Ministerial or discretionary permit: why some take days and others months

It is Chapter 2.2 of Joint Regulation No. 9473, titled Criteria for Evaluating, Processing and Disposing of Ministerial Matters. It establishes how every filing starts — with electronic filing through the SUI on the single internet filing portal, accompanied by all required documentation, including the environmental compliance determination and payment of the corresponding charges and fees — and then separates two routes. Ministerial matters are handled by OGPe, by hierarchy I-III Autonomous Municipalities or by Authorised Professionals. Discretionary matters are handled by the Junta Adjudicativa, OGPe’s Secretario Auxiliar or the hierarchy I-III Autonomous Municipalities. This guide covers that distinction, its deadlines and the presumption of correctness of permits. The same chapter’s validity terms and extensions have their own guide on this site.

Ministerial permits are issued for the uses specifically permitted in each district, and must always fully comply with ten parameters: qualification, uses, height, lot size, density, occupancy area, gross floor area, front, side and rear yards, parking spaces and loading area. They are issued only where the structure or use for which the permit is sought is in complete harmony and conformity with the Regulation’s provisions. If your project does not fit within those ten parameters, it is not ministerial: it enters through the discretionary route, handled by the Junta Adjudicativa, OGPe’s Secretario Auxiliar or the hierarchy I-III municipalities, with mandatory notice to abutting neighbours and longer terms. And every application, whichever route, starts with electronic filing through the SUI, accompanied by the required documentation, the environmental compliance determination and payment of charges and fees.

• Filing the application electronically through the SUI on the single internet filing portal, accompanied by all required documentation, including the environmental compliance determination and payment of the corresponding charges and fees.Verified against the official source
• For a ministerial permit: that the structure or use be in complete harmony and conformity with the Regulation, be among the uses specifically permitted in the district, and fully comply with the ten parameters — qualification, uses, height, lot size, density, occupancy area, gross floor area, yards, parking spaces and loading area.Verified against the official source
• For a discretionary matter: notifying the filing to the abutting neighbours of the property where the action is proposed, by certified mail, within not more than five days following the filing, and uploading copies of the certified mail within the next five days of sending them.Verified against the official source
• For a discretionary matter: submitting an explanatory memorial with the project’s specific location, existing uses in the sector, physical infrastructure availability, topographic features, subsoil condition, landslide risks, population density, environmental conditions and the other elements the regulation lists.Verified against the official source
• Where an abutting neighbour cannot be located by ordinary means: complying with Section 2.1.9.8 of Volume II on the Alternate Notification Method.Verified against the official source

• The environmental compliance determination, which accompanies the application from the electronic filing in the SUI.
• In discretionary matters: copies of the certified mail by which the abutting neighbours were notified, uploaded to the system within five days of sending them.
• In discretionary matters: the explanatory memorial, accompanied by the recommendation of OGPe’s Permit Units, the DECA Director’s recommendation and the Municipalities’ recommendation.
• If you receive a curing requirement you disagree with: an Expedited Administrative Review Request before the Administrative Review Division, within five days of the requirement.

1. 1

   Step 1: Everything starts the same way: the SUI

   Processing any application to be evaluated by hierarchy I-III Autonomous Municipalities, OGPe, the Authorised Professionals and Inspectors and the Government Entities Concerned begins with filing it electronically through the SUI on the single internet filing portal, accompanied by all required documentation, including the environmental compliance determination and payment of the corresponding charges and fees. Every application filed is assigned a unique number the proponent must quote in every document, correspondence and information request. The digital administrative file holds every document filed or produced by any party with legitimate interest, and every document added receives a digital seal with date and time and is notified automatically to the proponent and to any other party or agency that has appeared.

2. 2

   Step 2: The ten parameters that define ministerial

   Ministerial permits are issued for the uses specifically permitted in each district and must always fully comply with these parameters: qualification; uses; height; lot size; density; occupancy area; gross floor area; front, side and rear yards; parking spaces; and loading area. Ten. If your project meets all ten, and the structure or use is in complete harmony and conformity with the regulation, your case is ministerial. If you step outside just one, it is not. That is the line explaining why the neighbour’s permit came through in days and yours took months.

3. 3

   Step 3: What it means that there is no discretion

   To evaluate ministerial permit applications, only the specific requirements of the laws or regulations applicable to the facts presented are applied, and no special discretion or judgment is used to reach the determination, since it involves only the use of fixed standards and objective measures. In evaluating ministerial permit applications, officials or the Authorised Professional may not use subjective, discretionary or personal judgments in deciding whether an activity should be carried out or how it should be carried out. It is a guarantee in both directions: nobody can deny you a ministerial permit on personal criteria, and nobody can grant you one that does not meet the parameters.

4. 4

   Step 4: The ministerial route’s deadlines

   Before OGPe: the application is referred to the Permit Office officials, who issue their recommendations within a maximum of ten days for applications in urban zones and thirty days where the petition sits in non-urban areas, counted from referral. The Permit Managers’ recommendations go to OGPe’s Secretario Auxiliar, who issues the final determination notice within not more than five days. Before a hierarchy I-III Autonomous Municipality: the same ten or thirty days, counted from receipt of the application in the SUI, and then five days for the Permit Office Director to issue the notice. And before an Authorised Professional: they evaluate the application and its accompanying documents and issue the permit within a maximum of five days from receiving the application.

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   Step 5: Subrogation and deemed approval

   This is the part almost nobody knows. OGPe’s Secretario Auxiliar evaluates the permit through the subrogation mechanism within not more than fifteen days for applications in urban zones or thirty days in non-urban areas, in cases where a Permit Manager or the DECA Director let the term set for issuing their recommendation lapse without issuing it. And after subrogation, where the Secretario Auxiliar does not issue the permit within the term established, the application is understood approved to all legal effects. That is: administrative silence, after subrogation, runs in the applicant’s favour.

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   Step 6: The discretionary route: first, tell the neighbours

   Every application for a discretionary matter under OGPe’s or hierarchy I-III Autonomous Municipalities’ jurisdiction must be notified by the applicant to the abutting neighbours of the property where the action is proposed, complying with Rule 2.1.7 and Section 2.1.9.7, within not more than five days following the filing. That notice is by certified mail. And the applicant must upload copies of the certified mail to the system within the next five days of sending them. Where an abutting neighbour cannot be located by ordinary means, Section 2.1.9.8 on the Alternate Notification Method must be complied with. If you are the neighbour who got the envelope, that is the notice that there is a discretionary case next door.

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   Step 7: Discretionary deadlines and the curing clock

   All discretionary filings entailing a public hearing or requiring an Environmental Impact Statement must be evaluated and adjudicated within not more than one hundred and eighty days, counted from when the application was deemed complete. Those not entailing a public hearing, within not more than one hundred and twenty days. Those terms, and any the Secretario Auxiliar sets by Administrative Order, may never exceed those established in Act 161-2009. And there is a rule worth understanding properly: where curing of the application is required, the time the applicant takes to answer the requirement is not included in calculating the term the agency has to adjudicate. The curing requirement must identify the deficiencies, the regulatory or statutory grounds it rests on, and generally indicate the form and requirements to complete the application. And if you disagree with what is required, you may go within five days to the Administrative Review Division through an Expedited Administrative Review Request.

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   Step 8: What gets evaluated in a discretionary case

   OGPe’s Secretario Auxiliar or the municipality studies, processes and resolves discretionary applications taking into account an explanatory memorial including, without limitation: the project’s specific location; existing uses in the sector; the recommendations of OGPe’s Permit Units and of the DECA Director; OGPe’s regulations and the construction codes adopted; Act 161-2009, Act No. 75, Act 107-2020 and Act 416-2004; the Comprehensive Sustainable Strategic Development Plan; the Land Use Plan; the special, regional and territorial ordination plans; the zoning or qualification maps; the special flood risk areas; physical infrastructure availability; topographic features; subsoil condition; landslide risks; the state of physical and social infrastructure on site, including streets, water and sewer, electricity, transport, refuse collection and police service; population density; environmental conditions; the distance between the land and built-up areas; the land’s agricultural, environmental or tourism importance; and other analogous social, economic and physical conditions. It is also accompanied by the recommendations of OGPe’s Permit Units, the DECA Director and the Municipalities.

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   Step 9: If you do not deliver what is asked

   Where the Secretario Auxiliar deems it necessary, they may require additional or clarifying information. The party it is addressed to may seek an extension of the term granted, complying with the corresponding payment regulation. But if that information is not submitted within the term established, OGPe may issue whatever determination lies in law, and may archive the petition; in cases where the petitioner does not comply with what was requested, they will have to start the application process over. Starting over is not a figure of speech: it is what the text says. And once the matter before the Secretario Auxiliar is adjudicated, the resolution with the agreement is prepared and notified within not more than twenty days, by email.

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    Step 10: Your permit is presumed correct and lawful

    There is a presumption of correctness and legality for the final determinations and permits issued by OGPe, the Authorised Professionals or the hierarchy I-III Autonomous Municipalities. They may be revoked by the Court of First Instance only where, after the corresponding administrative investigation, it learns the final determination was obtained in violation of applicable laws or regulations, or where it was obtained lawfully but there is evidence of non-compliance with laws and regulations during its execution or operation. Under no circumstance is a final determination suspended without a judicial authorisation or mandate from a competent court or the corresponding forum. And a final determination or permit is considered final and firm, and may not be challenged, once the applicant has met all the requirements set in the final determination notice and the twenty-day term has passed. Note a warning from the regulation itself: approval of a public consultation does not in any way imply approval of the transaction or of the construction permit itself.

Every application starts with electronic filing through the SUI on the single internet filing portal. Ministerial matters are handled by OGPe, the hierarchy I-III Autonomous Municipalities or the Authorised Professionals; the filing before an Authorised Professional starts when they submit the required documents and payment of the charges and fees. Discretionary matters are handled by the Junta Adjudicativa, OGPe’s Secretario Auxiliar or the hierarchy I-III Autonomous Municipalities. The final determinations of the Secretario Auxiliar and of the Authorised Professional are considered final determinations of OGPe. Review of a determination is sought before the Administrative Review Division, and in discretionary matters judicial review before the Court of Appeals is also available. If you disagree with a curing requirement, the route is the Expedited Administrative Review Request before that same Division, within five days.

• Assuming a project is ministerial without checking it against the regulation’s ten parameters.
• Filing a discretionary matter and not notifying the abutting neighbours by certified mail within the following five days.
• Notifying the neighbours and not uploading copies of the certified mail within the next five days.
• Letting the five-day window pass to challenge a curing requirement you disagree with.
• Believing the one-hundred-and-twenty or one-hundred-and-eighty day clock runs while you take time to cure: that time does not count against the agency.
• Not submitting the additional information required and losing the petition to archiving, having to start over.
• Ignoring the subrogation rule when the agency let its own term expire.
• Thinking approval of a public consultation is already approval of the transaction or of the construction permit.

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