The Superior Court of Justice of the Canary Islands has rejected the appeal filed by Hotel Princesa Yaiza S.A. and has ratified the ruling that confirmed that it was illegal to cede land from the City Council free of charge to this company to build the Kikoland, which was installed in what should be a green area for public use. The new ruling, dated December 18, also imposes on the company owned by Juan Francisco Rosa the payment of the costs generated by this new appeal.
In its ruling, the court points out that the reasoning of the appealed ruling, issued in April 2018 by the Contentious-Administrative Court Number 3 of Las Palmas de Gran Canaria, "are impeccable and are sufficient on their own to dismiss the appeal", concluding that declaring "null and void" the agreement signed in its day by José Francisco Reyes is a "fair solution to the case".
It was the Yaiza City Council itself that decided to review that agreement after a report warned of the occupation of public green areas of Playa Blanca by private companies. Finally, two years after the issuance of that report and after requesting an opinion from the Advisory Council, in December 2016 the Council approved the Plenary to declare that agreement null, among other things because it was signed without a single legal or technical report and without processing any type of file. After the decision of the City Council, Rosa went to the Courts, which have now rejected his claims for the second time.
"The appeal attempts, through repeated and extensive arguments, to reach the conclusion that it is beneficial for public order that his represented party makes private use of public assets, without any type of administrative, technical, legal or any other type of control procedure being necessary to acquire that right", the City Council stated in its writing opposing Rosa's appeal, which is also "shared" by the Chamber of the TSJC.
Free transfer for 50 years
Under that agreement approved in 2004, the City Council freely ceded 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.
"It is not only the absence of legal, technical or supervisory reports, but of the slightest procedure for the achievement of the agreement", stated the judgment of first instance, which is reproduced in full by the TSJC. In addition, that ruling described the facts as "particularly serious and evident", thus indicating that there was no statute of limitations to review that agreement, as Rosa maintained.
"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", also stated the judgment that has been ratified by the court.
"Absolute omission of the procedure"
In addition, the ruling also reproduces a good part of the opinion issued 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. That opinion, on the one hand, concluded that the agreement was approved in its day with an "absolute 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 reasons for nullity of that agreement, the legal reports questioned that a clause had been included allowing the extension of the transfer beyond the 50 years initially planned, also establishing that at that time preferential treatment would be given to Rosa's company if it were put out to tender.
Similarly, it concluded that allowing "a private company the private use of public green areas violates the legal system". In addition, it also pointed out that "the regulations for access to public service were violated" with another clause of the agreement, which 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 remuneration, seniority and the remaining rights that they had recognized", thus accepting a commitment to assume workers by the City Council.
Open criminal case
In addition to this administrative route, by which the agreement has already been annulled and Rosa should leave those lands, there is also an open criminal case for these events, following the complaint filed in 2017 by the Podemos group in the Cabildo against the former mayor of Yaiza, José Francisco Reyes, the secretary at the time, 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 Investigating Court number 4 of Arrecife already agreed to open proceedings a year ago, to investigate the occupation of green areas that should have been public.
