Reviewing a permit: twenty days and forty-eight hours

It is Chapter 11.1 of Joint Regulation No. 9473: the procedure for asking OGPe’s Administrative Review Division to look again at a final determination, under Ley 161-2009. There are three modes: the ordinary administrative review, the expedited review of a cure requirement — where you are required to correct something and believe it is unwarranted — and the expedited review of case elevation, where a municipality does not send the file up to the central agency that retained the power to decide.

It may be filed by a party adversely affected by an action or final determination of OGPe, the Adjudicative Board, autonomous municipalities with hierarchy I to III or an Authorised Professional. You need not be the permit applicant: being an adversely affected party is enough. The expedited review of a cure requirement is filed by whoever is adversely affected by a cure required by OGPe or an autonomous municipality. The expedited review of case elevation is filed by the proponent.

• Filing the appeal within the jurisdictional term of twenty (20) days from the date the notice of the final determination was filed in the record.Verified against the official source
• Filing it electronically through the Unified Information System (SUI) mechanism before the Administrative Review Division.Verified against the official source
• Attaching evidence of payment of the stamp or corresponding fees: without it the filing is not deemed made for any legal purpose.Verified against the official source
• Attaching a copy of the resolution to be reviewed and the notice of the resolution of the action or final determination.Verified against the official source
• Notifying a copy of the application to the other parties and intervenors within forty-eight (48) hours of filing: it is a jurisdictional requirement.Verified against the official source

• A filing with the petitioner’s name, case number, postal address, e-mail address and the determination being challenged.
• A reference to the decision under review, a brief statement of the pertinent facts, a discussion of the errors alleged, and the prayer for relief.
• A list of the parties to the case with their e-mail or postal addresses.
• Evidence of payment of the stamp or corresponding fees.
• A copy of the resolution to be reviewed and of its notice.
• Certified-mail return receipts, uploaded to the system within five (5) days of receipt; or a certification of notice given by regular mail, e-mail or in person, uploaded within five (5) days.

1. 1

   Step 1: The twenty days, and when they start

   A party adversely affected by an action or final determination of OGPe, the Adjudicative Board, autonomous municipalities with hierarchy I to III or an Authorised Professional may file an application for administrative review with the Administrative Review Division within the jurisdictional term of twenty days counted from the date a copy of the notice of the action or final determination was filed in the record. That starting point decides cases: if the filing-in-record date differs from the date that notice was deposited in the mail, the term is calculated from the mailing date. And "jurisdictional" means what it sounds like: once the term passes there is nothing to be done, not even for good cause.

2. 2

   Step 2: Filing through SUI, with the fee and the resolution

   The appeal is filed electronically through the mechanism provided by the Unified Information System. OGPe sets the filing fees under Article 2.9 of Ley 161-2009. And here is a trap: the review filing shall not be deemed made for any legal purpose if it is not accompanied by evidence of payment of the stamp or corresponding fees and by a copy of the resolution to be reviewed together with the notice of that resolution. Filing without those attachments, with the clock running, is the same as not having filed.

3. 3

   Step 3: The forty-eight hours that are also jurisdictional

   The SUI itself simultaneously notifies OGPe, the Adjudicative Board, the autonomous municipality or the Authorised Professional, as applicable. But that is not enough. In addition, the appealing party shall notify a copy of the administrative review application by post, e-mail or in person to the other parties and to intervenors within forty-eight hours of filing. The regulation says it plainly: timely notice under this article is a jurisdictional requirement and compliance must be certified and evidenced in due time before the Division. If you notified by certified mail, you upload copies of the return receipts within five days of receiving them. If you notified by regular mail, e-mail or in person, you certify having done so and upload that certification to the record within five days.

4. 4

   Step 4: The agency sends the file up in ten days

   Once the review is filed, OGPe, the Authorised Professional, the Adjudicative Board or the autonomous municipality sends the Administrative Review Division a certified copy of the case file within the ten natural days following the filing of the application. If the file is digital, the requirement is met by sending it electronically with a certification from the Clerk’s Division. And the regulation leaves open an uncomfortable but real possibility: the parties may be summoned to reconstruct the file.

5. 5

   Step 5: Fifteen days to accept, or rejected outright

   This is the filter. Once the application is filed, the Administrative Judge or the Alternate Administrative Judge has fifteen days to accept it or reject it outright. And silence does not work in your favour: if a resolution decides not to accept the review, or if no action is taken within the fifteen days following filing, it shall be deemed rejected outright. The term to appeal or seek judicial review shall begin to run again from notice of the denial or from the expiry of those fifteen days, whichever occurs first. That is: if you get no answer in fifteen days, do not wait; your clock to the Court of Appeals has already started.

6. 6

   Step 6: Ninety days to decide, and what happens if they overrun

   If accepted, the Division shall dispose of accepted applications within a period of ninety natural days from filing. In exceptional cases that term may be extended by thirty additional days counted from the expiry date. And the consequence of overrunning is written down: if the Division does not adjudicate the application within the term provided, that forum shall lose jurisdiction over it and the thirty-day term to go to the Court of Appeals by judicial review shall begin to run. It pays to note the filing date on a calendar and count.

7. 7

   Step 7: The three criteria assessed

   When it is decided to take up an administrative review, it is assessed against three criteria, and it pays to write the appeal aiming at one of them. First: the discovery of pertinent and essential new evidence relating to the case, whose admission would make a determination contrary to the one taken more likely, and which despite reasonable diligence could not have been discovered before the determination. Second: the commission of a substantive or procedural error making the decision contrary to law. Third: the need to correct the decision so that the public interest is better protected.

8. 8

   Step 8: Briefs, hearings and postponements

   Within five natural days of the appeal being notified to the parties, any of them may file a brief in support or opposition, in digital format through the portal; anyone without internet access may go to OGPe to file it. All briefs are notified to the other parties on the same day they are filed, that notice is certified and evidence presented: failure to notify means the brief is not taken into account. The Division may decide at any time without waiting for positions for or against. If there is a hearing, it is notified in writing no less than fifteen days in advance, save for justified cause stated in the notice, and the notice must contain seven things: date, time, place, nature and purpose; which aspects of the decision will be reviewed or whether the whole case will be heard; the warning that parties may appear assisted by lawyers but are not obliged to; the requirement that whoever appears for a corporation evidence their representative capacity — and that a citizen may not represent another unless authorised to practise law in Puerto Rico; the citation of the provision authorising the hearing; the warning of measures if a party fails to appear; and the warning that the hearing may not be postponed save on an application under the regulation. To postpone, it must be requested in writing no less than five calendar days in advance, certifying notice to the other parties, offering three workable dates and paying the fees. And if you receive no answer to a duly filed postponement request, it is deemed denied: the proceeding goes ahead on the scheduled date.

9. 9

   Step 9: Withdrawing or sending the case back to the agency

   The appealing party may at any time request withdrawal of the appeal filed. Also, by common agreement of the parties, it may be requested at any time that the case be sent back to OGPe or the municipality to review it in whole or in part and proceed; once that request is filed, the Administrative Judge returns the case to the forum below without delay. And the agency below may itself ask for the return if it considers that the new evidence raised makes the case significantly different from the one it assessed: in that event the Division gives the appealing party three days to state its position and has two days to decide the return request.

10. 10

    Step 10: The Court of Appeals: thirty natural days

    Resolutions of the Administrative Review Division shall be considered final determinations of OGPe. Any party adversely affected by a final determination shall have a jurisdictional term of thirty natural days to file an appeal with the Court of Appeals, and the regulation repeats that this term is jurisdictional. If the Court so requests, OGPe shall send up the file or a certified copy within the time that forum allows. It is worth recalling what the chapter’s first rule says: filing the administrative review is not a jurisdictional prerequisite to going to the Court of Appeals, but filing it in time stays the terms for going there.

11. 11

    Step 11: The expedited review of a cure requirement: five days

    Where OGPe or an autonomous municipality requires you to cure something and you believe it is unwarranted, there is a fast lane. The party adversely affected by a cure requirement may file an Expedited Administrative Review Application within the jurisdictional term of five natural days, counted from notice of the cure requirement. It is filed through SUI with evidence of payment; the filing carries the name, case number, addresses, the date of the cure requirement, a reference to the requirement under review, a brief statement of the facts and a discussion of why it is said to be unwarranted. It is notified by e-mail to all parties on the same day it is filed. The Division decides within the jurisdictional term of fifteen natural days. And there is an important limit: the resolution on an expedited review of a cure requirement may only be reviewed together with the final determination OGPe or the municipality eventually issues on the project.

12. 12

    Step 12: The expedited review when the municipality does not send the case up

    Article 6.015 of Ley 107-2020, the Municipal Code, gives the autonomous municipality with hierarchy I to III ten days to send the administrative file up to the central Government agency that retained the power to decide the application. Once those ten days pass without it doing so, the proponent may file an Expedited Administrative Review Application on case elevation. It is filed through SUI with evidence of payment; the filing carries the name, case number, addresses, type of application and the date the case was filed with the municipality; it is notified by e-mail to all parties the same day. The municipality may state its position on jurisdiction within five working days. The Division decides the case within the twenty natural days following the filing. And as with the cure-requirement review, that resolution may only be reviewed together with the final determination OGPe eventually issues.

Before OGPe’s Administrative Review Division, electronically through the Unified Information System (SUI) mechanism. Anyone without internet access or unable to use the online filing system may go to OGPe to file the corresponding brief; the regulation expressly contemplates this for briefs.

• Counting the twenty days from when you received the letter rather than from the filing in the record or the mailing.
• Filing without evidence of fee payment or without a copy of the resolution and its notice.
• Believing SUI’s automatic notice is enough and not notifying the other parties within forty-eight hours.
• Not uploading the return receipts or the certification of notice within five days.
• Waiting for an answer beyond fifteen days: silence equals outright rejection.
• Letting the thirty natural days to the Court of Appeals pass, believing the term can be extended.
• Assuming an unanswered hearing-postponement request was granted.
• Treating a cure requirement under the twenty-day term when it is five natural days.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov