LEGISLATIVE ANALYSIS: LAW ON LAND USE
1. Background
The Organic Law on Territorial Planning, Land Use, and Land Management was published in Official Register No. 790, Supplement, on July 5, 2016, after debate regarding the scope of municipal autonomy and the exercise of municipal power over cantonal territory.
2. Urban Planning Concepts
The Law develops basic concepts in urban planning, including the concept of the city under Article 4, the right to the city and the public function of urban planning under Article 5, the social and environmental function of property under Article 7, and the right to build under Article 8.
It classifies cantonal land as urban and rural. Urban land is divided into consolidated, unconsolidated, and protected land under Article 18. Rural land is divided into production land, extractive-use land, urban expansion land, and protected land under Article 19.
Regarding land use, the Law emphasizes specific uses and maximum and basic buildability under Articles 24, 25, and 26. It also addresses urban planning instruments and limitations on compensating affected private individuals under Articles 31 and 39.
The Law develops the concept of urban planning units under Article 49 and regulates real estate integration and subdivisions under Articles 56 and 57.
It also addresses the land market through the right of first refusal, purchase and sale without notification, project announcements and their effects on appraisals, surface rights, and the land bank under Articles 60 to 69.
3. Onerous Granting of Rights and Habitability
This is a mechanism through which the Municipality receives payment, either in money or in kind, for the increase in the value of a property resulting from its transformation from rural land into urban land or into rural urban expansion land, pursuant to Article 72.
In addition, the Law establishes habitability control and the granting of building permits under Articles 79 and 80.
4. Exclusive Powers
The Law, under Articles 90, 92, and 96, disregards the exclusive powers of Decentralized Autonomous Governments by confusing them with concurrent powers.
Pursuant to Article 260 of the Constitution, concurrent powers refer to management in the provision of public services. Land use does not fall within this category, since it is not a public service.
In short, exclusive municipal powers are transformed into concurrent powers shared with ministries of the Executive Branch.
5. Technical Council on Land Use
A state superstructure is placed above local management under Article 93 of the Law, which establishes the creation of the Technical Council on Land Use.
This Council is composed of two representatives of the Executive Branch — the Minister of Housing and the Director of SENPLADES — and one representative of the Decentralized Autonomous and Metropolitan Governments.
Article 92 establishes the powers of this Council. Among them, legislative powers are granted to it through the issuance of mandatory national regulations on urban planning matters, which would even have greater hierarchy than municipal ordinances.
6. Superintendency of Territorial Planning, Land Use, and Land Management
Article 95 of the Land Use Law creates this Superintendency of Land Use for the purpose of controlling and overseeing territorial planning processes.
This overlooks the fact that, under the Constitution, superintendencies may only be created when a public service is involved, which is not the case under this Law.
The Superintendency also has sanctioning authority, legal personality under public law, and its own assets. It operates in a decentralized and independent manner.
In addition, this Superintendency is responsible for monitoring whether ordinances comply with the general guidelines of the Law and may even resolve jurisdictional conflicts.
Finally, it has sanctioning powers.