Location consultation: which projects need one and what is filed

It is Rule 2.2.3 of Joint Regulation No. 9473, on the adjudicative processes considered by OGPe, the Planning Board and Autonomous Municipalities with Hierarchy I to III. OGPe or the municipality with that hierarchy consider location consultations, public improvement consultations and construction consultations, use and construction variances, and lotifications. The Planning Board considers the Master Plan and public land transactions. This guide covers the location consultation: who needs one, who may bring it, what is filed, how it is evaluated, how it is amended and when there is a public hearing. The extension of validity and the reopening of an approved consultation are in the same rule’s final sections and have their own guide on this site.

Every consultation, its amendments, extensions and reopenings may be brought by the owner, option holder or lessee of the property, by themselves or through an authorised representative, in private projects, and by the Agency Head or their authorised representative in a public project. Every filing or document must be presented in the SUI by the person expressly authorised to do so: failing that it is treated as not filed and does not form part of the record. Revocation of a consultation may be brought by the Adjudicative Board on its own initiative or at the request of a person with legitimate interest.

• Filing the consultation in the SUI using the corresponding forms or the official mechanisms available: the documents’ filing date is, for all legal purposes, the date of filing in the SUI.Verified against the official source
• Including reliable evidence that the proponent is owner, option holder or lessee duly authorised by the owner; where there is more than one owner, evidence that all authorise the proposed action, unless all delegate in one person by sworn declaration or other legal document.Verified against the official source
• Where the consultation seeks a variance from a regulatory requirement or a use variance, filing a variance application on the corresponding form stating the grounds or reasons supporting it.Verified against the official source
• Submitting evidence of having filed the corresponding environmental process before OGPe, or a copy of the environmental document prepared for the project.Verified against the official source
• Paying the filing fees corresponding to the type of project or application. Government bodies pay twenty-five per cent for location or public improvement consultations, and one hundred per cent if the consultation is for a private interest.Verified against the official source
• In public improvements on publicly owned land, submitting evidence that the proponent holds title to the plot or is expressly authorised to develop it; on private land, evidence that it notified the plot’s title holder.Verified against the official source

• A Memorial Explicativo duly signed in original discussing the project’s nature, the context in which it is proposed, the applicable regulatory provisions, public policy, the applicable land-use or ordination plans, the plot’s susceptibility to flooding or landslides, existing, proposed or programmed infrastructure, and the benefit the community will derive if the project is approved.
• Evidence of title: Deed of Acquisition, Purchase Option Contract or Registry Certification identifying the land’s owner. In inheritances, a Declaration of Heirs.
• In commercial projects: the project’s category, the types of uses, the net sales area for each use, the physical characteristics, the number of structures, the aisle areas, the warehouse areas and the total gross construction area, stating whether it is proposed to use the aisles as sales areas.
• In public improvements: the originating agency’s certification evidencing that, to comply with Act No. 416-2004, it filed the corresponding environmental document before OGPe or obtained a determination of environmental compliance by categorical exclusion.
• Where the Adjudicative Board deems it necessary, additional or clarifying information, which may include broader technical studies such as Hydrological and Hydraulic Studies, Noise Level Studies and Traffic Analyses.

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   Step 1: The seven situations that require a consultation

   A location consultation is required for: proposed land uses not ministerially permitted by the applicable regulation in calificadas areas; projects proposing a density or intensity greater than the district allows and not complying with the district’s permitted use; proposed land uses of regional, subregional and supraregional character; proposed uses that by their nature or intensity require a special or particular location to address special situations, such as industrial projects like earth-crust material processing, transfer stations or final solid-waste disposal; every public improvement, excluding public land transactions and except those declared exempt by Planning Board resolution or included in Rule 2.2.8; projects with greater density or intensity or requiring a particular design where no specific district has the necessary parameters; and projects proposing a structure that does not meet the construction-parameter requirements and which, because of the solar’s condition, the special location or the particular use, faces a practical difficulty and merits special consideration, provided no harm is created to neighbouring properties.

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   Step 2: Who decides what

   OGPe or the Autonomous Municipalities with Hierarchy I to III consider location consultations, public improvement consultations and construction consultations; use and construction variances; and lotifications under Volume V, Chapter 5.1. The Planning Board considers the Master Plan and public land transactions. Each of those matters has its own guide on this site.

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   Step 3: The criteria you will be evaluated against

   The determination rests on the evaluation of the factors the interested party presents and demonstrates, among others: that the project conforms with the Puerto Rico Land Use Plan or the applicable Territorial Ordination Plan; that the infrastructure needed to serve the project and mitigate its direct and indirect effects exists or can be provided; the viability, acceptability and convenience of the proposed use; that the plot’s cabida exceeds the maximum permitted for a direct change of calificación; and how the needs of the community where the project lies are met and how it responds to the public interest. The burden of demonstrating them falls on the proponent, not the agency.

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   Step 4: Who may file it and where

   Every consultation, its amendments, extensions and reopenings may be brought by the owner, option holder or lessee of the property, by themselves or through an authorised representative, in private projects; and by the Agency Head or their authorised representative in a public project. Every related filing or document must be presented in the SUI by the person expressly authorised to do so: failing that it is treated as not filed and does not form part of the record. And the documents’ filing date is, for all legal purposes, the date of filing in the SUI.

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   Step 5: The Memorial Explicativo is the central document

   A Memorial Explicativo duly signed in original must be submitted discussing the proposed project’s nature, the context in which it is proposed, the applicable regulatory provisions, public policy, the applicable land-use or ordination plans, the plot’s susceptibility to flooding or landslides, existing, proposed or programmed infrastructure, and every other aspect deemed necessary. It must also discuss the benefit the community will derive if the project is approved, and any variance or exception sought must be justified in light of the applicable regulatory provisions. In commercial projects it must state whether it is proposed to use the aisles as sales areas. Every document filed forms part of the record and is not returned, though a copy may be obtained for legitimate purposes on payment of the corresponding fees.

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   Step 6: The commercial categories by square feet

   Every location consultation for a commercial project includes the project’s category by net sales and warehouse area. Comunal: those between thirty-five thousand and ninety-nine thousand nine hundred and ninety-nine square feet. Subregional: between one hundred thousand and two hundred and forty-nine thousand nine hundred and ninety-nine. Regional: between two hundred and fifty thousand and nine hundred and ninety-nine thousand nine hundred and ninety-nine. Supraregional: over one million square feet, or those foreseeably impacting more than one region by their nature. All these commercial projects are adjudicated by the Adjudicative Board. It must also establish how the citizenry benefits from the proposal, considering job creation, investment and the contribution to municipal patentes.

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   Step 7: Residential, mixed, recreational, industrial and others

   Residential developments or uses not ministerially permitted may be considered, provided the regulatory or legal provisions allow it. In commercial or mixed developments, where commercial and residential uses are combined in a single structure, access to parking, the parking computations and the pavements must be separate and independent for each use. In extensive commercial recreation, the project’s implications for the transport system and the immediate sector’s development must be considered, including accessibility to the beach and coast. Light industrial projects must be justified in terms of the area’s potential for industrial development, the availability of infrastructure and labour, and the environmental effects with their mitigation proposals. And other developments — tourist, recreational, institutional and communications — must state the distribution of their components, the necessary segregations and the urbanisation works proposed, and propose the calificación districts they seek for the various portions of the plot.

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   Step 8: Projects with special characteristics

   The Adjudicative Board may consider by location consultation projects proposing a density or intensity greater than the district allows or requiring a particular design where no specific district has the necessary parameters; projects that by their nature and intensity require a special location, such as heavy industrial projects and landfills; and projects proposing development on a solar with greater or lesser cabida than established that cannot be considered via a construction variance. In these cases the construction parameters are those the Adjudicative Board sets in the approval resolution, and approval of the proposal does not constitute a change of calificación.

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   Step 9: Public improvements: the twenty-five per cent and the fifteen days

   A location consultation is required for every public improvement not expressly exempted. Puerto Rico Government agencies and their municipalities pay only twenty-five per cent of the charges and fees applicable to the service they request. Where the improvement is on publicly owned land, the proponent submits evidence that it holds title to the plot or is expressly authorised to develop it; where it is on privately owned land, evidence that it notified the plot’s title holder. Every person notified may, within fifteen days of receiving the notice, submit their comments to the Adjudicative Board with a copy to the proponent; nevertheless, the Board may process the consultation before that term has run where the public interest involved so justifies.

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    Step 10: The permanent improvement and the Governor’s discretion

    For every permanent improvement, before filing, the proponent must verify the public policy expressed in the Land Use Plans, the Four-Year Investment Programme, the Comprehensive Sustainable Strategic Development Plan, the calificación maps, the Special Flood Risk Area maps, the Territorial Ordination Plans, the Regional Plans and the applicable regulations. And there is a rule worth knowing before investing time in the file: authorisation to develop any permanent improvement not contemplated within the Four-Year Investment Programme is a discretion of the Governor of Puerto Rico. Moreover, only public improvements complying with the chapter may be announced for public bidding, and the bid announcement includes the filing number given to the improvement.

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    Step 11: How it is evaluated: twenty-nine elements and ten days to respond

    The Adjudicative Board studies, processes and resolves the consultation taking into account, among others, a list of twenty-nine documents and elements: the Memorial Explicativo, the project’s specific location, the sector’s existing uses, the recommendations of OGPe’s Permit Units, the Municipality’s recommendation, the DECA Director’s recommendations, OGPe’s regulations and codes, the statutes and plans cited, the calificación maps, the special flood-risk areas, physical infrastructure availability, topographical features, subsoil condition, landslide risks, the state of the site’s physical and social infrastructure, population density, environmental, cultural and historical conditions, the distance between the land and built-up areas, the land’s agricultural, environmental or tourist importance, and other analogous conditions. The Board consults the concerned agencies when it deems it necessary, and those agencies are required to notify a copy of their comments to the parties; the parties have ten calendar days from the date the comments are notified to respond.

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    Step 12: If more information is asked for, the clock stops

    Where the Adjudicative Board deems it necessary for the analysis, it requires the proponent to submit additional or clarifying information. A term is granted to submit it and a warning is given that, if it is not submitted within the stipulated term, the Board may take the corresponding action, including denying or archiving the consultation for lack of interest. That information may include broader technical studies, such as Hydrological and Hydraulic Studies, Noise Level Studies and Traffic Analyses. And the regulation says it expressly: the six-month period established by law to resolve the consultation is understood to be interrupted while the required information is not provided. The Board adjudicates the consultation, public or private, once compliance with Act 416-2004 and current environmental regulation has been certified.

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    Step 13: Amending the consultation may restart the process

    If changes altering the approved consultation become necessary, an amendment application must be filed in the SUI explaining in detail its nature and reason, with all pertinent documentation. Depending on the changes’ nature and magnitude relative to the original consultation, a new consultation and its corresponding charge may be required. And there is an effect that surprises many: filing an amendment before a determination is taken on the original consultation may restart the interagency processes, and in that case the period to resolve begins from the amendment’s filing date. The proponent must notify any recognised party with a copy of everything submitted, stating whom it notified and on what date.

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    Step 14: Public hearing and notice

    A public hearing is held in location consultation proceedings where the current regulation so requires, or where the Adjudicative Board deems it pertinent. At that hearing any interested person who asks to speak on the matter under consideration is allowed to participate, and it is held under Rule 2.1.20 of the Volume. Once resolved, OGPe notifies the Planning Board or the Autonomous Municipality where the consultation lies of the final determinations on authorised consultations, and notifies its determination to all parties under Rule 2.1.7.

Every consultation is filed with the Adjudicative Board of OGPe or of the Autonomous Municipality with Hierarchy I to III, in the SUI, using the corresponding forms or the official mechanisms available at the agency. The Master Plan and public land transactions, by contrast, are considered by the Planning Board.

• Filing a construction permit when the project first required a location consultation.
• Filing the document in the SUI through a person not expressly authorised: it is treated as not filed.
• Submitting evidence of title from one owner when the plot has several.
• Omitting from the Memorial Explicativo the plot’s susceptibility to flooding or landslides.
• Not stating, in a commercial project, whether it is proposed to use the aisles as sales areas.
• Misclassifying the commercial category by confusing net sales and warehouse area with gross construction area.
• In public improvements on private land, filing without evidence of having notified the plot’s title holder.
• Letting the ten calendar days to respond to the agencies’ comments lapse.
• Amending the consultation before the determination without allowing for the interagency processes restarting.
• Not submitting the additional information within the term: the Board may deny or archive the consultation for lack of interest.

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

• Planning Board

  jp

  jp.pr.gov