As of Friday, June 5, 2009 we have a new Coastal Law. After five years of negotiations, discussions and meetings, the Ley de Desarrollo de Zonas Costeras ("Coastal Law") became law by unanimous vote. The passage of the Law brings to a conclusion the uncertainties engendered by five years of rumors and unknowns.
Below are some highlights of the new Law.
Article 2 of the Agrarian Law of 1917
Article 2 established that the State owned all vacant and untitled (as of 1917) land within 2 kilometers of the coast. The new Law, in Article 62, states that if there is a conflict between existing laws the Coastal Law will prevail over all previous laws. The new Law neither affects nor restricts legally acquired possessor and private property rights that were acquired prior to the passage of the Coastal Law. Article 62 specifically states that this Article is intended to give judicial security for investments and the use and enjoyment of property. The Article further states that whenever the Coastal Law refers to ownership and use of the coastal zone, especially the demarcation of the public use area, the new Coastal Law is the law to apply. All other previous laws that oppose or contradict the new Law are without effect. The diputados believe that this Article makes the Law a non-confiscatory law. Although ANID and the private sector wanted Article 2 to be annulled, Article 62 was the agreed upon compromise. It is hoped that the interpretation of the term “legally acquired’ does not become a weapon for governments in the future to use against rightful property owners.
Access
The Coastal Law states that public access to the beach will be located at all times at historical access points. Historic access is defined in the Law as having been customarily used for ten years or more.
If there is no historical access and none is planned either in the developer’s master plan or in the public development plan, then a new access path will be established. The establishment of the new access path will be done with the approval of the Commission for Coastal Development (CDZC), the Municipality and the landowner and will be 10 meters wide.
Definitions and Concepts
The Coastal Law defines Coastal as being the area or land between the low tide and the maximum high tide along the ocean.
Coastal Zone is defined as the area that is a variable width along the border between the dry land and the wet land.
Restricted Zone is the area within the coast and the coastal zones.
The Coastal Public Use Zone includes the beaches (which is defined as the area that is covered by water at any time) and the area between high and low tide plus 50 meters inland from the mean high tide, but legally acquired rights will be respected. However, the 50 meters will have zoning restriction and a requirement for environmental impact studies on privately owned land. (See Article 19.)
The Public Use Zone along natural lakes and lagoons is the mean high water line plus 5 meters inland. For artificial and man-made lakes, the originally established public domain boundary will control.
The Coastal Restricted Use Zone along ocean lands is the area where the public use zone ends plus 200 meters inland where the land is owned by the State and was not legally acquired prior to passage of the Law.
The Coastal and the Coastal Zones are in the public domain and owned by the State, unless the rights to these areas were legally acquired prior to enactment of the Law.
Private property is described as titles legally acquired prior to passage of the Law.
State owned lands cannot be sold, privatized or transferred. Legally acquired titles that were acquired prior to the passage of the law will be recognized.
Islands are owned by the State unless they were legally acquired prior to the passage of the Law.
Lands belonging to indigenous communities are not in the public domain.
Increases in land along the Coastal Zone shall be property of the State regardless of whether the increases were caused by natural or man-made events.
Possession of publicly owned lands will not, under any circumstances, imply right of possession or title.
CDZC
The Law requires the creation of a Commission for the Development of the Coastal Zones (Comisión para el Desarrollo de las Zonas Costeras (CDZC)). The Commission will be composed of representatives from the Instituto Nicaragüense de Turismo (INTUR), Instituto Nicaragüense de Estudios Territoriales (INETER), Ministerio de Trasporte e Infraestructura (MTI), Ministerio del Ambiente y Recursos Naturales (MARENA), the Nicaraguan Army, the National Police, COSEP, RAAN, RAAS, and the Municipalities (AMUNIC),
CDZC will be responsible for overseeing the development of a Coastal Zone map (to be done within 3 years) and delineating public and private zones (to be done within 5 years). It will also oversee the granting of concessions by the Municipalities and the creation of a Development Plan for the Coastal Zones.
Public Use Zone
The Coastal Law establishes a public use area belonging to the State of 50 meters along the oceans measured inland from the mean high tide line, unless the property was legally acquired prior to passage of the Law. The line for public use areas along natural lakes and lagoons (including Laguna de Apoyo and Laguna de Masaya) is 5 meters from the mean high water line.
Nevertheless, the Law specifically states that if a property owner has legally acquired land and his legal title includes land within the public use zone, the private property owner’s rights and title will be respected. Nevertheless, the government may impose use or zoning restrictions on the area defined as the public use zone.
Some of the allowed activities in the public use zone are: sun and beach tourism; sports; public walkways; emergency vehicle circulation; and temporary lifesaving structures. The prohibited activities include: residential structures; walls; fences; roadways; high tension electric lines; permanent commercial buildings; and parking areas for cars. Nothing will be allowed to be constructed that will obstruct the free use of the public zone by the public.
Concessions
Concessions will be granted on publicly owned land. Publicly owned land includes the coastal zone, the public use zone and restricted use zone so long as these areas are owned by the State. Concessions are not applicable to privately owned land.
Municipalities will have the right to grant concessions with the coordination of the central government. Concessions, once granted, will be registered in a Concession Registry.
Concessions may be granted to Nicaraguans, Nicaraguan corporations and resident foreigners. The procedures and requirements to acquire a concession are to be established by Regulation. The Law lists some requirements to apply for a concession which depend upon the purpose of the requested concession (commercial, tourism, or residential). A bond or guaranty will be required to apply for a concession. Only one concession per person (or his spouse or minor children) may be granted. A concession will be granted for 20 years or in the case of a tourism development for a period of 59 years.
The priority for the granting of a concession will be to favor the party who is in good faith possession of the land.
RAAN and RAAS:
This summary of the Law does not address the rights along the Caribbean or Atlantic Coast. The law has specific provisions for the communities and lands in these areas.
Conclusion
ANID is pleased that the uncertainties of the last five years, pending the passage of the Coastal Law, are finally over. We are hopeful that with the inclusion of Article 62, the Coastal Law will be enforced for the benefit of the public and the public’s right to use of the beaches of Nicaragua, but with respect for the legally acquired property rights of individual property owners.
Gran Pacifica Resort
