The Administrative Court number 3 of Santa Cruz de Tenerife has annulled the suspension order and seal of the construction of the cultural and commercial center Arts Lifestyle & Shopping Tenerife and the fine of €190,000 imposed on November 27th and December 9th, 2020, respectively, signed by José Julián Mena, who was then the mayor of Arona.
Judge Cristina Escamilla dismisses the request from the Arona City Council to dismiss the promoter’s appeal as “mere procedural acts” not subject to appeal and agrees with the ruling of Administrative Court number 4 issued on November 11th of last year (also in favor of Arts), therefore upholding the appeal lodged by the company Melisolfi Consulting SL and imposing an additional €1,500 in legal costs on the municipal administration.
This ruling, in addition to the one from November 2023, once again confirms that the reality of the urban infraction has not been proven, involving works, constructions, and buildings without the necessary license on public land, which led to the immediate halt and seal. The judge states that the City Council, through José Julián Mena assuming the responsibilities of Urban Planning, acted “without the presence in the administrative file of a technical report confirming that the works in question were being carried out without the corresponding authorisation.” It is pointed out that the sanctioning procedure maintained the provisional measures based on “a technical report issued on July 17, 2020, which is not attached.” The report was not submitted by the Arona Council and has no connection with the works in question. At this point, the previous ruling already mentioned that the transcription of the report does not prove the facts, as it is “an unfavourable report on the application for a major work license” that does not confirm the actions for which the PSOE municipal government wrongly fined the company, according to the rulings.
The works
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The Arona City Council suspended, sealed, and fined the promoter twice for allegedly carrying out urbanisation works improperly outside their property, encroaching on municipal and state-owned land. Specifically, a private plot of consolidated recreational and sports use – also affected by a terrace of the complex under construction – as well as the public maritime-land domain with work around an amphitheatre and fountain located west of the property which, according to the municipal government of José Julián Mena, do not comply with the authorized project. The court not only refuted these accusations from the Arona City Council but also established that the plot is private. This is reflected and annulled in the rulings of the Administrative Courts numbers 4 and 3 of Santa Cruz de Tenerife.
The City Council did not submit the necessary technical report to justify the measures taken
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The promoter of the Arts Cultural and Commercial Center defended, providing several favourable technical and sectoral reports as well as a notarial record of inspections by Arona City Council technicians, that the works for which they were fined “match those that the Administration ordered to be restored.” It was “solely” the work to finish filling the basement with soil, “in compliance with the resolutions of restoration and reinstatement of legality,” required by the City Council itself. The Council chaired by Mena argued, but never proved, as confirmed by the ruling of Administrative Court number 4, that works were carried out consisting of “adding earth in an area outside the construction and subsequent compaction with a roller.” The company focused on providing the resolutions requiring the restoration of urban legality by demolishing unauthorised and unapprovable works in the basement, documents that were overlooked by the Arona City Council.
Inadmissibility
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The Arona municipal government requested the dismissal of the promoter’s lawsuit arguing that their resolutions were “mere procedural acts” and therefore not appealable. The judge sees it differently. Referring to the Law on the Legal System of Public Administrations and Common Administrative Procedure (Lrjpac) and Supreme Court rulings, she classifies this case as exceptions. She argues that these acts meet the condition that they “directly or indirectly decide the substance of the matter, determine the impossibility of continuing the procedure, or cause defenselessness or irreparable harm.” She explicitly cites the resolution by which the mayor, José Julián Mena, decided to initiate and sign the sanctioning procedure, which “confirms the suspension and seal.” Consequently, it is a “qualified procedural act as it affects the rights of the appealing company.”
Furthermore, the judge refers to Supreme Court jurisprudence to state that the adoption of precautionary measures, which immediately affect those involved (suspension and seal of the work), is not a procedural act, as José Julián Mena claimed. “A doctrine that is perfectly applicable to the case,” the judge adds before determining that “it is appropriate to dismiss the inadmissibility raised by the Administration,” signed by the former mayor.
The ruling opens the door for the company to file a criminal complaint against the former mayor for alleged malfeasance
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At this point, judicial pronouncements seem to strengthen the financial liability of the Arona City Council, which appears to be substantial after six years since the seal. The contentious-administrative procedures – unjustified, palpable, and proven delay in the inactivity of the City Council, reported by the promoter in multiple written complaints, both to the municipality and to the Ombudsman – have delayed for years the granting of the legalisation permits, which puts the promoter in a position to claim damages from the Arona administration and, more than likely, file a criminal complaint against the former mayor, José Julián Mena, and the technicians involved in this case.
The Arts Lifestyle & Shopping Tenerife Centre is located at Paseo Francisco Andrade Fumero, number 1, in Playa de Las Américas (Arona). It remains closed six years after being sealed, pending the approval having all the necessary municipal and sectoral technical reports (Coastal and Territorial Policy) favourable for years. The ruling of Administrative Court number 3 of Santa Cruz de Tenerife issued on the 13th of last month can be appealed.
This ruling and the one issued by Administrative Court numbers 3 of Santa Cruz de Tenerife, both in favour of the promoter of Arts, support and vindicate Luis García, the current Councilor for Urban Planning of the Arona City Council, who has been denouncing alleged malpractice by the previous municipal government in this case, which was one of the reasons cited by then-mayor José Julián Mena for dismissing García from his position in 2020.
