By Ellen Zoe Golden y Marisol Arias Photo by Tamarindo News Staff
On May 22, the construction of a restaurant on a piece of land many believe to be the site of a Municipality-sanctioned public park was legally halted.
The plot is currently facing a legal dispute between the concessionaire of the site who wants to build a restaurant and a group of neighbors who are pushing for the development of Pico Pequeño Park.
The closure notice was slapped on the outside of the building site after attorney Walter Brenes of the Energy Law firm continued to fight the legal battle on behalf of a group of Tamarindo’s community against Carlos Cárdenas for the rights to beachfront land between markers 126 and 128 across the street from Cabinas Marielos.
Brenes’ group is hoping that property will become Pico Pequeño Park.
As THE Tamarindo News went to press, Brenes had submitted solicitations on behalf of about 9 Tamarindo citizens to the Municipality of Santa Cruz.
This was a legal reaction to address the failure to carry out the decree made by the Municipality in early April, one that would stop construction on the restaurant while the Council investigated just who has the legal rights to the land.
“The time for response by the part of the Municipality will be up soon—they have 60 days,” explained Brenes.
“Failure to respond to these solicitations will be followed by further legal action.” According to Brenes, those concession rights have been disputed by Cárdenas, who claims he filed all the legal papers to assume those rights from current concession holder Elder López Duarte to build his restaurant.
On the other side of this matter is the community, represented by about 500 signatures submitted to Santa Cruz and vocalized by architect John Osborne, who received permission from the Municipality in 2016 to proceed with Pico Pequeño Park.
Osborne, along with architect José Colombari and Veritas University students designed the plans to build the park, and earlier this year, the Tamarindo contingent received an allocation of funds to complete their public project.
These new legal actions stemmed from the fact that the Alcaldía did not follow through on the order given by the Municipality Council on April 7 which was to halt the construction of the restaurant for 22 working days while they pursued an investigation on the two permits given to the two different factions for the same area.
Since the construction continued unabated, on April 11, Brenes filed a medida cautelar, an injunction, which as of the end of May was still being evaluated by the Tribunal Contencioso Administrativo based on a lack of response from the Municipality, and also, “a failure to respond on behalf of the concession holder Elder López Duarte. All this while the construction continued with an existing order to halt it for 22 working days,” the lawyer added.
The new legal orders filed by Brenes on May 18 asked Santa Cruz’s executive branch to 1) start the process to cancel the concession, 2) start the process to cancel the construction permit, and 3) paralyze the construction until all these processes have been resolved.
The construction of the restaurant was halted on May 22. This order will remain in effect indefinitely, according to Brenes.
“Ultimately, we think that the court will fall in our favor, and we are very optimistic with this case,” Brenes said. “In this moment, we are just waiting for the final resolution. Maybe that will be communicated with us this next week (end of May).”
In the area in question, it can be noted that the restaurant construction is taking up a part of the total disputed area. Some have asked if the restaurant can be built on a portion of the land, with the remainder of the property developed into the park, as compromise.
“The area of the park was comprised of three concessions and a storm drain easement,” clarified Osborne.
“The cafe was permitted in one of the three concessions. At the beginning of 2016, the Municipal Council, based on a report executed by the Alcaldia’s legal department recommending the declaration of the entire area to be of public interest and for the park, did just that in a unanimous accord. Ten months later, the Alcaldía gave a construction permit to a cafe in one of those three concessions and thus arose the problem.”
“ADI (Asociación de Desarrollo Integral de Tamarindo) has proposed the cafe be built and the park be built but smaller. In other words, redesign the park so that it fits to its new, shrunken site. We have opposed this because both the concession and the cafe have been processed infringing the law. The concession has legal irregularities as does the construction permit. This is the main reason it is a problem for all of us fighting for the park. Their position is illegal.”
He added: “The other main reason being the area had already been declared of public interest and destined for a park in which I and Jose Colombari were given the order to design in that specified area prior to any conceptualizing or process begun for the cafe. It is the main problem with all public space in Tamarindo. It is not respected and is abused.”
In order to move forward with its declaration of rights by the Tamarindo group for Pico Pequeño Park, the Municipality will need to enter into a legal battle with the concession owner López Duarte, who, according to Osborne, has yet to express any voice in this matter.
Should the Municipality rule in the town’s favor for the public park, Osborne said that Santa Cruz will be required to leave the property in its former state, which was a grassy field. That task would take eight backhoe hours, and necessitate four dump trucks. In total, the work would be about two days.
Restaurant owner takes legal action on his behalf For his part, the owner of the construction was consulted by THE Tamarindo News about his position.
He indicated: “First, explain the real facts to the people of Tamarindo: 1) The area designated for the park is located between landmarks 127-128, former Cabinas Dolly, demolished January 2008, approximately 1300 m2. Today, it’s a parking place. 2) Since 2004 (4 years before the demolition) there existed an adjacent concession for commercial use of 225 m2, landmarks 126-127 that belongs to Elder López, approved by the ICT, Municipal Council and the Alcaldía, published in La Gaceta 2004. See web Registro Nacional 3) In 2015, in an irregular way and upon a request of a group, the Municipal Council declares the area to be of public interest to build a park, including landmarks 127-128, mistaken as part of the parking place. Nothing was said to us. 4) We totally support the park project.”
“In 2016-17 we filed construction permits before the entities required by law, which were approved. We began to build. Then architect John Osborne tells us that he´s in charge of the design of the park, which is against the construction. According to him, the land is destined for the park. He says so without considering the legal documents we present. I find it irresponsible and unprofessional on his part. Who reviews a construction but has not made the registration study to the land? How did he pretend to get the permits? We are being interfered with complaints and, along with a group of mostly foreign people, our workers are threatened, filmed using drones and intimidated. I reported in Court a foreign individual called Menking who threatened me,” explained Cárdenas.
Cárdenas indicated that he will also take legal action. “The people of Tamarindo were misinformed, in order to gather signatures and submit them to the Municipal Council, who appears to have lack of knowledge in terms of Municipal code and laws. Now, the President of the Council has resigned and the Alcaldía, to comply with the Council´s orders, paralyzed the works one more time. We´ve lost a lot of money unfairly; that is why we are bringing legal remedies to the respective tribunal and Constitutional Court.
This issue is being deeply investigated. There are responsible individuals in and outside the Municipal Council. What would you do if two years ago, the Municipal Council, by mistake or ignorance, without any notice, had given your property to build a park? Justice will be done,” added.