The Contentious-Administrative Court Number 3 of Las Palmas has confirmed that the agreement that allowed the occupation of a public green area to install the Kikoland was "null and void." Thus, it has rejected the appeal filed by Juan Francisco Rosa, through the entity Princesa Yaiza SA, against the City Council's agreement that annulled that agreement in December 2016.
The agreement was approved in 2004, under the Mayoralty of José Francisco Reyes, and previously no administrative procedure was carried out. "It is not only the absence of legal, technical or auditing reports, but also the slightest procedure for the achievement of the agreement," states the ruling that dismisses Rosa's appeal, also condemning him to pay the procedural costs generated.
Under that agreement, the City Council ceded free of charge three plots of 30,000 square meters for 50 years, without even establishing the payment of a fee. One of those plots is occupied by the Kikoland and another by a mini-golf course at the Playa Dorada hotel, while the third, located between the Princesa Yaiza and the Papagayo shopping center, has not yet been given any use.
"Particularly serious and obvious" facts
A decade later, the Yaiza City Council began to study the occupation of this and other green areas of Playa Blanca, which should have been public spaces and are occupied by private facilities. Finally, in December 2016, the annulment of this agreement was brought to the Plenary Session, based on an opinion from the Advisory Council that concluded that its approval was "null and void."
It was then that Juan Francisco Rosa went to the courts asking for that agreement to be annulled. However, his claim has been rejected by the Court, with a ruling against which an appeal is still possible and which endorses the decision adopted by the City Council.
"There is no statute of limitations for the review of the plenary agreement of 2004, given its impact on the general interest, as it refers to roads, green areas and other land subject to transfer," the ruling underlines, thus responding to one of the arguments of Rosa's defense. Thus, it insists that "the ex officio review of an act that is null and void can be carried out at any time," given that it is intended to resolve situations that are "particularly serious and obvious," as it considers to be the case here.
Criminal proceedings opened for the same facts
"The appellant makes a profuse argument about the collateral effects of the declaration of nullity of the agreement and the possible economic responsibilities of the Administration, but none of it serves to justify its main claim, which is the declaration of nullity of the agreement," the Court concludes in its ruling, in which it points out that if the company intends to claim "property liabilities" from the City Council, it must be resolved in another procedure, although it underlines that so far they have not even been requested.
What is open for these same facts is a criminal case, following the complaint filed last year by the Podemos group in the Cabildo against the former mayor of Yaiza, José Francisco Reyes, the former secretary, Vicente Bartolomé Fuentes, and the businessmen Juan Francisco Rosa and Juan Luis Lorenzo, as well as the companies Hotel Princesa Yaiza, Salmepa and Getsu No Denwa, which was the one with which the agreement was signed and which was later absorbed by Hotel Princesa Yaiza SA.
After analyzing the content of that complaint, the Court of Instruction number 4 of Arrecife already agreed to open proceedings last December, to investigate the occupation of green areas that should have been public.
Devastating report from the Advisory Council
Regarding the ruling that has just been issued by the Court rejecting Rosa's appeal, it also reproduces a good part of the forceful opinion made by the Advisory Council at the request of the Yaiza City Council, which commissioned a report before taking the annulment of the agreement to the Plenary Session. That opinion, on the one hand, concluded that the agreement was approved in its day with a "total omission of the procedure," since not even a report from the Secretariat or the Technical Office assessing the legality of the agreement was drawn up. But in addition, it warned that rights were granted to the company "without meeting the essential requirements for it."
Among the numerous grounds for nullity of that agreement, the legal reports questioned that a clause was also included allowing the extension of the transfer beyond the 50 years initially planned. For this, the agreement indicated that a public tender would be called, although at the same time it established preferential treatment for the company managed by Rosa, to which the right of first refusal was granted. In this way, even if there was a better offer, the company would have the right to match it and keep the concession.
According to the Advisory Council's report, that clause "has no protection whatsoever either in the regulations governing state-owned concessions or in the regulations governing public procurement." And the same was pointed out about the initial award approved in 2004 under this agreement. In this regard, the opinion endorsed the legal report that the City Council had already prepared, which pointed out that allowing "a private company the private use of public green areas violates the legal system."
The City Council pledged to take on the workers
In addition, the agreement also established that "once the exploitation period and, where appropriate, the extensions have ended," the City Council would take charge of the personnel that the company had hired to work in those facilities, "with their salaries, seniority and the remaining rights that they had recognized." With this clause, the Advisory Council pointed out that "the regulations for access to public service" were also violated, since it implied a commitment to take on workers by the City Council.
In return, the supposed benefit for the City Council was that the company would withdraw the lawsuit it had filed in the courts, claiming alleged rights over that land. However, although it acquired the plots in an auction in 1998, the truth is that those plots had already been previously ceded to the City Council, when the development of that Partial Plan was approved, within the mandatory compensations that it should receive for roads and green areas.
"The only thing that the company could agree with the City Council was the documentary formalization of the mandatory transfers," the Advisory Council points out in this regard, which makes it clear that no other type of agreement or agreement was possible.
