The Contentious-Administrative Court Number 4 of Las Palmas has rejected the appeal filed by the entity Princesa Yaiza SA, owned by Juan Francisco Rosa, to try to legalize the Son Bou hotel. The ruling, dated October 30, thus supports the decision of the Yaiza City Council, which more than three years ago rejected the legalization project presented by the businessman and maintained the order for total or partial demolition of that establishment, which triples the buildability allowed by the General Plan.
The City Council issued that demolition order in January 2016, twelve years after the license was annulled by the courts. At that time, within the execution phase of the sentence, municipal reports confirmed that the hotel could not be legalized even with the new Yaiza General Plan approved in 2014 -which increased the allowed buildability-, so the City Council agreed to order "the replacement of the altered physical reality by demolishing the building".
A month later, Rosa presented a basic partial demolition project together with a renovation project, to try to take advantage of more buildability increase incentives. However, municipal reports rejected this possibility and also concluded that the project still almost tripled the allowed buildability, contemplating 9,348 square meters, when the Plan allows 3,333 on that plot.
Tried to "mask the legalization of what is a priori unlegalizable"
For his part, Rosa questioned that calculation and maintained that the "computable area" was 5,832 square meters, arguing that the 1,500 meters that he would still have more should be recognized as an incentive for the renovation, which is a figure contemplated in the General Plan. To do this, he presented a renovation project to convert this 3-star apartment hotel into a 5-star hotel. However, first the City Council and now the Court have flatly rejected this claim.
"This judge fully shares the considerations made in the legal report on the inadmissibility of using the renovation incentive system to obtain the legalization of buildings contrary to urban planning regulations," the ruling states, which then reproduces part of the municipal reports on which the City Council based its rejection of Rosa's request.
"The renovation incentive system is not designed to legalize buildings that were erected against urban planning regulations, with or without a qualifying title, and that in a use (or abuse) of that right, that excess buildability is legalized," the legal report warned, noting that a "renovation and tourist requalification process that masks nothing other than the legalization of what is a priori unlegalizable" cannot be admitted. This opinion was also joined by another prepared by the drafter of the General Plan, Jorge Coderch, who, among other things, warned that "the buildability and additional places incentives will only be applicable to existing buildings that have a valid license".
The contradictions of Rosa's defense
The ruling also highlights the contradictions in which Rosa's defense, exercised by Felipe Fernández Camero's daughter, Juana Fernández de las Heras, incurred. In her appeal, the lawyer questioned that the City Council denied the license because the businessman did not provide the prior tourist authorization -which was "an essential requirement to be able to access the application of tourist renovation"-, and alleged that what the City Council should have done was suspend the course of the procedure and require Rosa to provide it.
"It is stated in the claim that the administration cannot presuppose the non-existence of the document, but it is the party itself that in its request tries to justify that the prior tourist authorization is not required, taking for granted that it lacks it," the ruling states in this regard. And it is that after questioning that she had not been given the opportunity to provide that document, the lawyer focused on trying to defend that it was not necessary. To do this, she even cited a first instance ruling that annulled some articles of the Tourist Activity Regulations, ignoring that that ruling was later corrected by the Supreme Court, as the Court reminds her in this new ruling.
After concluding that it is not appropriate to apply those incentives, the ruling indicates that this "makes the debate raised in the claim about the computable areas sterile, because even if the thesis defended by the plaintiff were fully accepted, we would be in an area of 5,828 square meters, higher than the 3,333 allowed". Therefore, it rejects the claim in its entirety and condemns Rosa to pay the costs incurred, in a ruling against which an appeal is still possible.
Rosa also denounced unequal treatment with respect to himself
In his claim, which was opposed by both the City Council and the César Manrique Foundation -which is also involved in this lawsuit-, Rosa also alleged a supposed defenselessness, arguing that the City Council did not give him a hearing after collecting the municipal reports and before adopting its decision. In addition, he argued that those reports included "erroneous allegations" that he had not had "the possibility of contradicting or disproving".
However, in addition to concluding that the regulations do not provide for giving the interested party another hearing after the issuance of reports and before the resolution, the ruling indicates that in any case that "would not have caused defenselessness to the appellant, since the same has been able to combat the technical and legal reports" both in the appeal that he presented later to the City Council and in the subsequent contentious-administrative appeal to the Court, which is the one that has now been rejected.
Finally, Rosa's defense even raised in his claim a "difference in treatment" with respect to the legalization procedure of another hotel, the Princesa Yaiza, which is also his property. In this regard, the ruling indicates that the only thing he provided to reflect that supposed different treatment were reports from the architect Ángel García Puerta, which are "manifestly insufficient".
"They are limited to collecting what is nothing more than the subjective and partial opinion of their author, not having been provided, not even, the resolution issued in relation to the Princesa Yaiza hotel, which, without a doubt, would have contributed to clarifying in what terms it was issued," the Court points out, which emphasizes that this is a "relevant issue, because from the reports provided, what emerges is that what was granted was a minor construction license, not a legalization license".