Since 1999 the architect Miguel San Roman is mired in lawsuits in the courts of the Contentious-Administrative from Madrid; Everything so far in the 21st century has been drowned in sentences and appeals, orders and rulings. Just a few days ago his lawyer filed the last appeal before the Superior Court of Justice of Madrid (TSJM) by the decision of the Contentious-Administrative Chamber of considering executed a 2010 ruling, confirmed by the Supreme Court in 2013, which surprisingly was not published at the time, so it remained secret and could not be executed and that allowed 40 luxury chalets to be built.
The ruling in question annulled the General Urban Planning Plan (PGOU) of Madrid in regards to the Valdemarín areain the neighborhood of Aravacaone of the most expensive and elite areas of the capital, whose mansions do not go below two million euros.
That sentence is the crux of the matter in a strange and twisted story that has rarely been seen by spanish courts. The ruling, of which the judge was the speaker Arturo Fernandez Garciaof March 12, 2010, annulled said PGOU due to a new road that was not included in the agreement of the Government Council of the Community of Madrid by which that part of the General Urban Planning Plan of Madrid was approved in 1998.
Thus, in November 1998, in a surprising way, the neighbors affected by the new urban planning They saw how said area was delimited differently than what had been planned and exposed to public information a year before.
Therefore, one of those neighbors, Miguel San Romangiven the obvious illegality, did not find problems for said PGOU to be judicially declared null and void. He urban planning affected execution unit 4 in which there is a
land of his property of 7,500 square meters, where his
house, which is finally being forcibly expropriated to
execute precisely that General Urban Planning Plan (PGOU).
After the ruling of the TSJM that annulled said Plan, the matter came to the Supreme Court in cassation by the parties appearing in the procedure: the Compañía del Salvador Religious Institute, owner of Mater Salvatoris School; the Madrid City Council; the Valdemarín Este Compensation Board; and Miguel San Román himself.
The Supreme Court annuls the PGOU
The High Court confirmed the judicial ruling of the TSJM, presentation by the magistrate Mariano of Polished Goldon June 12, 2013, and even toughened it with expressions dedicated to the Valdesquí Street road, such as: “irrational and arbitrary, because it is more dangerous for traffic.”
The Supreme Court declared that the nullity of the Plan was independent of the fact that the appellant, Miguel San Romanwhether or not he was the owner of a property in the place and whether it was expropriated.
The High Court returned the proceedings to the TSJM, as required, so that it could proceed to publication in the Official Bulletin of the Community of Madrid (BOCM)as is the case with all sentences. But there is also an express obligation to publish rulings that annul urban planning plans, legal sources tell this newspaper. But it was not done until 2023, ten years later, which allowed 40 luxury chalets to be built in Valdemarín, the price of which exceeds millions of euros each.
Save the school
The new road, on Valdesquí Street, which caused the cancellation of the PGOU, is a pronounced double-curved road with great
slope that gives access to Mater Salvatoris Schoolof the congregation Company of the Savior Religious Instituteand that delimits the area of urban action. The curved layout allowed the religious entity to remove its land from the planning and
keep them as their own, which should never have happened if the layout had not been changed, since these lands would have been part of the urban planning action exactly the same as those of other non-privileged owners.
Ten months after the Supreme Court’s endorsement of the ruling that annulled the PGOU, and with said ruling still unpublished in the BOCM, Judge Arturo Fernández met with the members of the Compensation Board of the Valdemarín Este area (an entity that constitutes with the owners of the plots and builders and which assumes the management of the urbanization).
The meeting was held on December 27, 2013, as indicated in the minutes of the Compensation Boardto which this medium has been able to have access, in which it is stated that “after carrying out numerous efforts we have finally managed to be received by the magistrate-rapporteur of the TSJM. The meeting is scheduled for next day the 27th.”
The TSJM refuses to execute the sentence
Since that meeting, the TSJM continued without publishing the sentence and refused to execute it when Miguel San Roman he claimed it. The execution of the sentence implied that the Community of Madrid should proceed to reform the annulled PGOU, modifying the layout that had been annulled as irrational, arbitrary and for responding
solely to the interests of a religious entity, in addition to being
incompatible with road safety.
In 2015, in another ruling by the same judge, Arturo Fernández, the demand for execution of the sentence was archived because the court said that San Román was no longer entitled to request execution since it had been expropriated and was no longer part of the planning as owner. questioned urban planning.
In this way, the Contentious-Administrative Chamber of the TSJ of Madrid ignored the Supreme Courtwhich expressly indicated that the fact of expropriation had nothing to do with the annulment of the PGOU.
Reduce speed
In 2019 the sentence was still not published. The road declared illegal had been built and two planning licenses had been granted to build luxury chalets. The area of action declared null and void by the Supreme Court was taking shape and was being consolidated with a new neighborhood for the rich.
Once Miguel San Román was out of the proceedings, one of his sons appeared, protected by legislation on urban planning matters that says that any person has legitimacy to request the execution of sentences in lawsuits on this matter.
To the new demand for execution of the sentence, the court responded by saying that it was already fulfilled because the Madrid City Council had reduced the speed on the contested road and had converted it into a one-way street. With these measures, the court considers the sentence executed. Once again, Judge Fernández García is the rapporteur of the resolution.
Does the TSJM write the PGOU?
But this order – against which the San Román family has filed an appeal for reconsideration pending resolution at this time – could contravene what is indicated in article 71 of the Law regulating the Contentious-Administrative Jurisdiction (LJCA): “The jurisdictional bodies will not be able to determine the way in which the precepts of a general provision are to be worded to replace those that they annul, nor will they be able to determine the discretionary content of the annulled acts.”
That is, the court cannot replace the Community of Madridwhich is responsible for urban planning, to declare that the annulled PGOU is now amended with a speed reduction on the road declared illegal. The court of Contentious-Administrative cannot add content to an urban layout.
The recusal of Judge Fernández
In May 2021, Miguel San Roman presented a challenge against Judge Arturo Fernández. It occurred before the last resolution cited in the previous paragraphs regarding the claim made by his son. In the challenge, it is stated, among other reasons, that the magistrate could have been contaminated by having met secretly with the Compensation Board.
Specifically, the recusal incident refers to the judge’s meeting with members of the Compensation Board on December 27, 2013, after which the court denied San Román the execution of the sentence. Said meeting was held only with one of the parties without the opposing party, that is, Miguel San Román, having knowledge of it and, therefore, without giving him the option to also meet with the judge reporting on the case.
Neither the meeting nor its results appear in the judicial procedure. Miguel San Roman He found out by chance and long after it had occurred, according to sources close to the case.
But in his own defense, Judge Arturo Fernández argued that he fulfilled his legal obligation to give a hearing to the parties (in this case, only one of them) and the challenge was rejected.
The ruling is published a decade later
On April 21, 2023, the judge Arturo Fernández was once again the speaker of a crucial resolution in the entire judicial journey that affects the urban action plan of Valdemarin. In response to the request of the San Román family, the court ordered the publication of the sentence in the Official Gazette of the Community of Madrid, ten years after it became final, on June 12, 2013.
In the order that ended up ordering it, article 72.2 of the LJCA is cited: “The annulment of a provision or act will produce effects for all affected persons. Final sentences that annul a general provision will have general effects from the day on which it is published its ruling and annulled precepts in the same official newspaper in which the annulled provision would have been published. The final sentences that annul an administrative act that affects an indeterminate plurality of people will also be published. But no mention is made of the reason why it was not published at the time.
In other words, no less than ten years later they proceeded to act in accordance with the law and publish a court ruling in the official bulletin of the corresponding autonomous community. It remains to be known the reason why the publication was not made after the Supreme Court ruling that gave finality to the TSJM ruling. A concealment that has allowed the construction of 40 luxury chalets that could be formally classified as illegal, according to the judicial documentation that supports this report.
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