Intervening in someone else’s permit: seven factors, substitution of parties and the agencies’ thirty days

These are Sections 2.1.9.9, 2.1.9.10 and 2.1.9.11 of Chapter 2.1 of Joint Regulation No. 9473. All three govern what happens around a permit application once filed: who else may enter the process, what occurs when a party dies or assigns their interest, and how long agencies and municipalities have to issue the recommendations requested of them.

An intervention request may be filed by any person interested in being part of the evaluation process of final determinations, permits, and of any adjudicative procedure required under Law 161-2009. Substitution of parties may be requested by any party in a procedure before the JP, OGPe or an autonomous municipality with hierarchy I to III. Recommendations are requested from the municipalities, the JP and the Concerned Governmental Entities, where deemed necessary, as part of the evaluation process.

• Filing a duly grounded intervention request to be allowed to intervene or take part in the procedure.Verified against the official source
• That the agency evaluate the request at discretion considering Law 38-2017, known as the Uniform Administrative Procedure Act, and the factors the section lists.Verified against the official source
• That the intervention criteria be applied liberally, with additional evidence possibly required to issue the determination.Verified against the official source
• That every intervention denial be notified in writing to all parties already recognized by a grounded resolution with findings of fact and conclusions of law, warning of the right to reconsideration, administrative review or judicial review before the Court of Appeals, with the available terms.Verified against the official source
• Stating in every substitution request the grounds justifying it, and notifying it to the other recognized parties in the procedure, if any, so stating in the writing.Verified against the official source
• That substitution requests be evaluated and adjudicated within no more than three (3) business days.Verified against the official source
• That the municipalities, the JP and the Concerned Governmental Entities send their recommendations within thirty (30) days from the date of notification of the recommendation request.Verified against the official source
• That OGPe’s Assistant Secretary, together with the Concerned Governmental Entity’s Permit Officer, issue the recommendation within no more than fifteen (15) additional days on the basis of all the information in the record, where the entity did not issue it in time.Verified against the official source

• Duly grounded intervention request.
• Additional evidence the agency requires to adjudicate the intervention request.
• Substitution request writing with the grounds justifying it and a record of its notification to the other recognized parties.
• Grounded resolution with findings of fact and conclusions of law, where intervention is denied.

1. 1

   Step 1: Who may request to intervene

   Any person interested in being part of the evaluation process of final determinations, permits, and of any adjudicative procedure required under Law 161-2009, may file a duly grounded intervention request to be allowed to intervene or take part in that procedure. One need not be an adjoining owner or an original party: one must have an interest and ground it.

2. 2

   Step 2: The seven factors weighed

   The request is granted or denied at discretion, considering: that no other legal means exist for the petitioner to adequately protect their interest; that the petitioner’s interest is already adequately represented by the parties in the procedure; that the participation may reasonably help prepare a more complete record; that the participation may excessively extend or delay the procedure; that the petitioner represents or speaks for other community groups or entities; that they may contribute information, expertise, specialized knowledge or technical advice not otherwise available; and that their interest may be adversely affected by the adjudicative procedure.

3. 3

   Step 3: The instruction to apply them liberally

   The Regulation itself closes the list saying the preceding criteria shall be applied liberally, and that additional evidence may be required to issue the corresponding determination on the intervention request. It is an instruction of direction: in doubt, the section pushes toward letting people in.

4. 4

   Step 4: If denied, it must be explained

   Every denial of an intervention request is notified in writing to all parties already recognized, per Rule 2.1.7, by a grounded resolution with findings of fact and conclusions of law, warning the petitioner of the right to seek reconsideration, administrative review or judicial review before the Court of Appeals, indicating the available terms. A denial without grounds or without warning of the terms does not meet the section.

5. 5

   Step 5: Substituting a party

   Any party in a procedure before the JP, OGPe or an autonomous municipality with hierarchy I to III may be substituted. The request states the grounds justifying it and must be notified to the other recognized parties, so stating in the writing. Grounds for substituting a party include, among others: death, incapacity, assignment of interest and acquisition of a right by another party. The list stays open: the Regulation says "among others".

6. 6

   Step 6: An official leaving office forces no substitution

   There is a useful rule for public projects: in applications filed by state, municipal or federal public officials in their official capacity, the State is considered the proponent party, so their leaving office requires no substitution. And substitution requests are evaluated and adjudicated within no more than three business days.

7. 7

   Step 7: The agencies’ thirty days

   Recommendations are requested from the municipalities, the JP and the Concerned Governmental Entities, where deemed necessary, as part of the evaluation process. They must send them within thirty days from the date of notification of the recommendation request, and failing to issue them within that term it is understood they have no recommendations and the process continues. Silence, here, does not stop the file.

8. 8

   Step 8: When OGPe must issue it for them

   Where OGPe does not issue the recommendation in the first instance, it sets the term for the Concerned Governmental Entities to issue theirs, which shall not exceed thirty days. Failing that, OGPe’s Assistant Secretary together with the Concerned Governmental Entity’s Permit Officer must issue the recommendation within no more than fifteen additional days, on the basis of all the information in the record. And there is a hard consequence for the agency that slept: once the Assistant Secretary issues that recommendation, the Concerned Governmental Entities may not challenge it as a result of not having issued their own within the term established.

9. 9

   Step 9: The specially protected rustic soil exception

   That substitution mechanism has a limit. For all land classified as Specially Protected Rustic Soil and for the special flood-risk areas designated by FEMA, where circumstances put the population’s health and safety at risk or adversely impact the environment’s integrity and natural resources, in matters of system capacity in rustic soils requiring the maximum possible degree of interdisciplinary evaluation and recognizing the precautionary principle aimed at avoiding serious or irreversible harm, OGPe’s Assistant Secretary may not issue the recommendation and must take every necessary measure to guarantee the expression and appearance of the JP and the Concerned Governmental Entities.

The intervention request is filed before the JP, OGPe, the Adjudicative Board or the autonomous municipality with hierarchy I to III handling the procedure, which grants or denies it. The substitution request is filed before that same forum and notified to the other recognized parties. Recommendations are requested by the evaluating agency from the municipalities, the JP and the Concerned Governmental Entities.

• Believing only adjoining owners may take part, when any interested person may file an intervention request.
• Filing the intervention request without grounding it, when the Regulation requires it duly grounded.
• Not aiming the writing at the factors the section lists, such as the interest that may be adversely affected or the expertise one can contribute.
• Accepting an intervention denial that does not come by grounded resolution with findings of fact and conclusions of law.
• Letting pass the reconsideration, administrative review or judicial review terms the denial itself must warn of.
• Requesting a substitution of party without stating the grounds justifying it.
• Not notifying the substitution request to the other recognized parties nor so stating in the writing.
• Filing a substitution because a public official left office, when in their official capacity the proponent party is the State.
• Assuming the file halts if an agency does not send its recommendation, when after thirty days it is understood to have none.
• Counting on later challenging the recommendation the Assistant Secretary issued after failing to issue one’s own in time.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• OGPe Single Business Portal

  ogpe

  www.permisos.pr.gov

• Planning Board

  jp

  jp.pr.gov