Monday, February 1, 2016

Watchtower v. Municipio de Dorado, 2014 DTSPR 138

Translator's Note:

This document is a translation of a decision by the Supreme Court of Puerto Rico. It is only an approximation of that judgment. For the definitive version in Spanish, see  www.lexjuris.com/LexJuris/tspr2014/lexj2014138.htm.

2014 DTS 138

WATCHTOWER BIBLE V. MUNICIPIO DE DORADO Y OTROS, 2014TSPR138

Watchtower Bible and Tract Society of New York, Inc., et al.
Appellees
v.
Municipality of Dorado, et al.;
United States District Court for the District of Puerto Rico
Appellants

Certification
2014 TSPR 138
192 DPR (2014)
_ 192 D.P.R. ___ (2014)
2014 DTS 138 (2014)
Case Number: CT-2013-14                                     
Date: 18 November 2014

Petitioning Party: District Court of the United States for the District of Puerto Rico

Counsel for the Appellant:       Lcda. Nora Vargas Acosta
                       
Counsel for Appellee, Dorado Municipality: Lcdo. Hector Rivera Cruz
           
Amicus Curiae:           
DBR Dorado Owner,
LLC Coco Beach Maintenance, Inc.;
Serralles Hotel:                     Lcdo. Jaime Toro Monserrate
 
Department of Justice: Lcda. Margarita Mercado Echegaray
Attorney General
           
                                   
Subject: Civil Code of Puerto Rico, Art. 256 public streets -are those paid for by the same people or with Puerto Rico Treasury funds that are intended for public use. There are private streets under the legal system of Puerto Rico, those that fall outside the category of public streets.

WARNING
This document is an official document of the Supreme Court which is subject to changes and corrections in the process of compilation and official publication of the Court's decisions. Electronic distribution is provided as a public service to the community.
Opinion of the Court issued by Associate Justice Mr. Rivera García.
In San Juan, Puerto Rico, on November 18, 2014.
            The present appeal of inter-jurisdictional certification requested by the Federal District Court for the District of Puerto Rico (District Court) allows us to answer the following question: Do the laws of Puerto Rico allow the existence of private residential streets? After examining the rule concerning civil law for the classification of goods and the applicable legislation, we answer affirmatively. We resolve that the existing legal system provides for the existence of public residential streets and private residential streets. Those of public character are referred to in article 256 of the code Civil, which -as will be explained later- establishes that assets for public use in Puerto Rico are those funded by the people themselves or with Puerto Rico Treasury funds that are intended for public use. There will also be private streets which fall outside that category. A circumstance which, as we will explain, is subject to the actions of the legislature to determine what constitutes a public purpose. 
            Below we set forth the procedural and factual discourse that originated the present appeal and the foundations underpinning our determination.
I
In 2004, Watchtower Bible Tract Society of New York and the Christian Congregation of Jehovah's Witnesses of Puerto Rico, Inc., filed a lawsuit in District Court against the Government of Puerto Rico and several municipalities and urbanizations. In this they argued that the Access Control Act, Law No. 21 of 20 May 1987, as amended, 23 LPRA sec. 64,  et seq., (Access Control Act) was unconstitutional on its face and in its application because it allegedly violated their rights to freedom of expression and freedom of religion.[1]·The contention of the plaintiffs was that said law prevented them entering certain developments even though the streets of these were public.
After several procedural steps, the United States Court of Appeals for the First Circuit held that the Access Control Act was constitutional on its face, but not in its application. According to the federal appellate forum, the way in which the law had been implemented in some instances was violating the right of the plaintiffs to exercise their constitutional freedoms. Watchtower Bible and Tract Society of New York v. Sagardia, et al., 634 f. 3d 3 (1st Cir. 2011). In view of this, it sent the case back to the District Court for further deliberations.
Once the case was returned, in February 2012 District Court ordered defendant municipalities to submit alternatives so plaintiffs could enter the urbanizations with access control, regardless of whether they will operate with or without security guards. [2]·as part of those procedings, the Municipality of Dorado argued that the aforementioned order did not apply to the urbanization Brighton Country Club (BCC), located in its jurisdiction. As a rationale, it pleaded that its streets were private because they were paid for with private funds and because they had not been transferred to the municipal authority. Thus, it indicated that it was the Association of Residents of·BCC·who had ownership of said streets.
Eventually, the Municipality of Dorado submitted certain documents which, in its view, established that the streets of BCC were private.[3]·Among other documents was the approval of the Municipality of Dorado for the construction of the project -on condition that the streets were to remain private— and the discussion of restrictive conditions in which it was explained that maintenance of the streets was the responsibility of the Association of Residents.
Faced with this dilemma, on 19 June 2013 the District Court directed us to answer the following question:·Do the laws and Constitution of Puerto Rico allow for private roads? [4]·On 17 July 2013 we accepted the request solely to study if the laws of Puerto Rico allow the existence of private residential streets. As a matter of fact, in October of that same year, the entities DBR Dorado Owners LLC, Coco Beach Maintenance, Inc., and Serralles Hotel, Inc., requested to appear jointly as amici curiae, to which we agreed.[5]·On those same terms, we invited the Department of Justice to join the case.[6]·Finally, in accordance with Rules 4 and 41 of the Regulations of the Supreme Court of Puerto Rico, 4 LPRA Ap. XXI-B, we accepted oral arguments on 11 February this year, when we had the opportunity to hear the positions of the parties and the amici curiae.[7]
            With the benefit of the appearance of the parties, of the written arguments of the amici curiae and the arguments presented at the hearing, we will answer the question under our consideration.
II
A. The recourse of inter-jurisdictional certification
Our procedure of civil law provides for two types of certification recourses: the intra-jurisdictional and the inter-jurisdictional.  As we know, inter-jurisdictional certification is what empowers a court to submit to another court, of a different jurisdiction, questions about equivocal issues relating to the law of that jurisdiction. See: Martínez Marrero v. Gonzalez Droz, 180 DPR 579, 584-585 (2011); Santana v. Governor, 165 DPR 28, 42 (2005); Guzman v. Calderon, 164 DPR 220, 227 (2005); Pan Ame. Comp. Corp. v. Data Gen. Corp., 112 DPR 780, 783 (1982). This, since when state law is not clear, the federal court usually refrains from deciding matters relating to that law that may be decisive in a lawsuit before it. Pan Ame. Comp. Corp. v. Data Gen. Corp., supra, pp. 784-785. The abilty of this Court to review issues that are certified to it is discretionary. Guzman v. Calderon, supra, p. 228. However, in doing so, determinations we make are binding in any subsequent proceedings between the parties, under the doctrine of res judicata. Pan Ame. Comp. Corp. v. Data Gen. Corp., supra, pág. 784.
This type of appeal establishes a useful collaboration between State and
Federal jurisdictions. See, Santana v. Governor, supra, p. 43; Medina & Medina v. Country Pride Foods, 122 DPR 172, 181 (1988). Similarly, it helps to preserve and respect the role of State courts to interpret and formulate State law. Muniz-Olivari v. Stiefel Labs, 174 DPR 813, 818 (2008); Santana v. Governor, supra, p. 42; Pan Ame. Comp. Corp. v. Data Gen. Corp., supra, p. 785.  Thus, it recognizes the primacy of the rules of civil law for the resolution of disputes in private law. Martinez Marrero v. Gonzalez Droz, supra, p. 585.
The resource of inter-jurisdictional certification is established in subsection (f) of Art. 3.002 of the Law of the Judiciary in 2003, which states that the Supreme Court of Puerto Rico
, using self-certification, can learn about any subject for which it is certified by the Supreme Court of the United States of America, a Circuit Court of Appeals of the United States of America, a United States District Court, the highest court appeals of any of the States of the United States of America, as well as by the courts of lower hierarchy of any of the States of the United States of America, at the request of any of said courts, while there exists before the requesting court any judicial matter which involves issues of Puerto Rican law that can determine the outcome of the same and with respect to which, in the opinion of the requesting court, there are no clear precedents in the jurisprudence of this Court. Law of the Judiciary of 2003, law No. 201 of 22 August 2003 (4 LPRA sec. 24s).
 
            In its turn, rule 25 (a) of the Regulations of the Supreme Court of Puerto Rico enlightens us on this matter. In regard to this point, the rules say that
this court may address any matter for which is is certified by the Supreme Court of the United States of America, by a Circuit Court of appeals of the United States of America, by a District Court in the United States of America or or by the highest appeals court of any of the States of the American Union, when any of these courts requests it, and there exists before the requesting court any judicial matter in which Puerto Rican issues that may determine the outcome of the matter and with respect of which, in the opinion of the requesting court, there are no clear precedents in the jurisprudence of this Court. Rule 25 of the Rules of the Supreme Court of Puerto Rico (4 LPRA Ap. XXI-B).
Similar language is contained in Rule 52.2 (d) Civil Procedure of 2009 (32 LPRA AP. V).[8]·
It is appropriate to note that the certified questions should be framed in the context of detailed and specific facts. Pan Ame. Comp. Corp. v. Data Gen. Corp., supra, p. 786. However, the specific terms used by the Federal Court do not limit our ability to resolve the controversy pursuant to our better understanding of the record, or restrict the scope of our interpretative function. Cordova & Simonpietri v. Crown American, 112 DPR 797, 799 (1982).
In this case, we will decide whether Puerto Rican law allows the existence of private residential streets. We emphasize that it is not our role to pass judgment on constitutional disputes[9]raised by the parties, suitable to a lawsuit that should be heard in the federal forum. Similarly, it is not up to us to give an opinion that extends beyond our authority as a judicial forum, thereby upsetting the limits of functions specific to the Legislative Assembly of Puerto Rico. That said, let us examine the relevant legal standard.
B. Analysis of the doctrinal framework

Although this Court has not expressed itself as to whether there may be controversy over whether there can exist residential streets of a private nature, in the context of this case, the reality is that there is a new issue. On the contrary, it is a question that the doctrine was considered and for which there have been found answers. On the one hand, there are those who consider that there is no legal impediment for an urban or residential street to be private in nature. On the other hand, there are those who believe that it is inconceivable.
For example, according to the Spanish scholar Martín Blanco, the possibility of a so-called "private street" is based on the systematic, logical, literal interpretation and administrative working of article 344 of the Spanish Civil Code, analogous to Art. 256 of our Civil Code. Martin Blanco, Las urbanizaciones privadas y su posible configuracion juridica, Madrid, Ministerio de la Vivienda, Servicio Central de Publicaciones, 1973, p. 75. However, Mola conceives that it is inadmissible that the street, as an eminently public concept, may be private, and qualifies the idea as "aberrant".  See M.A.del Arco Torres, Diccionario de Derecho Civil, Granada, Editorial Comares, 1999, p. 181.[10]·On the other hand, Professor Garcia Cardenas says that even
in the urbanizations which are constituted under the aegis of the Condominium Act, there are no private streets. In these the driving area is part of the common elements. I.e., what looks like a street is not·per se·a street, but is equivalent to the corridor that connects the apartment to the public street in a vertical construction. M. E. Garcia Cardenas, Derecho de urbanizaciones: servidumbre en equidad, controles de acceso e instalaciones vecinales, San Juan, Ed. Interjuris, 2010, pp. 82-83.
 
As we see, there are different views on the concept of the private residential street. In the past this Court has expressed itself on other controversies related to the streets. As we will see later, however, on such occasions the ownership of these was not in dispute. In this case we can evaluate this issue from a different perspective. This, because the question that occupies us arises from the allegation that the streets of an urbanization are not public because they were paid for and maintained with private funds and because they were never ceded to the municipality.[11]·In this context, what is for us to resolve today is whether our legal system allows for the existence of private streets.
In order to adjudicate this dispute, it is unavoidable that we must first review how the Puerto Rico Civil Code classifies goods according to their ownership. We will then discuss with special emphasis the legal regime that applies to the category of goods of the public domain, which is how the Code categorizes streets and local roads. This is important since, as we shall see, goods of that nature (public) cannot be the property of a particular person. In this exercise, we will analyze the Civil Code of Puerto Rico together with jurisprudential law and the doctrine that helps us to interpret it, as well as other laws pertaining to this matter.

i.--Classification of goods
 
The civil legal system defines the concept of "goods" as anything that may constitute wealth and fortune and classifies them according to their physical characteristics. Article 252 of the Civil Code, 31 LPRA sec. 1021. In this regard, a distinction is made, for example, between: personal and real property, fungible and nonfungible goods, and tangible and intangible goods. 31 LPRA secs. 1027, 1029, 1066. In the same way, the Code classifies goods according to the persons to whom they belong. In that sense, our jurisdiction adopted a tripartite standard according to which the goods may be common, public or private. San Geronimo Caribbean Project v. Commonwealth I, 174 DPR 518, 557 (2008); Article 253 of the Civil Code of Puerto Rico, 31 LPRA sec. 1022.[12] According to Vázquez Bote, this classification involves a criterion which is based on the attachment to the subject. E Vazquez Bote, Derecho privado puertorriqueno, Orford, Ed. Equity, 1991, T. VII, p. 30.
Common goods are described in article 254 of the Civil Code as those which do not belong to anyone in particular and which everyone can use freely according to the nature of the goods, for example: air, rainwater, the sea and its shores. 31 LPRA sec. 1023. On the other hand, there are goods of a private nature, as well as the heritage of the State, those which belong to people individually or collectively.Article 257 of the Civil Code, 31 LPRA sec. 1026. Because of this distinction, goods are classified as belonging to individuals or to public bodies, and at the same time, the latter can be public property (public domain) or private property (heritage). Vazquez, op. cit., p. 29. See also, Commonwealth v. Superior Court, 97 DPR 644, 669 (1969).
Arts. 255 and 256 of the Civil Code, 31 LPRA secs. 1024 and 1025, are the ones that list goods in the public domain. This list is complemented by the provisions of Art. 274 of the same body of law, which we will also have to examine later. 31 LPRA sec. 1082. For the moment, it is important to mention that contrary to what happens with particular goods, - which are governed by the ordinary rules of private civil law and which are subject to the regular system of property[13]- those of the public domain exist under a different aegis since they are unattachable, imprescriptible and inalienable. Figueroa v.Municipality of San Juan, 98 DPR 534, 562-563 (1970). See also: J.L. Lacruz Berdejo, Elementos de derecho civil, 3rd ed. rev., Ed. Dykinson, 2005, T. I, Vol. III, p. 39.  Vazquez, op. cit., p. 29. These goods are outside of commerce because by provision of law they can neither be disposed of nor privately owned. San Geronimo Caribbean Project v. Commonwealth I, supra, pp. 558, 561. That different legal treatment is due to the characteristics and functions that such property has fulfilled in societies since long ago. J.V. González García et al., Derechos de los bienes públicos, Ed. Tirant lo Blanch, 2005, p. 12.
Thus, to ponder if in Puerto Rico residential streets can be goods susceptible to private appropriation, we must discuss the legal treatment of goods in the public domain. This, because as we will see later on, the Civil Code refers to the terms·streets·and·local·roads·in articles that define and list this type of goods. It is our task, then, to assess whether, even before this general classification, it is possible that in our legal system residential streets within the private mode may arise into legal existence . Let us examine the Civil Code articles that present the first legal statement with reference to things that can be recognized as of the public domain. See P. Escribano Collado, Las vías urbanas: concepto y régimen de uso, Ed. Montecorvo, 1973, p. 102.
ii.                  Goods of the public domain
There are certain goods that the public authorities exclude from legal commerce because they are essential for the development of society. Gonzalez Garcia et al., op. cit., p. 72.Consistent with this, Art. 255, of our Civil Code,·supra, which comes from Art. 339(1) of the Spanish Civil Code,[14]·indicates that "there are goods in the public domain, intended for public use, such as roads, canals, rivers, streams and others that are similar". (Our emphasis.) 31 LPRA sec. 1024. For its part, our Art. 256·above, whose counterpart is also Art. 344 of the Spanish Civil Code,[15]notes that
there are goods for public use in Puerto Rico and in its villages, state and local roads, plazas, streets, fountains and public waters, walks and public works of general service, paid for by the people themselves or with funds from the Treasury of Puerto Rico.
 
All other goods that the Commonwealth of Puerto Rico or the municipalities possess, are hereditary and are governed by the provisions of this article. (Our emphasis.) 31 LPRA sec. 1025.
 
The Spanish precepts that precede these Arts. 255 and 256 distinguish between goods that are in the public domain of the Spanish nation from those that belong to local and provincial corporations.[16]· However, it is important to keep in mind that the fact that the Puerto Rican code has retained these two precepts does not imply that there are two different categories of public property in our jurisdiction. Professor Michel Godreau explains it in the following manner:
Article 255 of the Civil Code of Puerto Rico states that goods destined for public use are in the public domain, and article 256 exemplifies this type of good to count within that general category the State and neighborhood roads, plazas, streets, walks and public works of general service, "paid for by the people themselves or with funds from the Treasury of Puerto Rico".
 
It would appear that article 256 creates an additional category to be considered property for public use, providing a list consisting entirely of assets built or created with public funds, unlike those listed in the previous article 255, which includes natural things. This differentiation is not justified and in fact does not have any consequences in terms of the restrictions on the alienability and transferability to private individuals. Both those included under Article 255 and those listed under Article 256 are goods of the public domain, i.e., not assets. There is no difference between goods of the public domain and goods for public use. The same restrictions apply both to the one and the other and all have the same characteristics of inalienability and imprescriptibility. M. Godreau and J. A. Giusti, Las Concesiones de la Corona y Propiedad de Tierra en Puerto Rico, Siglos XVI-XX: un estudio juridico, 62 Rev. Jur. U.P.R. 351, 562 (1993).
 
This list of goods of the public domain that the Code establishes is illustrative. [17]·Therefore, there are other goods that can be considered as public property even if they are not specifically listed in the Code. This is the case with article 274, supra, which provides as follows:
Among the things that are not susceptible of appropriation are those that cannot be private property by reason of their purpose, such as things held in common or those whose use and enjoyment belongs to all people.
 
There are other things, on the other hand, that although by their nature are capable of becoming private property, lose this quality as a consequence of being used for public purposes incompatible with private property, even though they can recover their original condition as soon the public use to which they have been dedicated ceases; examples of such goods are the lands of highways, streets and public squares. 31 LPRA sec. 1082.
 
Note that this provision is not about goods that qualify as public property from their origin, but that such status remains subject to the use to which they were eventually destined. That is to say, Art. 274, supra, does not create a category of public domain property by way of example as do Arts. 255 and 256, supra, but refers to certain lands that could be consigned to public use if a public property were built on them, as for example, a public street. If this occurs, these lands would be excluded from regulation as private property by reason of the public good to which they would be dedicated. See, e.g.: Figueroa v. Municipality of San Juan, supra; Balzac v. Registrar, supra. About this Article, Velez Torres explains that it is equivalent to the Anglo-Saxon standard which establishes that goods susceptible of individual appropriation lose that characteristic through 'incompatibility of use'. J.R. Velez Torres, Curso de Derecho Civil, Madrid, Ed. Offigraf, 2005, T.II, 2005, pg. 41.
So, according to what we have discussed so far, the following are public property: lands converted to public use, the lands in public use referred to in article 256, supra, and land that has been allocated for the purpose of public use. It should be noted that in any case, what defines these goods is the public use to which they are consigned.
Velez Torres explains to us that it is not necessary for public domain goods to be owned by the State or its dependencies. Velez Torres,·op. cit., pp. 40-41. In that sense, what characterizes these goods is not ownership or belonging per se. Similarly, the fact that a good is of the public domain also depends on its geological or physical nature.  San Geronimo Caribbean Project v. Commonwealth I, supra, pp. 565-566, quoting Godreau and Giusti, supra, p. 563. In both cases, what characterizes these goods is the destination of the good, its conversion to general public use.[18]·Id. Therefore, a good affected or intended for a for a public purpose or end will acquire the legal classification of public property. San Geronimo Caribbean Project v. Commonwealth I, supra, p. 564. This, regardless of to whom it belongs and its nature. See also, Figueroa v. Municipality, supra. As we have pointed out in San Geronimo Caribbean Project v. Commonwealth I:
[...] demanial classification can respond exclusively to the very nature of the thing, without requiring any further of the sovereign act, as it would be the case of rivers and streams, because their involvement is defined broadly in the law with regard to certain physical or natural circumstances. 31 LPRA sec. 1024. In other cases, conversion responds to the singular Act of the sovereign to build or establish a building for public use, as for example, the State Highways or municipal cemeteries. San Geronimo Caribbean Project v. Commonwealth I, supra, p. 565.
In that same case, we discuss the ways by which a good can be converted to public use. We indicate that this may be deduced from a statement by the legislator, as would be the Civil Code or the Law Of Ports. Id. Thus, it can also happen through administrative acts [19] executed by the State under the authorization of some law (as for example, the construction of a square or a cemetery). Id. So we could say that once the legislator identifies a social need, he sets objectives which constitute the reason for submitting to encumbrance a certain category of goods. Gonzalez Garcia et al., op. cit., p. 72. Let us elaborate a little about this particular issue.
According to the doctrine, encumbrance by legislative act is the only process that places into the public domain whole categories of goods such as those described in section 339.1 of the Spanish Civil Code, analogous to article 255 our Civil Code. Gonzalez Garcia and others, op. cit., p. 89. The author Isabel Miralles Gonzalez explains this type of encumbrance in the following way:
The consideration of public domain of a good begins with a legal declaration. The public destination of those goods is made for all those that participate in the same denomination, call it nature [20] or not, i.e., for all those goods recognizable by their intrinsic characteristics, which is the reason why they do not require a specific act of encumbrance. It is enough for the law [...] to declare the nature of public property to be a particular type, so that all those that partake of this nature come to integrate into said domain. (Our Emphasis and Scholia).
 
I. Miralles Gonzalez, Dominio público y propiedad privada en la nueva ley de costas, Barcelona, Ed. Civitas S.A., 1992, p. 69.
 
In Puerto Rico, article 256 of the Civil Code is the precept that defines the encumbered character of the streets. Our legal system does not have a special law that specifically regulates this type of goods.[21]·Otherwise, the Civil Code would apply supplementary advice in terms of the matter that concerns us today. Cf. Art. 12 of the Civil Code of Puerto Rico, 31 LPRA sec. 12. See also San Geronimo v. Commonwealth I, supra; Cordova & Simonpietri v. Crown American, 112 DPR 797 (1982). Therefore let us look at the controversy that is framed for us in the interpretation that the legal system and doctrine have given to this provision of the Civil Code.
iii.                The streets and Art. 256 of the Civil Code
In the past, we have interpreted the referred article in disputes relating to the Control of Access Act, supra. See, e.g., Asoc. Ctrl. Acc. C. Maracaibo v. Cardona, 144 DPR 1 (1997); Caquias v. Asoc. Res. Mansions Rio Piedras, 134 DPR 181 (1993).Specifically, we have clarified whether the access restrictions that allowed such legislation had the effect of turning the public streets into private access roads.
For instance, in·Caquias v. Assoc. Res. Mansions Rio Piedras·, supra, the Municipality of San Juan authorized the closure of some municipal roads giving access to the urbanization, Mansions of Rio Piedras. There we referred to Art. 256 of the Civil Code, supra, and pointed out that in our legal system, the streets are goods for public use. Id., p. 187. On the other hand, in Assoc. Ctrl. Acc. C. Maracaibo v. Cardona, supra, we considered a few constitutional claims related to article VI, sec. 9 of our Constitution, which obliges the State to·use public funds and properties solely for public purposes. We indicate that
in this context streets are goods of the public domain and public use irrespective of the jurisdiction under which they exist, whether it be municipal or State. This public character of the streets is clear from our Civil Code, Arts. 255 and 256 [...]. (Emphasis ours, citations omitted). Asoc. Ctrl. Acc. C. Maracaibo v. Cardona, supra, p. 29.
We see that these cases -contrary to the one which occupies us today- were resolved in the context of developments whose streets were local and financed with public funds. Since long before this, the concept of "access control" was preserving the public nature of the streets.[22]·Caquias v. Asoc. Res. Mansiones Rio Piedras, supra, p. 186. ·However,· please note that the cases we have reviewed previously show that we have always interpreted article 256 of the code as suggesting that the streets mentioned therein are paid for with public funds. Thus also judge Asociado Senor Negron Garcia explained it in his concurrent and dissenting opinion in Asoc. Ctrl. Acc. C. Maracaibo v. Cardona, supra.In the same opinion, he mentioned that article 256 of the Civil Code,·supra, "describes the streets as goods for public use in Puerto Rico and in its cities, paid for by the people themselves or with funds of the Treasury of Puerto Rico",·Asoc. Ctrl. Acc. C. Maracaibo v. Cardona, (Negron Garcia, J., op. Concurrent and dissenting), supra, p. 66. He also added the following:
The Legislative Assembly has the authority to amend the Civil Code and other laws to convert residential streets into goods for private use. It is clear, once they cease being goods for public use, their maintenance cannot be with public, municipal or State funds. It would imply that the transfer of the streets was also transferred the cost of maintenance, including lighting, repairs, and the civil responsibility for these. The effect would be that the streets would become goods limited to the common use of the urbanizations with all the responsibilities, obligations and problems that this entails. (Citations omitted). Asoc. Ctrl. Acc. C. Maracaibo v. Cardona, (Negron Garcia, J., Op. Concurrent and dissenting), supra, p. 66.
 
Let us then pass on to describe how the doctrine has interpreted this Article.
As we have noted, Professor Godreau points out that Art. 256, supra, contains a list
[...] consisting entirely of assets built or created with public funds, unlike those listed in Art. 255, that includes natural things. Godreau and Giusti, supra, p. 562. (Our emphasis.)
 
While the purpose of the author in his commentary is to distinguish between goods that are public by their nature and others which are not, we place emphasis on how he alludes to those goods that are mentioned in article 256, supra, which are those goods built or created with public funds. In that same sense, while interpreting article 344 of the Spanish Civil Code, which is analogous to Our Art. 256, Borrell noted that:
Among the goods for public use by provinces and towns, Article 344 mentions 'provincial and local roads, plazas, streets, fountains and public waters, walkways and public works of general service, paid for by the people themselves or by the provinces' [...]
So farms destined to become offices, hospitals, schools, museums, etc., etc., of the provinces and municipalities, are either the private property in such corporations, or are outside of the civil code, and even the goods of public use that he lists- have to be financed by the people themselves or by provinces because he adds this unreasonable requirement. (Italics in the original, emphasis added). Borrell and Soler, op. cit., pp. 298-299.
Regardless of what he considers an "unreasonable requirement" -a topic that is not under discussion in this case- the author considers that the goods listed in that provision are financed by the public entity. On the other hand, Garrido Fallo tells us that article 344 of the Spanish Civil Code contains language that is essentially identical to that of the Regulation of Goods of Spain of 1986, which established in its article 3.1 that:
[...] the following things are goods for public use: local roads, squares, streets, walks, parks, water fountains and ponds, bridges and other public works of general use whose conservation and policy are within the jurisdiction of the local authority. F. Garrido Falla en M. Albaladejo y otros, Comentarios al Código Civil, Madrid, Ed. Edersa, 1990, T. V, Vol. I, pág. 130.
We mention the commentary of the scholar since in making it, he points out that the phrase "and other public works" continues to be a success of the legislator, because "it clarifies that those paths, roads or parks that are not themselves "public works", are not part of the domain or the estate of local authorities". (Our emphasis.) Id.
Also, the Spanish scholar Escribano Collado, in analyzing the concept of urban public roads as public property reminds us that demanialidad is only possible for "those urban roads that are called public: those that remain under administrative (municipal) ownership have undergone a process of encumbrance to the public use". Escribano Collado, op. op. cit., pp. 155-116. In other words, routes that are under the control of any governmental authority.
After analyzing the legal system and doctrine that precedes, we see while the article 256 of the Civil Code of Puerto Rico, supra, indicates that the streets and the roads are public domain, a logical interpretation of that obligation leads us to conclude that this is mentioned in the context that these are maintained or paid for by the State. As already mentioned, article 256 of the Civil Code, supra, establishes that they are assets for public use "the roads and ... streets ...financed by the people themselves or funds of the Treasury of Puerto Rico". So, we can say that in Puerto Rico all residential streets that participate in this "particular type" established by law are in the public domain and therefore cannot be private assets. Therefore, we resolve that the residential streets that are outside the provisions of Art. 256 shall not be considered as such, subject to the interpretation of this article.  
IV
In summary, currently the legal system has conceived that the residential streets may be privately owned or publicly owned. As is clear from the language of article 256 of the Civil Code, supra, and the doctrine which interprets it, streets that are part of the category of goods in the public domain are those financed and maintained by the people themselves and that they are intended for public use. The current legal framework does not require that all residential routes are acquired by the municipalities with end of dedicating them for public use.[23]·Therefore, streets that are not transferred to a governmental entity shall be outside the regime of Art. 256 of the Civil Code, supra, not by the fact of who legally holds the title, but because they do not belong to the given type of streets that are listed there. Of course, we know that the Legislative Assembly of Puerto Rico has broad authority to determine what constitutes a public purpose. Asoc. Ctrl. Maracaibo v. Cardona, supra, p. 28;  P.I.P. v. C.E.E., 120 DPR 580, 608-609 (1988). Thus we have reiterated that urban activity is subject to the regulations that the State will impose since the right to development is not absolute and can be conditional. See: Arenas Procesada v. Commonwealth, 132 DPR 593 (1993); Vazquez v. A.R.Pe. 128 DPR 513 (1991); The Richards Group v. Planning Board, 108 23 DPR (1978).
Therefore, after reviewing the applicable special legislation and the precepts of our Civil Code along with the legal system and doctrine that inerprets them, we resolve that the existing Puerto Rican legal code provides for the existence of private residential streets, according to principles set out in this opinion.
It will issue a ruling in accordance.
Edgardo Rivera Garcia
Associate Justice
 
 
JUDGEMENT

In San Juan, Puerto Rico, on November 18, 2014.
On the grounds set out in the Opinion that precedes, we answer the certified question in the affirmative. We resolve that the Puerto Rican legal system currently contemplates the existence of private residential streets, according to principles set out in this opinion.
 
So the Court pronounced it and issues it and the Secretariat of the Supreme Court certifies it.  The Associate Justice Mrs. Rodríguez Rodríguez and the Senior Associate Justices Martinez Torrez and Estrella Martinez dissent from the written opinion. The Associate Justice Mrs. Oronoz Rodriguez abstains.
      
 
 
      Aida Ileana Oquendo Graulau
    Secretary of the Supreme Court
 


Case notes
 
[1]·See:·Plaintiffs' complaint for declaratory judgment and permanent injunctive relief and Plaintiffs' amended complaint for declaratory judgment and permanent injunctive relief. Appendix to the allegation of the Municipality of Dorado, pp. 1 and 38.
 
[2]·See also, 2 February 2012 order issued by United States District Court for the District of Puerto Rico, Appendix of the allegation of the Municipality of Dorado, p. 102.  During that process, the lawsuit against the State was dismissed because the implementation of that law and remedy awarded corresponded to the Municipalities.
[3]·See also,·Motion in compliance with order,·Id., p. 119.
 
[4]·Initially, the District Court had certified a question as to whether the Access Control Act allowed urbanizations access control without security guards, and if it did, whether this was constitutional under the Constitution of Puerto Rico. This application for certification was rejected for not complying with the standards of rule 25 of the Regulations of the Supreme Court, 4 LPRA Ap. XXI-B.
[5]·See also Resolution of the Supreme Court of Puerto Rico from 14 November 2013.
 
[6]·Later, the·American Civil Liberties Union·also requested to appear as amicus Curiae. However, we deny their request, since their appearance would be intended to enlighten this Court on issues related to constitutional law, which fell outside the scope of the certified question. See, Resolution of the Supreme Court of Puerto Rico on 16 December 2013.
 
[7]·See Resolution of the Supreme Court of Puerto Rico of 22 November 2013.
[8]·This declares that:
 
The resource of certification will be formalized when the Supreme Court of the United States of America, a Circuit Court of Appeals in United States of America, a District Court in United States of America, the Highest Appellate Court of any of the States and territories of the United States of America or any other appellate court of lower hierarchy have to consider a case in which arises any judicial matter in which questions of Puerto Rican law are involved that can determine the outcome of the same and with respect to which, in the opinion of the requesting court, there are no clear precedents in the jurisprudence of this Court.
 
[9]·For example, in its complaint,·Watchtower argues about the balance that must be maintained between the right to freedom of expression and property rights.
[10]·This opinion is based on provisions of the Building Code of Spain which demanded that the owner of urban land should cede the streets to the City Hall at the established rate.
 
[11]·It is meritorious to clarify that agreements that the Municipality of Dorado has reached with promoters or developers of the BCC· urbanization are not relevant to solving the particular issue that is before us. That is beyond the scope of our judicial function as we are limited to determining whether our legal system allows that class of goods may exist within the private modality.
[12]·Art. 253 of the Civil Code of Puerto Rico, 31 LPRA sec. 1022, establishes that "things or goods are either common or public. Goods are also capable of being either property of corporations or property of individuals".
[13]·In terms of these private goods, the Code states that people can freely dispose of them without more limitations than those imposed by law. Art. 276 of the Civil Code of Puerto Rico, 31 LPRA sec. 1084.
[14]·Art. 339 of the Spanish Civil Code establishes that:
The following goods are public property:
1.    Those intended for public use, such as roads, canals, rivers, streams, ports and bridges built by the State, the riverbanks, inlets and other similar things.
2.    Those that belong to the State, without being in common use, and are intended for any public service or the promotion of national wealth, walls, fortresses and other works for the defense of the territory, and the mines, while their concession has not been granted.
 
As we can see, our Article 255 is similar to the first paragraph of Article 339 Spanish, with the exception that the first does not refer to ports and bridges built by the State and replaces them with the concepts of shores and inlets. In addition, Art. 255, supra, omitted the second part of Art. 339, supra, which provides that there may also be goods of the public domain that belong privately to the State. This, since according to the order established in Puerto Rico since 1902 by the Civil Code, these goods ceased to be considered as of national and public domain, and were recognized as heritage of the State. See, San Geronimo Caribbean Project v. Commonwealth I, 174 DPR 518, 566 (2008).
 
[15]·The Spanish statute indicates that:
 
       There are assets for public use in the provinces and in cities: provincial roads and neighborhood roads, beaches, streets, fountains and public waters, walkways and public works of general service, paid for by the same people or provinces.
 
All other goods that some and the others possess, are heritage goods and will be governed by the provisions of this Code, except as provided in special laws.
 
[16]·See: Gonzalez Garcia and others, op. cit., p. 931; Lacruz Berdejo, op. cit., pp. 33-34; Gil de la Cuesta, op. cit., pp. 61-62;  L Díez-Picazo y Ponce de León, Sistema de Derecho Civil, 6th ed., Madrid, Ed.Tecnos, 1997, V.1, p. 393; J.M. Manresa and Navarro, Spanish Civil Code, Madrid, Ed. Reus S.A., T.3, 1976, pp. 93, 99, 101; A.M. Borell and Soler, Derecho Civil Espanol, Barcelona, Ed. Bosh, T.1., 1955, pp. 293, 298.
[17]·See: J. Lacruz Berdejo et al., Elementos de Derecho Civil, 3rd ed., Madrid, Ed. Dykinson, 2005, Vol. 3, p. 34; Albaladejo et al., Comentarios al Código Civil, Madrid, Ed. Edersa, Madrid, 1990, T.1, Vol.1, p. 90;  A.M. Borrell and Soler, Derecho Civil Español, Barcelona, Ed. Bosh, 1955, T. I, p. 293; (I). I. Gil de la Cuesta, Barcelona, Ed. Bosh, T.3, 2000, op. cit. p. 62.
[18]·This, independently of the material activity and contingency of the construction of the thing. See, Díez-Picazo, op. cit., p. 393. See also: M. Manresa and Navarro, op. cit., pp. 93, 96-97; Velez Torres, op. cit., pp. 40-41.
[19] The Spanish doctrine distinguishes between "express administrative involvement" and "implied administrative involvement". Gonzalez Garcia et al., op. cit., pp. 90-91. In that sense, it envisages that there is involvement implied in cases such as the adoption of urban plans. Id., p. 982. See in addition, Lacruz Berdejo, op. cit., p. 37.
[20]·This says to analyze the text of the second subparagraph of Art. 122 of the preliminary draft of the Spanish Constitution, which reads as follows: "in any case these are goods of the public domain by their nature: the maritime-terrestrial zone, the beaches, the territorial sea, the continental shelf and their natural resources".  According to the author, the phrase "by their nature", was removed. See, I. Miralles Gonzalez, Dominio público y propiedad privada en la nueva ley de costas, Barcelona, Ed. Civitas S.A., 1992, pp. 28-30.
 
[21]·The analyst Garrido Falla, in his discussion of the list contained in Art. 344 of the Spanish Civil Code, analogous to the Art. 256 our Civil Code, states that:
 
If we limit ourselves to reading Article 344 of the Civil Code, the streets seem to be assets for public use, by their very nature; but then we would have to arrive at the same conclusion in relation to the roads. And yet we have to admit that there are private roads (and highways): those that run·through privately-owned land along their entire route. "Private road" signs that we often encounter in our travels do not, of course, violate the law.
 
Now, are there any private streets? Conventionally, we could define the street as a road allowing access to different areas and buildings of a city. If we accept this meaning, it is obvious that the street should be for public use (and therefore in the public domain...). (Italics in the original, citations omitted). Albaladejo et al., op. cit., p.131.
 
After expressing this, it alludes to the urbanistic legislation of that jurisdiction and concludes the following:
 
The conclusion that emerges from the precepts under examination seems to be that, although the work is funded by private developers, the street once built has to be ceded to the City Council, and at that point enters into its (public) heritage. What happens is that the acceptance of works by the City Council is... not always realized. […] If there has not been, then, acceptance of works by the City Council, we are here in the presence of the controversial 'private streets'. (Our emphasis.) Id., p. 132.
 
     As we see, the scholar turns to the statements of the legislator about urban regulation to complete his analysis. And it must be this way, since it is clear that the legal regime of most of the goods that are noted in the Civil Code does not derive from the "terse legal precept cited, but from specific legislations".  Albaladejo et al., op. cit., p. 90. This, since no matter how well the doctrine works, the regulation of every parcel of the public domain won't be the fruit only of the general law governing the category of goods, but also it will happen as the result of a network of pieces. Gonzalez Garcia et al., op. cit., pp. 74-75. Thus, each good listed as being in the public domain should contain its own legal characteristics and regimes. Id., p. 926.
[22]·In light of this, we reiterate that the Access Control Act did not have the effect of privatizing those public streets since that does not arise from that legislation. Note that the Access Control Act permitted municipalities to grant permits for control of the traffic of motor vehicles and of the public use of public roads. 23 LPRA sec. 64. Therefore, there is no controversy regarding whether public streets paid for by the State are in the public domain and that the law on Access Control did not alter nor does it now alter this legal situation.
[23]·See, for example, the regulations adopted under Puerto Rico Permit Process Reform Act, law No. 161 - 2009.
 

 

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