“It is proven that the material infractions prevent legalization.” With that forcefulness, the Contentious-Administrative Court Number 5 of Las Palmas has just overturned the attempt to save the Papagayo Arena hotel from demolition, which has up to three rulings declaring its illegality, two in the contentious-administrative channel and another in the criminal channel, within the Yate case.
In an order dated last Thursday, January 20, the Contentious Court orders the “full execution” of one of those rulings - which is already more than ten years old - and concludes that the “non-compliance” of the ruling by the Yaiza City Council has been “verified”. And it is that the hotel continues to occupy public land to this day, which should be a large access road to the beach.
In total, the public area occupied would exceed 6,500 square meters, since the road should be almost 200 meters long by 5 meters wide, to which would have to be added another 14.4 meters of setback on each side, according to current regulations.
“In compliance with the ruling that is executed, it must be ordered, based on the declaration of radical nullity of the acts, the restoration of the urban and territorial legality infringed, carrying out the necessary actions for this,” the order states. Thus, given that it warns that the invasion of the public road is “illegalizable”, the only way to “restore legality” is through demolition.
That is what both the Cabildo and the Urban Transparency association demanded, which urged the execution of this ruling. Both also recalled that the construction was possible thanks to the crimes of prevarication committed by the former mayor, José Francisco Reyes, who in the Yate case confessed that he granted these and other licenses knowing of their illegality and in exchange for the collection of bribes.
Yaiza and the property opposed
For their part, the property and the Yaiza City Council opposed this execution, and even asked the Court to abstain. To do this, they argued that there was already another process open before the Superior Court of Justice of the Canary Islands, which was the one that issued the first ruling pending execution, referring only to the hotel's construction licenses.
However, the magistrate makes it clear that this other ruling must also be executed, since, as the Cabildo had defended, “different acts were reviewed.” In this case, what was annulled was a previous decree granted by José Francisco Reyes in 1999, which authorized the grouping of two plots. Thanks to this, the hotel was built as if it were one, “eating up” that road that should be maintained between the two. In addition, it also declared null the decrees that authorized the model of the hotel project and the project of the final state of the works.
The reason they were appealed later was that Reyes hid those permits from the Cabildo, just as he did with other licenses, until the Justice ordered him to comply with the law and make those notifications. That is why they were denounced later and resolved in this other procedure, in which the execution of the ruling has now been ordered.
In addition, the great change that this ruling brought about is that it did enter into the substance of the urban breaches, unlike what the TSJC did with the construction licenses. In that case, as happened with other rulings that annulled hotel licenses in Playa Blanca, the Chamber saw sufficient reason for nullity in formal issues, such as the fact that the City Council did not request the mandatory compatibility reports to grant the permits. That is why he declared them illegal without analyzing the rest of the reasons, which has complicated the execution phase of the ruling, since all the breaches have not been detailed.
However, the same did not happen in this other ruling of the Contentious-Administrative Court, which has now reiterated that there was a “flagrant violation” of the Partial Plan itself. In addition, it emphasizes that the regulations in force still contemplate that public road, and that is why it concludes that what has been executed is not legalizable.
The City Council “ignored” this ruling in the legalization attempt
“The present execution is not conditioned by what is determined in the legalization procedure that the City Council is processing for the rest of the building, but the other way around,” the Cabildo's defense had warned, opposing the arguments of the City Council. “In the legalization procedure, only the building that can be legalized outside the land destined for the pedestrian road and its setbacks can be determined,” he pointed out in this regard.
In addition, he questioned that the City Council had ignored the existence of this ruling in the attempt to legalize the hotel. In this regard, he recalls that the City Council and the property presented an agreement in the Courts - without giving a hearing to the Cabildo, despite being the plaintiff party -, “obviating” this ruling and “treating the aforementioned public road as if it were an easement or private land”, instead of public land, which is what has been judicially proven.
When it became aware of that “fraudulent agreement”, the Island Corporation appealed it and it was annulled by the TSJC, so that legalization attempt continued without prospering.
“It is intended to consecrate the invasion of the road”
“It is intended to maintain and consecrate the invasion of the road,” the Cabildo's defense denounced before the Court, in response to the allegations of the City Council, which argued that the legalization procedure that it has open justified that this other ruling was not executed.
Regarding that attempt, he questioned that the “legalization project has been divided into two”, proposing on the one hand the legalization of the hotel and on the other a project of “access to the sea.” However, that access to the beach is established from the outside of the hotel, without respecting the road that continues to be included in the current planning and maintaining the occupation of public land, which the Cabildo describes as a "legal aberration." And he considers the same of other arguments put forward by the City Council, such as the project presented by the property to establish a passage to the sea from inside the hotel, crossing stairs and elevators.
“What these projects intend is not to legalize the existing hotel by adapting it to the applicable urban regulations, but to change the applicable urban regulations to be able to legalize the hotel,” warned the Island Corporation, which insisted that this change in planning can never be authorized through a license.
In addition, he questioned that the City Council used as an argument that in the Registry and in the Cadastre there appears a single plot instead of two, and stressed that precisely that should have been prevented by executing this ruling that the City Council did not comply with, and that annulled the decree that allowed them to be grouped together. In this regard, the Court's order, against which an appeal is still possible, orders that this resolution be notified to all the “competent authorities,” so that they proceed to that “restoration of the urban and territorial legality infringed.”
