed by the Health Authority on November 30, 2005, and since that date it has not had a Sanitary Operating Permit, despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy granted the respective authorizations for the remodeling of the Service Station, for reasons not attributable to the Administration, represented in the aforementioned Institutions, the construction was halted on November 10, 2009, and construction work resumed on October 29, 2013, as evidenced in the logbook, and during the stoppage period of the construction works, the application for processing an operating permit for the establishment Angelitos Children's Daycare Center was received on May 13, 2011, an operating permit granted in accordance with our legal system since, due to the aforementioned stoppage of works at the Service Station, there was no legal certainty at that procedural moment of any commercial activity at the site. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Local Governing Health Area of their intention to continue with the construction, so that on a certain date, the service station would be ready to request the Sanitary Operating Permit, and given that omission of communication to the Aguas Zarcas Governing Health Area, it was proceeded, as legally appropriate, to grant the permit to the Comprehensive Care Center Angelitos Daycare Center. Now then, we cannot go against the freedom to work, constitutionally regulated, and by that same principle, it is not possible to annul the permit granted to the Comprehensive Care Center, as the appellant intends, and grant the permit to the Service Station, which, due to its inactivity and lack of communication to the Active Administration of the State, did not alert that the remodeling of the Service Station would resume.\" Based on the foregoing, it is the opinion of this Tribunal that the sued Administration carried out at all times the required verifications and inspections prior to the operation of the Angelitos Daycare Center, as well as the renewal and expansion of services procedures. The central claim refers to the absence of analysis regarding the prior existence of a Service Station within the radius of 100 meters from the site where the cited daycare center was to be enabled, the claimants considering that the prior operation of that station was evident, which, they state, in any case, has priority regarding the permitted use. Regarding that aspect, after examining the present matter, it is evident that the denial criterion embodied in the resolution of the appeals rests on determining elements that are undeniably relevant to the present analysis. On the one hand, that the Aguas Zarcas Service Station has been closed since November 30, 2005, a date since which it has not possessed a PSF. Then, while it is true that on August 8, 2008, the Ministry of Health granted a location permit for the cited service station, from the weighing of the evidentiary elements, it is clear that the activity and operation of that establishment were completely uncertain, given that, as has been detailed, since November 2009, the remodeling works were suspended, supposedly due to financing issues, and were not resumed until October 2013.\n\nIt was precisely within that period of abandonment of the works that the request for operation of the daycare center was received and processed, which, as has been indicated, has had a sanitary operating permit (permiso sanitario de funcionamiento, PSF) since August 10, 2011. That is to say, the PSF for that daycare center was granted more than two years before the remodeling works at the service station were reactivated. That state of abandonment in which those works were left produced, undoubtedly, a state of uncertainty about the effective operation of the service station, so that the processing of the daycare center’s application within that interval of abandonment could not consider that operation, sheltered by a pseudo vested right (derecho adquirido) of operation and location permit or certificate of compliant land use (uso conforme del suelo) issued by the local entity of San Carlos. Regardless of those behaviors regarding the disposition of land use, the fact of the matter is that the definition of sanitary authorization for operation is a matter that falls within the exclusive competence of the Ministry of Health, so that the debate about the nature of a vested right or not of the municipal land use certificates presented by the plaintiffs is not of greater relevance for the resolution of this conflict. This is because regardless of holding a certificate of this nature that evidences the land use regime of a specific territorial space, it does not automatically lead to, nor bind, the granting of a PSF. The former is a prerequisite for the processing of the latter, but in no way implies the obligatory granting of the PSF. If at the time of granting the daycare center's permit the service station was in abandonment, without there being certainty about the fate of those works, this Court concludes that it did not constitute an element that could limit the granting of that type of administrative authorization, especially since the interested parties did not timely communicate the plans regarding that particular project. In this manner, the claimants cannot pretend that, despite the voluntary abandonment they made of the works, by the mere possession of a land use certificate, location permit, or in general, by the titles obtained to undertake the remodeling project, despite leaving the fate of the remodeling in suspense for an approximate period of 4 years, they maintained a sort of priority or consolidated situation with respect to any other type of activity that was intended to be carried out in the vicinity of the site where the station would be located. The very inertia and neglect of the owners of that property and of the business in question led to the levels of indetermination that resulted in the proximity of the station not being weighed during the processing of the application formulated for the operation of Angelitos Guardería, given that such business had been closed since the month of November 2005, for an indefinite time due to problems detected from leaks in the storage tanks, and while the remodeling works began on May 20, 2009, they were abandoned or left in suspense in the month of November of that same year, so that at the time of processing that application, there was no indication of the future of the station, and this Court does not share the opinion of the lawsuit in that at the time of venting that application, it was imperative to analyze the proximity of the service station (37 meters), for it is reiterated, it was not a business that was operating or, indeed, had certainty about its prompt entry into operations, therefore suppressing or denying applications for economic activities based on said conjecture would entail a detriment to the rights of third parties and an unfounded privilege in favor of a person, conferred based on a broad state of uncertainty, attributable to their own indolence and negligence. The fact that the plaintiffs later resumed the construction actions is not an obstacle to the validity of the PSF granted to Angelitos Guardería, so that the entry into operation of this establishment, on the contrary, is an element that indispensably must be considered at the time of analyzing the propriety or not of granting the PSF to the service station. Thus, this Court does not observe that there is a deficiency in the objective material elements of the act, nor in the failings in the reasoning that are alleged, for each of those criticized acts is preceded by the corresponding technical analyses and with the due substantiation, even when it is evident that such considerations are not shared by the plaintiffs and the decision is contrary to their interests. Therefore, no ground for nullity is observed in what has been the subject of questioning, as a result of which, the annulment claims formulated against the conduct in question must be rejected.\n\nX.- In another order of arguments, the nullity of resolution DARSAZ-RHN-1157-2014 that rejected the operating permit (permiso de funcionamiento) for the station is alleged, as well as of the other acts that confirm that denial. For such purposes, as stated above, in that act the denial of the PSF petition was ordered, deeming that the station was located less than 100 meters away from Guardería Angelitos, which has operated uninterruptedly since the month of August 2011. It has already been noted that the technical support for that action was official communication MS-RHN-ARSAZ-ERS-1196-2014 (RHN-URS-054-2014) of September 4, 2014, from the Health Regulation Team (Equipo de Regulación de la Salud) of the Governing Area (Área Rectora), in which it was stated *\"...that a sanitary operating permit cannot be granted for failure to comply with the 100-meter setback established in the specific regulation of Executive Decree 30131-MINAE-S.\"*. Likewise, it is reiterated that resolution number DM-A-1275-15 of February 16, 2015, of the Ministry of Health declared the appeal without merit, indicating: *\"... The foregoing by virtue of the fact that the Aguas Zarcas Service Station was closed by the Health Authority on November 30, 2005, and since that date has not had a Sanitary Operating Permit (PSF), despite the fact that in the past, both the Ministry of Health, the Municipality of San Carlos, and the Ministry of Environment and Energy granted the respective authorizations for the remodeling of the Service Station. For reasons not attributable to the Administration, represented in the aforementioned Institutions, the construction was paralyzed on November 10, 2009, and the construction works were resumed on October 29, 2013, as evidenced in the logbook, and during the period of paralysis of the construction works, the application for processing an operating permit for the establishment Guardería Infantil Angelitos was received on May 13, 2011, an operating permit granted in accordance with our legal system, given that due to the aforementioned paralysis of works at the Service Station, there was no legal certainty at that procedural moment of any commercial activity at the site. Notwithstanding the foregoing, in the opinion of this Office, the representatives of the Aguas Zarcas Service Station should have informed the Local Governing Health Area of their intention to continue with the construction, so that by a certain date, the service station would be ready to request the Sanitary Operating Permit, and given that omission to communicate with the Governing Health Area of Aguas Zarcas, we proceeded as legally appropriate to grant the permit to the Centro de Atención Integral Angelitos Guardería. Now, we also cannot act against the constitutionally regulated freedom to work and by that same principle, it is not possible to annul the permit granted to the Centro de Atención Integral, as the appellant intends, and grant the permit to the Service Station, which, due to its inactivity and lack of communication to the Active State Administration, did not alert that the remodeling of the Service Station would resume.\"* The reiteration of this quote is necessary to the extent that it highlights the clear and compelling reasons that led to the rejection or denial of the application. That justification evidences the set of circumstances that have already been the subject of analysis in previous sections of this judgment and therefore make their reiteration unnecessary. All in all, it is clear that the fundamental cause for ordering the rejection of said petition was none other than the proximity of the daycare center; however, as has been said, there is no irregularity whatsoever in the authorization given by the CAI to that establishment, considering the reasons already stated regarding the abandonment and uncertainty concerning the remodeling works, as well as the impossibility that in such a scenario the petitions of third parties for the exercise of commercial activities could be validly limited, petitions which, for the stated reasons, could not be limited by an eventuality and a scenario in which, due to the plaintiffs' negligence, there was no legitimate definition of the circumstances requiring the station's future operation to be considered as an indispensable prerequisite in the weighing of the pertinence or not of the operation of those other businesses or activities. What has just been noted is not diminished in any way by the fact that the plaintiff had, prior to the daycare center's entry into operation, a location permit as well as the title of constructive permissibility. Such building permits were granted on March 6, 2008, by the Municipality of San Carlos (construction permit number Placa26289); however, it is reiterated, the works entered into abandonment in November 2009 and were reactivated until October 2013, and while it can be said, as the local entity stated, that the renewal of that license was not necessary, this does not directly lead to the granting of the operating permit, since they are different procedures, linked to each other, but ultimately, matters of diverse jurisdictions, namely, the building jurisdiction, by mandate of the Construction Law, assigned to the local entities, and in the case of PSFs, competence attributed to the Ministry of Health, in accordance with the General Health Law. Thus, regardless of the plaintiffs having those administrative authorizations, this does not lead, as intended, to a right to obtain the sanitary permit, given that such aspect requires the satisfaction of the requirements pertinent to each type of establishment. On the other hand, the argument of consolidation of land use due to the operation of the station since 1977 is not tenable. As has been noted, that establishment was closed in the year 2005 due to environmental problems arising from leaks in the storage tanks, and since that date it did not have a PSF. The petitioners' thesis would imply that the mere existence of a specific infrastructure, regardless of its use or lawful exploitation, constitutes a limitation for the building development of adjacent properties or for the exercise of other economic or residential activities. The consolidation referred to, which is supported by canon 28 of the Urban Planning Law, No. 4240, operates insofar as one is faced with a compliant use, with the possession of all enabling titles that legitimize the structure and activity, but also, it implies an impact on third parties insofar as it concerns a business that is in operation. In cases such as the present, the operation of a service station would imply considering for new buildings or applications for operating authorization, the impact in terms of risk for the activity intended to be implemented, it being clear that when the service station is operating, provided that activity is legitimate and enabled, it holds a priority and acquired situation that deserves to be protected against new petitions. However, in this case, although the station had been located at that site since 1977, it had not operated since 2005, and at the date of the daycare center's application and its corresponding permit, there was no detail of the progress or fate of the remodeling works, whereby, it is reiterated, the mere expectation of operation was not enforceable against that procedure. Subsequently, once that station sought to obtain its operating permit, it had to submit to the regulations and circumstances in force on the date it intended to reactivate the business, especially considering that the state of uncertainty about its operation is a matter attributable exclusively to it. From this examination perspective, the challenged act does not violate the doctrine of the intangibility of one’s own acts as alleged, for certainly the location permit had been granted by the Health Area of Aguas Zarcas; however, that act was issued in the year 2008, before the works entered into abandonment, so that at the time of determining the propriety of the PSF, such an aspect does not determine the invalidity of the contested denial. Thus, the illegalities and pathological causes expressed as the basis of this lawsuit are not shared, for which reason, in accordance with what is established by articles 128, 132, 133, 136, 158, 166, and 167 of the LGAP, no annulment whatsoever is observed to declare, and therefore the lawsuit must be dismissed in this regard.\n\nXI.- Regarding the claims for damages. Furthermore, the plaintiffs petition for reparation for damages as per the following detail: \"CLAIM FOR DAMAGES. It is requested that the State be ordered in the abstract to pay the damages caused to Nombre138953 and to Nombre26931 Petróleo Costa Rica S.A., amounts that will be proven in the Judgment Enforcement Stage. The damages sought to be compensated are as follows: -The amount of rent that, according to the lease agreement, Nombre138953 was supposed to receive from September 9, 2014, until the moment the Station opens, which monthly is ¢1,500,000.00 colones. As of March 1, 2016, that amount is ¢26,550,000.00. -Interest calculated based on the legal rate of the Banco Nacional pursuant to article 1163 of the Civil Code, on the sums that Nombre138953 should have received monthly from September 9, 2014, until the date on which the Station opens. As of March 1, 2015, that amount is ¢1,256,080.78 colones, calculated pursuant to article 1163 of the Civil Code. (See calculation table in the virtual file on page 37 of the original lawsuit).\" (Images 5-7 of the file, amendment to the lawsuit at images 1450-1451) In the logical context of the lawsuit, the adequate cause of the items formulated as the injuries produced is precisely the issuance of actions that the proponents consider contrary to the legal order, in that they enable the operation of Angelitos Guardería and deny their PSF petition. The invalidity of those formal expressions of the Administration would entail the generation of illegitimate effects which, in accordance with what is prescribed by article 190 of the LGAP, would be the cause of the damage and, therefore, the parameter for granting compensation. However, having established that such behaviors do not suffer from the alleged nullity, it is the judgment of this collegiate body that the claimed amounts are not supported by a basis of imputation that allows generating the duty to indemnify sought in this process. From that standpoint, the claims formulated by the plaintiffs cannot be considered as legally unjustified injuries at their base, nor as damages or patrimonial detriments that can be derived or arbitrarily decanted from public action. Therefore, the dismissal of the lawsuit in this regard must be ordered.\n\nXII.- Corollary. Analysis of the defenses raised. Both the representation of the State and that of the co-defendant Nombre138954 raised the defenses of the lapsing of the action (caducidad de la acción) and lack of right. The first must be rejected for the reasons stated above. The defense of lack of right must be fully upheld, as the validity of the questioned actions has been established, as well as the impropriety of the compensation requests. Consequently, the lawsuit is declared without merit in all its claims.\n\nXIII.- Regarding costs. Pursuant to article 193 of the Contentious-Administrative Procedural Code, procedural and personal costs constitute a burden imposed on the losing party for the fact of being so. Waiver of this condemnation is only viable when, in the Court's judgment, there is sufficient reason to litigate, or else, when the judgment is issued by virtue of evidence whose existence was unknown to the opposing party. In this case, no reason is observed to waive the application of the maxim of condemning the loser, for which reason, costs must be imposed jointly and severally on the losing plaintiffs. In the case of the State, by express request, legal interest is granted on this item, an aspect to be established and defined in the enforcement phase of this judgment, once it becomes final.\n\nTHEREFORE.\n\nThe defense of lapsing of the action is rejected. The defense of lack of right is upheld. Consequently, the lawsuit filed by the companies Nombre138953 and Nombre26931 Petróleo Costa Rica S.A. against the State and Mrs. Nombre138954 is declared without merit in all its claims. Both costs of this process are imposed jointly and severally on the losing plaintiffs. In the case of the State, by express request, legal interest is granted on this item, an aspect to be established and defined in the enforcement phase of this judgment, once it becomes final. José Roberto Garita Navarro/ Silvia Consuelo Fernández Brenes/Christian Hess Araya*-*-*-*-*-*-*-*-*-*-*\n\nFILE: 16-002338-1027-CA\nMATTER: PURE LAW PROCEEDING\nPLAINTIFF: Nombre26931 Petróleo Costa Rica S.A. and Nombre138953.\nDEFENDANTS: The State and Nombre138954.\n\nJRGN.\n\n**IGWTHUP.2018**\n\n| --- | --- |\n| **Document signed by:** | |\n| ROBERTO GARITA NAVARRO, DECISION-MAKING JUDGE (JUEZ/A DECISOR/A) | |\n| SILVIA FERNÁNDEZ BRENES, DECISION-MAKING JUDGE (JUEZ/A DECISOR/A) | |\n| CHRISTIAN HESS ARAYA, DECISION-MAKING JUDGE (JUEZ/A DECISOR/A) | |" }