Nosara, Nicoya, Nature

Municipality of Nicoya keeps building code on hold in Nosara despite winning court case against businessman

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

In June, it will be three years since the temporary building code in the Ostional Refuge’s buffer zone was filed away in the Municipality of Nicoya. The local government promoted it to regulate construction in the district of Nosara and in that way protect the ecosystem where thousands of turtles come to lay their eggs. However, a series of judicial processes keep it unenforced.

The municipality began to apply the code in February of 2020, but it became inactive in June of 2021 after a lawsuit was filed before the Contentious Administrative Court (Spanish acronym: TCA) by the company JBR Capital Ventures, owned by hotel and real estate businessman Jeffrey Grosshandler. After the lawsuit was filed, the TCA implemented a precautionary measure that rendered the code invalid. Finally, in October of 2023, the TCA rejected Grosshandler’s lawsuit.

Seven months after the decision, the municipality still isn’t applying the building code. Why? According to Gerardo Carvajal, the Nicoya Municipal Council’s legal advisor and the lawyer representing the municipality in the process before the TCA, it was unclear if the court’s ruling gave the green light to applying the code.

In the ruling that agrees with us and declares the lawsuit void, the judge does not expressly refer to the issue of lifting the [precautionary] measures,” said Carvajal.

Despite the lack of clarity, it wasn’t until April 22 of this year that the local government sent a request to the Contentious Court to lift the precautionary measure and restore the validity of the regulation.

To the mayor of Nicoya, Carlos Armando Martínez, the time that has passed “isn’t that much.” He limited himself to saying, “We are following up. However data from the Federated College of Engineers and Architects (Spanish acronym: CFIA) show the accelerated pace of new buildings in Nosara: The intention to build housing in the district went up by 27% between January and April of this year compared to the same months last year.

In light of the request from the municipality, the court gave three business days so that the parties involved in the dispute could respond to the issue. Again Grosshandler’s company objected. This is stated in a document sent to the court by the legal representative of JBR Capital Venus, Ernesto Jinesta.

Since Wednesday, May 8, The Voice has tried to speak with Grosshandler’s legal representative, Ernesto Jinesta, but by the deadline for this article, the communications manager indicated that Jinesta couldn’t answer the news outlet because he was at a hearing.

The Nosara Civic Association, also involved in the legal process as a coadjuvant, also responded to the court and requested lifting the precautionary measure.

Now the municipality will have to wait for a response from the Contentious Court to find out if they can apply the building code.

“If the judge reaffirms what we believe, that the precautionary measure has no effect at this time, there’s no next step. That ruling would give us the green light to continue with the validity of the code,” Carvajal commented.

During the year and a half that the plan was in force, the municipality granted 283 building permits in Nosara and rejected 13 applications due to failing to comply with the parameters of the temporary plan. The developers of 11 of the rejected permits adapted the projects to the code’s guidelines and finally obtained the green light, according to information provided to the Nosara Civic Association (NCA) by the previous coordinator of the municipality’s Department of Construction Control and Public Works, Josué Ruiz.

While the building code remains inactive, Nosara’s development and harmony with the Ostional National Wildlife Refuge practically depends on the will of the community and the investors themselves.

“As long as it meets the requirements, a construction permit can’t be denied,” commented the Municipality of Nicoya’s coordinator of construction control, César Espinoza, in an interview with The Voice in September of 2023.

The requirements that Espinoza referred to include the municipal requirements, the Forestry Law (Law 7575), the Water Law (Law 276) and the regulations of the National Institute of Housing and Urbanism (INVU).

Plan will remain in dispute

A few days after the court’s ruling in favor of the municipality, the TCA also received an appeal against the ruling, confirmed the Judiciary press office.

An appeal is a request to the court to review the resolution again in the event of a possible illegality in the criteria. Currently, the appeal is under review in the First Chamber.

Marvin Carvajal, a public law partner at the Alta Batalla firm, commented that the court could take months, or even years, to rule on the appeal.

“Now the First Chamber must analyze whether to accept the appeal for study. If they don’t do so, the sentence would become final. If they do, they will rule on the appeal and can uphold or revoke what was established in the sentence or order a new trial,” said Carvajal.

The Alta Batalla firm represents the Nosara Civic Association (NCA) in this process. The association was one of the parties that created the building code along with the municipality.