Community, Santa Cruz

Marbella: AyA looks to buy land from a developer under investigation for irregular water administration

Esta publicación también está disponible en: Español
Translator: Arianna Hernández

The Costa Rican Institute of Aqueducts and Sewers (Spanish acronym: AyA) plans to buy a piece of land in Marbella from developer Jeffrey James Allen, whom the Santa Cruz Prosecutor’s Office is investigating for the alleged crime of embezzlement, which consists of stealing or mismanaging State money or assets.

The institution wants to extract water from a well on Allen’s property to supply the communities of Marbella, Veracruz and Manzanillo.

According to file 19-000524-0412-PE, Allen is being investigated for irregularities in water administration. Allen was the president of the Posada del Sol ASADA (rural water board), in Marbella of Santa Cruz, which supplied water to urban development projects in the community, including Ruta del Sol condominium, of which he is a developer.

Exercising the dual role of president and developer is not illegal. However, AyA identified irregularities in his role as president of the ASADA, for example, granting water availability letters without studies. The institution’s investigation culminated in a case being filed with the Prosecutor’s Office, which is still ongoing.

At that time, The Voice visited Allen’s office in Marbella but didn’t get a response from the developer. The only one who commented on the case was one of his collaborators, named Abundio Lopez, also a former member of the Posada del Sol ASADA’s board of directors and its former administrator, who said that the ASADA was created due to the inability to manage Marbella’s original aqueduct.

At a meeting in March of 2021 in the community of Marbella, AyA stated that they would try to receive Allen’s land through a donation or that they could also buy it. However, according to the institution, the decision now is to buy it.

“The owner isn’t willing to donate it, and instead has requested that the land be purchased from him,” according to AyA’s legal department through their press office. “If, at some point. the owner is willing to donate it, of course that would be the first option for us.”

The Voice of Guanacaste called the office of Jeffrey Allen, who answered the phone, to ask him about his position regarding the land’s purchase. However, when proceeding with the inquiry, he hung up and didn’t answer any more calls.

According to AyA’s legal director, Rodolfo Lizano, it is legal for the State to disburse funds to buy land from a person who has been denounced by the institution and investigated by the Prosecutor’s Office.

It isn’t any conflict because public interest prevails. If the land happens to meet [the water supply needs], we couldn’t abandon it for that reason,” he noted.

Lizano also indicated that the purchase doesn’t interfere in any way with the criminal investigation opened against Allen.

From the point of view of environmental lawyer Alvaro Sagot, the institution acts within the framework of legality, as long as there’s no deal that compromises the investigation.

“The issue that could sound immoral or incorrect is whether a negotiation is established in the criminal process,” said Sagot. “Otherwise, as a lawyer, I would say that it’s possible for this to happen, and there would be no problem,” he added.

Why would AyA buy from this developer?

The institution wants to develop a project that supplies water to the communities of Marbella, Manzanillo and Veracruz.

These towns on the coast of Santa Cruz have deficiencies in the distribution network and little water capacity in the wells. They are currently supplied by handmade or illegally drilled wells. In addition, they face urban development that puts the availability of water at risk.

In 2021, AyA began hydrogeological studies to determine which points were the most suitable to extract water. In doing so, they identified one of the most viable sites on a piece of land owned by Jeffrey Allen. With the developer’s authorization, in April of 2021, they drilled an exploratory well on his property and did an analysis of the flow and water quality.

In an interview with The Voice, the regional director of AyA, Eliecer Robles, explained that in the well, they found a capacity of 10 liters (2.6 gallons) per second, sufficient flow to supply the three communities.

AyA keeps the illegally drilled well in Lomas del Sol condominium in operation, supplying 31 of developer Antonio Marvez’s properties. The institution will keep it operative until another water source is set up.Photo: César Arroyo

The amount for which they would buy it is not yet defined, they added. They must complete a study and do the appraisal to determine the amount they would acquire it for.

If the owner doesn’t agree with the appraisal amount, the institution would initiate an expropriation process. This consists of submitting the case to the Court, depositing the amount with that institution to compensate the owner and taking the property for reasons of public interest.

At this time, the institution is working on completing a form that includes the project’s characteristics to send it to the strategic planning department and register it in the Bank of Public Investment Projects, explained the director of AyA’s Strategic Business Unit, Jorge Villalobos.

Once there, they would obtain approval from the Ministry of Planning (MIDEPLAN). With that, the project’s feasibility, design and construction stages will begin. Villalobos added that he expects to submit the project profile form in the first quarter of 2023.

The Voice consulted AyA about the size of the property they would acquire, but they did not provide the specific information at the time of the interview and, by the deadline for this article, they hadn’t shared that information.

A Conflict About Management

It’s important to understand that this is a conflict that has been going on for years. It all began in 2017, when residents of Marbella contacted The Voice of Guanacaste to express their concern about the way that water was being managed in the community: the Posada del Sol ASADA overseen by Allen, owner of several developments, and, in addition, located a few meters from the Marbella ASADA. Both wells were putting pressure on the same amount of water.

The Voice investigated and revealed that, in addition to irregularities with Allen, two other developments by another businessman named Antonio Marvez, Jardines del Sol and Lomas del Sol, used an illegally drilled well. They did so despite the fact that the Ministry of Environment and Energy’s (MINAE) water management had twice requested that they close it.

After revealing the facts, in 2018, AyA took over the aqueducts of the Marbella and Posada del Sol ASADAs, as well as the illegal well that supplies the Marvez condominiums.

In addition to irregularities in the Posada del Sol ASADA, the institution also learned that the Marbella ASADA granted water capacity and potable water certificates to Marvez without fulfilling everything required by law.

Marvez has indicated that he has never refused to collaborate to put the systems in Marbella in order. “The institution (AyA) has simply not wanted to receive the infrastructure that they originally endorsed and which they guided me to invest in years ago,” he told El Observador media outler.

Marvez has even asked the Municipality of Santa Cruz to take over the potable water service, because he believes that AyA has been slow and doesn’t have the resources to provide a quick water supply solution, but that isn’t possible according to legislation.

As part of the intervention in 2018, AyA closed the Marbella ASADA’s well. Marvez’s condominiums— which total 31 properties— continue to be supplied by the well and the system that he built, whose source is located in Lomas del Sol. It will continue that way until AyA provides a solution with the new well.