“Justice shelters and protects against the sentence pronounced by the regional hall of Center 3 of the federal tribunal of administrative justice on August 20, 2019, of judgment 3652/18.” Resolution of the magistrates. *Explanation from Jesus required-RM

“Justice shelters and protects against the sentence pronounced by the regional hall of Center 3 of the federal tribunal of administrative justice on August 20, 2019, of judgment 3652/18.” Resolution of the magistrates.  *Explanation from Jesus required-RM

 

 

 INAH’S Discretion Halted

In San Miguel de Allende, demolished walls, modified facades, walls and construction with heights beyond designated norms, excavation up to three meters deep and eight meters wide—are some of the building rules disregarded in the last few years. Many of these transgressions are taking place in the historic center of San Miguel, impacting monuments protected by federal law. In many cases the municipal government has taken no punitive action, either because it can’t do anything or because it has chosen not to act.

Dirección de Patrimonio y Centro Histórico (Office of Heritage and the Historical Center) is not the only local government agency responsible for the first line of protection of historical buildings. It is also the responsibility of the Federal Government, specifically the Instituto Nacional de Antropología e Historia (National Institute of Anthropology and History)—known as INAH. This federal institution has had to retract an authorization that impacts the Casa del Inquisidor (The Inquisitor’s House) at Aldama 1.

This building was granted historical monument status by federal decree on June 28, 1982. The protection extended to the owners of the Casa del Inquisidor (represented by the law firm of Hernández and Pérez Salinas), setting a precedent in protecting buildings within the historical center. Local government has not been able to establish such extensive protection or solutions for preservation within the rest of the center of town.

The case

The Casa del Inquisidor is located within the Zona de Monumentos Historicos (Zone of Historical Monuments). There is little known history regarding this building; however, according to oral tradition, it dates back to 1780. The priest Juan Manuel Villegas lived there and was in charge of resolving inquisitorial cases in San Miguel, Dolores, and San Felipe.

According to attorney Juan Ponciano Hernández of the Pérez Salinas firm, unauthorized renovation work was initiated, and later the construction of a four-story building was begun adjacent to Aldama 1. As representatives of the Casa del Inquisidor, the firm gave notice to INAH that appropriate actions should be taken, since Aldama 1 is a historical monument with legal prerogatives.

The Reglamento de la Ley Federal sobre Zonas de Monumentos y Zonas Arqueológicos, Artísticos e Históricos (Regulations of the Federal Law regarding Zoning of Monuments, Archeological, and Historical Areas) has very specific rules for protection of historical sites in Article 42. It states that any work within a historical area or on a designated historical monument can only be done after authorization is given by the appropriate institution. To secure this approval, a request must be submitted containing, among other requirements, plans and specifications of the work to be done, with descriptions and current photographs of the site. In the case of a real estate property, one needs to submit its boundaries and express the willingness to have inspections done by the INAH, and acceptance of the its decision. Contractors guarantee payment for any damage that the historical building might incur.

Authorization given

Work on Aldama 1 was suspended for over one month. But, on April 23, 2018, according to Hernández, INAH, represented by delegate David Jiménez Guillén, authorized the work without the prior requisites.

Hernández finds this rash authorization surprising. Jiménez Guillén authorized the work because the new structure would fall within the urban building codes. According to the document, the new construction adjacent to Aldama 1 would not surpass the surrounding buildings in height and would integrate into the existing urban profile. In INAH’s inspection there was also no mention of the extension of space of the construction.  

Hernandez commented, “These boundaries are the only foundation and reason for external authorities (meaning INAH?) to authorize a work [building] of four stories within the historical center and adjacent to a [historical] monument. This, according to the laws of monuments and regulations, is illegal because in order to authorize any construction adjacent to a [historical] monument there are requirements to be complied with: expert studies must be conducted that assure the structure of the historical monument will not be impacted, and testing of the soil and structures must be completed, at the very least. There was never a study of the soil and whether the weight of a four-story building would sink or tilt to one side, or whether the new construction would be overburdened.” He added that the concessions granted by INAH are “a serious disregard of the preservation of the

monument.” He also stated that it is evident that the projected size of the new construction will impact the urban profile.

A suspension of judgment

INAH’s decision, two years ago?, prompted a suit seeking annulment of the authorization for the construction adjacent to La Casa del Inquisidor. It was presented to the Tribunal de Justicia Fiscal y Administrativa (Tribunal of Fiscal and Administrative Justice) at the Celaya branch. The tribunal, however, determined that INAH has the discretionary authority to grant permits. Hernández added, “It is not sufficient to cite articles; one needs to study the case. It was their obligation to grant a permit based on the regulations in order to guarantee that the stability and character of the monument are not affected, and this did not happen in this case. INAH did not do its job, and they did not protect the monument.”

Following the resolution before the tribunal, those affected brought the case to the Tribunal Colegiado de Circuito (Collegiate Circuit Court). The claim was that INAH had clearly given a building permit without following the prerequisites of Article 42 of the laws governing historical monuments.

“There are no experts who could guarantee that there would be no damage. There is no request for a bond. It says that because the urban profile was not affected and that the size [of the building] matches the size of the house, it could authorize the work. There are regulations about what needs to be done. It is a historical monument, and it is in the historic center. With the type of discretionary power that some authorities have, permits receive a yes, and sometimes no. This is not how you apply the law. History and the surroundings of San Miguel are in jeopardy.” (Was the construction halted? If so, on what date?)-Francine

This is then, how it was resolved: Justice shelters and protects against the sentence passed by the regional center 3 of the Tribunal federal de justicia administrativa of August 20, 2019, of  Judgement /3652/18.” What??-RM

What happens next?

In September 2018, Atención had a conversation with delegate Jiménez Guillén who sent a message to the administration that was about to be sworn in on October 9 of that year: “The incoming government has to establish a mechanism that will guarantee that the values for which San Miguel was placed on the list of World Heritage Sites by UNESCO be maintained. This can be accomplished with a management plan and with an administrative body that strives to know what is going on.”

Nevertheless, in April 2019, the Tribunal de Circuit granted authorization for the construction at Aldama 1.

Lack of permits or mandates

The director of Patrimonio y Centro Histórico (Heritage and Historical Center), Francisco García, told Atención that he did not know if an earlier construction authorization had been granted in the past. He added that no authorization for such work had been granted since the beginning of the administration on October 10, 2018. Atención contacted one of the owners of the property at Adama 1, and even though he himself had invited us for a “talk,” he would not answer any questions and would only state that the work site is legal.

What comes next?

The magistrates say that clearly the permit was not granted in accordance with the existing laws. The burden of proof rests with INAH, which should have made sure that the requirements of the law were met. There was no survey and no bond, and this should be explained, said attorney Hernández. He concluded by stating, “As attorney, it is my responsibility to follow up on the consequences of the annulment of the permit. I could ask for demolition of the new existing work. This would be logical because how can there be a survey if construction has already begun? How can there be structural plans if there never were any? It would make sense to demand that something done wrong in the first place not be patched up, especially if there is no permit. This is the logic of jurisprudence—if there is no permit, and they want the building site to be legal, they need to start from zero. They would have to tear it down, and then the authorities would issue a permit according to legal regulations.” At present the construction has stopped.