Planning Board permit audit: what it reviews and how it ends

It is Chapter 11.3 of Joint Regulation No. 9473. Its purpose, the text says, is to provide a uniform procedure for the Planning Board to audit final determinations, certifications and permits issued by OGPe, Authorised Professionals, Authorised Inspectors, Licensed Professionals and autonomous municipalities with hierarchy I to III; and to audit those professionals’ compliance with the legal provisions on permits, licences or certifications issued under Ley 161-2009. It is promulgated under Ley No. 135 of 15 June 1967, Ley 161-2009, the Board’s Organic Act, Ley 81-1991 and Ley 38-2017.

An audit is not something a citizen files: the Planning Board opens it. But it matters to citizens in two ways. The first is that one of the three classes of audit is the one carried out as a product of the findings of a complaint investigation, so a well-filed complaint can lead to an audit. The second is that, if your permit or your neighbour’s is audited, there is a ten calendar day term to present clarifications or disagreements with the findings and the corrective actions to be implemented.

• That there is a final determination, certification or permit issued by OGPe, an Authorised Professional, an Authorised Inspector, a Licensed Professional or an autonomous municipality with hierarchy I to III.Verified against the official source
• If findings are notified to you: presenting any clarification or disagreement, and the corrective actions to be implemented, within ten (10) calendar days of the notice.Verified against the official source
• Giving the auditor access: if access to the place or the requested information is refused, the auditor may request the aid of the Court of First Instance.Verified against the official source

Information pending verification.

1. 1

   Step 1: Who audits and whom

   Audits are carried out by the Planning Board’s Audits and Complaints Division, and may focus on two different things. One: final determinations, certifications and permits issued by OGPe, Authorised Professionals, Authorised Inspectors, Licensed Professionals and autonomous municipalities with hierarchy I to III. The other: those professionals’ compliance with the legal provisions on permits, licences or certifications issued under Ley 161-2009 and any other applicable law or regulation. That is: both the document and the person who signed it are audited.

2. 2

   Step 2: The three classes of audit

   The regulation distinguishes three. First: audits the Board carries out on final determinations, certifications and permits issued by OGPe, PAs, IAs, PLs and hierarchy I-III municipalities. Second, and this is the one that most concerns a neighbour: audits the Board carries out as a product of the findings of the investigation of a complaint over those same determinations, certifications and permits. Third: audits of PA, IA and PL compliance with the legal provisions on permits, licences or certifications issued under Ley 161-2009.

3. 3

   Step 3: The ninety days, exactly as written

   The audit is carried out by a JP Compliance Auditor. And the regulation sets a time cap with an exception worth reading carefully: those audits, "with the exception of those contemplated in items (a) and (c) of Section 11.3.2.1", will be carried out within a period no longer than ninety days from the date the final determinations, certifications and permits were issued. Items (a) and (c) are, respectively, the general audits of determinations and permits and the audits of professionals’ compliance; so, as drafted, the ninety-day cap falls on the remaining class, the audit born of a complaint’s findings. We reproduce it as written and do not smooth it over. Audits are carried out according to currently recognised best practices.

4. 4

   Step 4: What the auditor may do

   The list of powers is long and worth knowing. The auditor may review physical and electronic files; carry out inspections to verify the matters under audit; during those inspections enter, access and examine any property — establishments, properties, premises, equipment, installations and documents — of any natural or legal person under its jurisdiction, in order to investigate the complaint’s allegations and compliance with applicable laws and regulations; collect findings in an audit report and recommend the process the Board should follow; request information from the persons whose determinations are under audit; take notes, photographs, measurements, estimates and a record of any data observed; interview people with knowledge of the matters; and administer oaths during investigations, oaths that do not cancel internal revenue stamps.

5. 5

   Step 5: And the orders it may issue

   This is the part with teeth. If access to the place covered by the determination, certification, permit, or the requested information, is refused, the auditor may request the aid of the Court of First Instance. And it may issue orders of cease and desist, immediate stoppage, correction of curable errors and suspension of basic services and utilities in four situations: the absence of a permit for the activity carried out; breach of the provisions or conditions of the permit granted; use of a false, fraudulent or adulterated permit; or breach of any provision of Ley 161-2009, the enabling acts of the government entities concerned, Ley 81-1991, the Joint Regulation itself or any other applicable regulation. In addition, the auditor takes notice of every violation of laws and regulations arising from the audit process, not only those it went looking for.

6. 6

   Step 6: The preliminary report and its four contents

   The Compliance Auditor renders a Preliminary Audit Report with the findings and recommendations, including four things: a copy, reference or digital link to the final determination under audit; a list of every document reviewed during the process, specifying where each came from; a list of the apparent violations of laws and regulations found; and, where an inspection was carried out, a detailed description of that inspection’s findings. The report is referred to the Permit Audit Officer so the Audits and Complaints Division issues a Notice of Findings and proceeds under the powers recognised in Ley No. 75 and Ley 161-2009.

7. 7

   Step 7: The ten days to answer

   The Audits and Complaints Division notifies the preliminary audit report to OGPe, the Authorised Professional, the Authorised Inspector, the Licensed Professional or the hierarchy I-III autonomous municipality, as applicable. Whoever receives that notice has ten calendar days to present any clarification or disagreement with the findings notified by the Board, and the corrective actions to be implemented. That term runs from the date of the notice of findings. Once the answer is received, the auditor issues a Final Audit Report and refers it to the Permit Audit Officer to decide what action follows.

8. 8

   Step 8: If there is a violation: fine, stoppage or revocation

   The Permit Audit Officer, or the person the Board designates, decides what follows on the basis of the Final Audit Report. If the report shows a violation of the applicable laws or regulations, the Permit Audit Officer, the hierarchy I-III autonomous municipality or the government entity concerned, as applicable, will issue an administrative fine under Article 14.13 of Ley 161-2009 and Chapter 11.4; or may start the procedure of Chapter 11.6 to require the stoppage, legalisation, curing or rectification of the construction works or of any final determination, the revocation of the permit, or any other action authorised by the applicable laws and regulations.

9. 9

   Step 9: If the person audited is a professional

   Where the audit was of an Authorised Professional, an Authorised Inspector or a Licensed Professional and the Permit Audit Officer determines a violation of laws or regulations exists, it files a complaint under Rule 11.2.2 to revoke the authorisation that allows them to issue certifications or permits. And there is a further consequence worth knowing: the Examining Boards or professional colleges that regulate them are notified of the filing of any complaint and of the start of any disciplinary proceeding against the professionals whose conduct they regulate, so that they may take whatever action is appropriate.

10. 10

    Step 10: If there is no violation

    The regulation also closes the other side. If the Final Audit Report shows no violation of the applicable laws or regulations, the Permit Audit Officer, the hierarchy I-III autonomous municipality or the government entity concerned, as applicable, will report that to the audited person or entity in the Notice of Findings.

Audits are carried out by the Planning Board’s Audits and Complaints Division, and the Preliminary and Final Reports are referred to the Permit Audit Officer. An audit is not applied for: the Board opens it. The route by which a citizen can prompt one is the complaint, because one of the three classes of audit is precisely the one carried out as a product of the findings of a complaint investigation.

• Asking for an audit as if it were a filing: the regulation has the Board open it, not the citizen.
• Letting the ten calendar days to clarify or disagree with the findings lapse.
• Leaving the corrective actions to be implemented out of that answer.
• Refusing the auditor access, when they may request the aid of the Court of First Instance.
• Believing an audit only ends in a fine: it can also revoke the permit.
• Assuming the audit is limited to what it went looking for, when it takes notice of every violation that arises.
• Thinking an audited professional answers only to the Board and not to their examining board.

These are the government pages this guide is based on.

• Junta de Planificación de Puerto Rico (JP)

  Junta de Planificación

  docs.pr.gov

• Planning Board

  jp

  jp.pr.gov