Citations
- 197 F. Supp. 3d 340
Full opinion text
OPINION AND ORDER
GUSTAVO A. GELPI, United States District Judge
After twelve years of litigation in this First Amendment case involving the rights of Jehovah’s Witnesses, the Court is at a crossroad regarding a widely-debated question of Puerto Rico real property law. Are roads in gated urbanizations of private or public nature? Specifically in this case the issue pertains to streets within Estan-cias del Golf Club in the Municipality of Ponce. However, the much broader legal issue pertains to many other such communities within the island’s municipalities.
Pending before the Court are Plaintiffs’ and Defendant Municipality of Ponce’s (“Ponce”) Cross-Motions for Summary Judgment. (Docket Nos. 1630; 1635.) Both parties submitted substantial oppositions and replies to the respective memoranda of law and statements of fact. (Docket Nos. 1655; 1682; 1698.) Shortly after Plaintiffs and Ponce moved for cross-summary judgment, upon order of the Court, Plaintiffs joined the Residents’ Association of Estan-cias Del Golf Club (“Estancias del Golf Club” or “EGC”) as a party to this litigation. (See Docket Nos. 1662; 1664; 1686.) The Court heard oral arguments on February 17, 2016 at the Luís A. Ferré Courthouse in Ponce, Puerto Rico. (See Docket No. 1701.)
Plaintiffs posit that Estancias del Golf Club’s streets are public, therefore said gated community is subject to this Court’s orders and permanent injunction, hence, Jehovah’s Witnesses must be granted access. (Docket No. 1630.) Ponce stands on the opposite side of the spectrum, contending that because the streets at Estancias del Golf Club were never conveyed to the municipality, they are private and therefore not subject to the injunction. (Docket No. 1635.) Both the First Circuit and this Court in this litigation have held that streets in Puerto Rico are public in nature. After protracted litigation, and various appeals, the Municipality of Ponce raised the argument—for the first time in April, 2015—that Estancias del Golf Club, a manned gated community, has private streets, therefore, said urbanization is exempt from this Court’s injunction granting Jehovah’s Witnesses access to gated communities to engage in religious activity protected by the First Amendment. (Docket No. 1635.)
After reviewing the parties’ submissions and pertinent law, the Court GRANTS Plaintiffs’ motion for summary judgment at Docket No. 1630, and DENIES Ponce’s motion for summary judgment at Docket No. 1635.
I. Overview of the Case
Before delving into the required legal analysis, the Court shall summarize the background and procedural history of this action for the benefit and understanding of the parties and the public.
Plaintiffs Watchtower Bible Tract Society of New York and the Congregación Cristiana de los Testigos de Jehová de Puerto Rico, Inc., initiated this action in 2004, seeking declaratory and injunctive relief under 42 U.S.C. § 1983, for violations of their right to free speech and free exercise of religion, under the First and Fourteenth Amendments of the Constitution of the United States. (See Docket No. 49 ¶¶ 10-12, 62.) The Municipality of Ponce is one of eleven named municipalities and several gated community defendants. Plaintiffs filed suit on behalf of Jehovah’s Witnesses who practice their faith and are, or have been, affected in the free exercise of their religion, as a result of the Puerto Rico’s Controlled Access Law, Law No. 21 of May 20, 1987, P.R. Laws Ann. tit. 23, §§ 64-64h. Jehovah’s Witnesses profess the Bible’s message publicly by proselytizing from house to house. This activity falls within the protected speech of the First Amendment of the Constitution of the United States. See Watchtower Bible & Tract Soc’y of N.Y., Inc, v. Vill. of Stratton, 536 U.S. 150, 160-61, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002).
In February, 2011, the United States Court of Appeals for the First Circuit remanded this case to this Court to assure that defendant municipalities and urbani-zations comply with the law, and that Jehovah’s Witnesses are allowed to enter urbanizations to engage in constitutionally protected activity. Watchtower Bible and Tract Soc’y of New York v. Sagardía de Jesús, et ah, 634 F,3d 3 (1st Cir.2011), rehearing denied, 638 F.3d 81 (1st Cir. 2011), cert. denied 565 U.S. 1014, 132 S.Ct. 549, 181 L.Ed.2d 396 (2011).
The First Circuit found the Commonwealth’s Controlled Access Law to be constitutional on its face. It nonetheless found that both manned and unmanned gates, as operated, violated Jehovah’s Witnesses’ First Amendment right to access public streets within controlled access urbaniza-tions. Id. at 634 F.3d at 10 (citing Vill. of Stratton, 536 U.S. at 160-62, 122 S.Ct. 2080) (“[a]ccess to public streets and property for purposes of expression, including door-to-door religious proselytizing, has long been protected by the First Amendment.”). “Public streets and sidewalks are presumptively traditional public forums, and the Supreme Court has repeatedly reaffirmed their status as places for expressive activity.” Watchtower v. Sagardía de Jesús, 634 F.3d at 11 (internal citations omitted).
a. Remand and District Court’s remedial scheme
After the First Circuit remanded the case to the district court, the municipal defendants were required to ensure Plaintiffs could access all manned and unmanned gated urbanizations. They were given the opportunity to propose action plans to ensure access to all such urbaniza-tions. The Court fashioned its declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (2010). (See Docket No. 710.) The Declaratory Judgment Act confers substantial discretion on the federal court to declare the rights of litigants. See KG Urban Enterprises, LLC v. Patrick, 693 F.3d 1, 27 (1st Cir.2012) (citing Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995)). The Court relied upon Puerto Rico’s Civil Code and Supreme Court precedent to determine which ur-banizations fall under the auspices of the Controlled Access Law.
Subsequently, the Court made several rulings that ensured Plaintiffs could access both manned and unmanned urbanizations around the clock. In doing so, the Court balanced federal constitution and principles with those contained in the Puerto Rico’s Constitution and laws. As to unmanned urbanizations, municipal defendants were ordered to collect and deliver to Plaintiffs a means of access to all unmanned urbanizations located within their municipality. Depending on the means of access, each urbanization was ordered to deliver to Plaintiffs a physical key, an access code, a beeper, or any other device necessary to permit entry to the urbanization. The means of access provided had to be equal to that of the residents of those urbanizations and had to grant Plaintiffs unfettered access to the urbanizations. (See Docket No. 978.) The remedy provided by the Court was confirmed on appeal, except for some minor modifications. See Watchtower Bible and Tract Soc’y of New York v. Mun. of San Juan, et al., 773 F,3d 1 (1st Cir.2014).
b. Defendant Municipality of Dorado and Brighton Country Club
On remand, during the implementation of the First Circuit’s mandate, Dorado was the first defendant municipality to argue that an urbanization within its bounds was privately owned and completely closed to the public. Said urbanization, Brighton Country Club (“BCC”) operated under an unmanned controlled access regime. Upon order from the Court, Dorado submitted a brief in support of this contention with the original deed of the property (“Original Deed”), certification of the development from Dorado, the declaration of the Municipal Administrator, Orlando Ivan Vargas López, and the segregation deed (“Segregation Deed”). (See Docket Nos. 1087-1087-2,1169-1.) Plaintiffs opposed. (Docket No. 1132.)
Based on these facts, Dorado argued that BCC’s roads were completely private, closed to the public, and not subject to the orders of this Court. Dorado supported its position by emphasizing that BCC paid for the development of the roads and maintained the roads without Dorado’s assistance. (See Docket No. 1087 ¶¶ 6-8.)
c. Inter Jurisdictional Certification to the Puerto Rico Supreme Court
The District Court again turned to Puer-to Rico’s highest court in its search for an answer to the question of Puerto Rico law that arose in this case. “[Certification offers a federalism benefit to federal courts. Insofar as it allows a state court to determine pertinent issues of state law, certification spares a federal court the difficult chore of determining state law.” Examining the PoweR op Federal Courts To Certify Questions op State Law, 88 Cornell L. Rev. 1672,1697 (2003).
On June 11, 2013, the District Court asked the Puerto Rico Supreme Court: “Do the laws and Constitution of Puerto Rico allow for private residential roads?” (Docket No. 1173.) The District Court reasoned that the question certified was an issue of first impression that relies upon interpreting the laws and Constitution of Puerto Rico. (Docket No. 1173.) The Puer-to Rico Supreme Court accepted this Court’s second request of certification. (Docket No. 1217.)
d. Defendant Municipality of Ponce
Ponce had a history of non-compliance throughout the course of this litigation. Inasmuch, Ponce Municipal Police was ordered in the past to forcibly open gates as a result of its noneompliance. (See Docket Nos. 959; 1042; 1046; 1117; 1118; 1180; 1199; 1211; 1213; 1219.) Eventually, sanctions and attorneys’ fees were imposed against the Municipality of Ponce for its non-compliance. (See Docket Nos. 1263; 1264.)
Ponce eventually filed its action plan with the Court providing a list of gated urbanizations within its bounds. (Docket Nos. 821; 1193.) Ponce’s action plan listed Estancias del Golf Club among the manned gated urbanizations that agreed to comply with court orders “duly notified by Municipal Police Officers of their obligation to grant plaintiffs access in order to effectuate their Constitutional rights.” (Docket No. 1193.)
In earlier representations to the Court, Ponce argued that, three other urbaniza-tions within its bounds had private roads that were not municipal property, therefore these should be excluded from the Court’s injunction. These urbanizations were: Alhambra Court Garden (unmanned), Estancias del Real (manned), and, Brisas del Laurel (unmanned). (See Docket No. 1110.) It is important to note that, EGC was never mentioned among those urbanizations with purported private roads. At that moment, Dorado was raising the similar argument regarding the existence of private roads at Brighton Country Club. Considering that the matter was still under the Court’s consideration, Ponce was given multiple opportunities to brief the private roads issue with supporting legal authority and evidentiary documentation. (Docket 1117.) It failed to do so.
On April 2, 2015, Plaintiffs requested a Temporary Restraining Order (“TRO”) and/or Preliminary Injunction against Ponce and EGC, seeking enforcement of the Court’s injunction. (Docket No. 1516.) In support of their request, Plaintiffs provided a declaration under penalty of perjury of a member of Jehovah’s Witnesses that serves the congregation’s matters in the Municipality of Ponce. (See Docket No. 1516-8.) According to Plaintiffs, Jehovah’s Witnesses were denied access to EGC on five (5) occasions that year. (Docket No. 1516.) Moreover, Plaintiffs asserted that their efforts to communicate with Ponce to solve these issues had been futile. A majority of Plaintiffs’ letters to Ponce notifying the denial of access were never answered by the Municipality. The only response received on behalf of Ponce’s counsel indicated that the Municipality had no obligation to provide access to EGC because said urbanization had private roads and was not a named defendant in the above-captioned case. Id.
On April 6, 2015, the Court issued a TRO directed against Ponce and EGC, ordering them to provide Jehovah’s Witnesses immediate and unfettered access to EGC. Said order contemplated, if necessary, “forcibly removing the gates and/or putting chains on the same to guarantee Jehovah’s Witnesses access.” (Docket No. 1521.) A hearing was held on April 28, 2015, where Estancias del Golf Club appeared represented, by counsel. There, for the first time, it argued that its streets are private in nature, and thus, should be exempt from this Court’s injunction. (Docket No. 1552.) In view of the issue raised, the Court extended the TRO, ordered discovery and briefing as to the issue of the nature of EGC’s streets. Id. This TRO was extended on multiple occasions and ultimately extended sine die, as long as the private roads issue remained sub judice. (Docket Nos. 1554; 1578; 1615; 1659.)
Plaintiffs and Ponce briefed the issue. On September 29, 2015, Plaintiffs filed a Motion for Summary Judgment against the Municipality of Ponce and urbanization EGC arguing the urbanization’s streets are public. (Docket No. 1630.) In turn, the Municipality of Ponce opposed arguing that Plaintiffs’ motion at Docket No. 1630 should be held in abeyance until the residents’ association of EGC and its developer, Ven Lour, were joined as parties. (Docket No. 1635.) Ponce, further, cross-moved for summary judgment seeking that judgment as a matter of law be entered in its favor, arguing that EGC has private streets, and therefore, said urbanization must be deemed exempt from this Court’s injunction. (Docket No. 1635).
Plaintiffs filed a Reply and Response in Opposition to Ponce’s Cross-Motion for Summary Judgment. (Docket No. 1655.) Per leave of Court, Ponce filed its Reply to Plaintiffs’ response in Opposition to Ponce’s Cross-Motion for Summary Judgment. (Docket No. 1682.) Thereafter, Plaintiffs filed a Reply to Ponce’s Opposition and sur-reply to Ponce’s Reply. (Docket No. 1698.) On December 3, 2015, the Court ordered Plaintiffs to formally join the Residents’ Association of EGC as party to this litigation. (See Docket Nos. 1662; 1664; 1686.) Oral arguments were heard on February 17, 2016 at the Luis A, Ferré Federal Courthouse in Ponce. EGC complied and formally appeared in this litigation. (Docket Nos. 1682; 1708.)
II. Standard of Review
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v, Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ. P. 56(a). “An issue is genuine if ‘it may reasonably be resolved in favor of either party at trial, ... and material if it ‘possesses] the capacity to sway the outcome of the litigation under the applicable law.’ ” Iverson v. City Of Boston, 452 F.3d 94, 98 (1st Cir.2006) (alteration in original) (internal citations omitted). The moving party bears the initial- burden of demonstrating the lack of evidence to support the nonmoving partys case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. “The mov-ant must aver an absence of evidence to support the nonmoving party’s case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material.” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994). The non-movant may establish a fact is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). If the Court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the Court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of any and all reasonable inferences. Id. at 255,106 S.Ct. 2505. Moreover, at the summary judgment stage, the Court may not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party’s case rests merely upon “conclusory allegations, improbable inferences, and unsupported speculation.” Forestier Fradera v, Mun. of Mayagüez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v, Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)).
“Cross-motions for summary judgment do not alter the summary judgment standard, but instead simply require [the Court] to determine whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.” Wells Real Estate Inv. Trust II, Inc, v. Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 51 (1st Cir.2010) (citing Adria Int’l Group, Inc, v. Ferré Dev. Inc., 241 F.3d 103, 107 (1st Cir.2001)) (internal quotation marks omitted). Although each motion for summary judgment must be decided on its own merits, each motion need not be considered in a vacuum. Wells Real Estate, 615 F.3d at 51 (quoting P.R. American Ins. Co. v. Rivera-Vázquez, 603 F.3d 125, 133 (1st Cir.2010)) (internal quotation marks omitted); Mercado-Salinas v. Bart Enterprises Int’l, Ltd., 852 F.Supp.2d 208, 213 (D.P.R.2012) on reconsideration in part, 889 F.Supp.2d 265 (D.P.R.2012). “Where, as here, cross-motions for summary judgment are filed simultaneously, or nearly so, the district court ordinarily should consider the two motions at the same time, applying the same standards to each motion.” Wells Real Estate, 615 F.3d at 51 (quoting P.R. American Ins., 603 F.3d at 133) (internal quotation marks omitted).
III. The Arguments
The Court shall proceed to summarize seriatim the arguments presented in each motion.
a. Plaintiffs’ Motion for Summary Judgment and arguments in support (Docket No. 1630.)
Plaintiffs request that judgment as a matter of law be entered in their favor for the following reasons. First, that Estancias del Golf Club’s streets are public. Plaintiffs carve them arguments in support of this assertion as follows: (1) EGC’s streets were transferred to the Municipality on October 2002 by virtue of the Ponce Municipal Legislature’s Resolution No. 73; (2) EGC operates a Controlled Access Law system authorized by the Municipality of Ponce in June 2006, Ordinance No. 81; (3) Permits and Regulations Administration permits were sought to build EGC; (4) municipal funds were sought to build EGC’s infrastructure; (5) the resident’s association does not own the streets; and last; (6) the resident’s association held a “special assembly” on May 30, 2015 to discuss transferring the streets. (Docket No. 1630.)
Second, Plaintiffs argue that Ponce and EGC are subject to this Court’s order and mandatory injunction. In support of their second assertion, they argue that Ponce’s action plan represented that Estancias del Golf Club was included in the action plan. Id.
b. Ponce’s Response to Plaintiffs’ Motion for Summary Judgment and Cross-Motion for Summary Judgment (Docket No. 1635.)
Ponce initially contends that Plaintiffs’ summary judgment motion should be held in abeyance pending the joinder and appearance of Ven Lour and Estancias del Golf Club, as necessary parties, pursuant to Fed. R. Civ. P. 19, for adjudication of the issue of private roads and those at EGC. Id.
Ponce also moved the Court to enter judgment as a matter of law in its favor based on the following arguments: First, the Constitution and laws of Puerto Rico permit the existence of private roads and those of EGC are indeed of such nature. The Puerto Rico Supreme Court, in fact, recognized this state of the law in Watchtower v. Municipality of Dorado, 192 D.P.R. 73 (P.R.2014) (Slip Certified Translation at Docket No. 1559), when answering this Court’s certified question. Moreover, Ponce posits the Supreme Court’s ruling established a difference between roads that are funded with municipal or public funds, and are dedicated to public use vis a vis roads that are paid for with private funds.
Second, Ponce contends that the transfer of streets to Municipality never took place. (Docket No. 1635 at 9.) It posits that the maintenance and repairs of the streets are funded privately by EGC’s residents association and not by the municipality. The residents association funds the maintenance of the streets, but the title of the streets belong the developer, Ven Lour. Id.
Ponce further argues that, under Puerto Rico real property law, ownership of streets of residential .developments is not transferred by the legislative intent of the Municipality. (Docket No. 1635 at 9.) Accordingly, the decisive question before the Court is whether under Puerto Rico law the intention of the Ponce municipal legislature to accept the conveyance of the streets, without the actual deed of transfer and affirmative act of possession, is sufficient to create municipal ownership, therefore bestowing public character to the streets.
Ponce posits that EGC had the intention of transferring streets to the Municipality; however these were never accepted due to inadequate conditions. Thus, the conveyance of the streets has not taken place and as such these are not property of the Municipality. (Docket No. 1635 at 9.) As such, they continue to be private property. Id. More so, Resolution No. 73 conditioned the acquisition of the streets on the Mayor and representatives “to perform the necessary legal acts in the form of a public deed or other public document to actually execute the transfer.” Id. at 11.
c. Plaintiffs Reply to Ponce’s response in Opposition and Plaintiffs Response in Opposition to Ponce’s Motion for Summary Judgment (Docket No. 1655.)
Plaintiffs argue that since EGC failed to oppose Plaintiffs’ Motion for Summary Judgment, Plaintiffs’ materials facts are deemed admitted. (Docket No. 1655 at 6.) Further, Ponce has faded to provide conclusive evidence that EGC’s streets have not been conveyed to the municipality.
d. Ponce’s reply to Plaintiffs’ response in Opposition to Ponce’s MSJ (Docket No. 1682.)
Ponce contends that, in light of the Commonwealth’s Watchtower v. Dorado, public streets “are those that are funded and maintained by the towns themselves and that are dedicated to public use.” (Docket No. 1682.) In response to the argument that EGC’s streets are public regardless of whether the actual transfer took place, Ponce contends that “the imposition of conditions by the Municipality for the approval of the Estancias residential development did not, by itself, convey a public nature to the streets of Estancias.” (Docket No. 1682 at 5.)
e. Plaintiffs’ reply to Ponce’s Opposition and sur-reply to Ponce’s Reply (Docket No. 1698.)
Plaintiffs argue that EGC offers no factual or documentary support of its claim that its streets are ‘private.’ “With the exception of a block quote from an appellate decision regarding the doctrine of laches, the urbanization’s [o]pposition cites no legal authority.” (Docket No. 1698.) Further, Plaintiffs contend that the ‘private streets’ defense is barred by the doctrine of laches. Id. at 3. Plaintiffs reiterate their argument that the Puerto Rico Supreme Court’s ruling did not invalidate statutes, case law and legal presumptions regarding streets and urban developments in Puerto Rico. In addition, Plaintiffs reject Ponce’s argument at Docket No. 1682, to the effect that imposition of conditions by the Municipality barred the conveyance of the streets for public use. (Docket No. 1698.) Plaintiffs contend that Ponce fails to offer legal authority in support of said argument, and that it is inconsistent with the legal framework regarding urban development. Id. “As highlighted in the high court’s decision, it is the prerogative of the State—not of a developer, homeowner, or municipal employee—to determine what constitutes a ‘public purpose’ and what conditions must be fulfilled to engage in urban development.” (Docket No. 1698 at 9 (citing Watchtower, 192 D.P.R. at 96)). Further, Plaintiffs argue that “[t]o hold otherwise, would foment noncompliance with urban planning requirements as it would, in effect, suggest that the conditions imposed by the government are not legally binding and that developers may feel free to disregard these conditions if they so desire.” |d. at 9. Finally, Plaintiffs posit that the Court should rule that EGC has constructive public streets for First Amendment purposes. (Docket No. 1698 at 9) (Emphasis in original).
f. Estancias del Golf Club’s briefs (Docket Nos. 1688; 1712)
EGC joined both Ponce’s motion for summary judgment at Docket No. 1635 and its reply to Plaintiffs’ opposition at Docket No. 1698, arguing that the streets within its bounds have not been transferred to the municipality and, thus, are private property. It also argued against the application of the doctrine of laches. (See Docket Nos. 1688; 1712.)
IV. Relevant Factual Background
a. Plaintiffs’ Statement of Uncontested Facts (Docket No. 1630-1)
Estancias del Golf Club is an urbanization in Ponce, Puerto Rico. (Docket Nos. 1630-1 ¶ 11; 1635-1 ¶ 11). It currently has a controlled access regime operated by a manned gate. Id EGC was developed by Ven Lour Enterprises Inc. (“Ven Lour”). (See Resolution No. 73) (Docket Nos. 1630-1 ¶ 12; 1635-1 ¶ 12.) A summarized account of the permits issued by the Ponce Municipal Legislature and requested by Estanci-as del Golf Club or by Ven Lour during the development stages of the urbanization follows.
In April 1992, the Ponce Municipal Legislature passed Resolution No. 47, endorsing the name “Estancias del Golf Club” for the project upon request by Mr. Lombardo Perez, engineer for the project “as part of APRE requirements to issue the construction permit.” (Docket Nos. 1630-1 ¶ 13; 1630-6.) In addition, the Municipal Legislature ordered that a copy of Resolution No. 47 be sent to the “Naming Commission of Structures and Public Roads of the Commonwealth of Puerto and to the Permits and Regulations Administration (“ARPE” for its Spanish acronym) to take appropriate action.” (Docket No. 1630-1 ¶ 13.)
In April 1997, the Municipal Legislature passed Resolution No. 214, authorizing Ponce to enter into a contract with Ven Lour, for the construction of a storm drainage system for Estancias del Golf Club and its surrounding areas. (Docket No. 1630-1 ¶ 14.) The Municipal Legislature waived the bidding requirements and gave Ven Lour “a credit to be applied to the construction taxes obligations owned by Ven Lour to the Municipality, up to the sum of $100,000.00” as “[i]t is in the best interest of the municipality and the public ... [that] the Municipality be authorized to, while exempt from bidding procedures, directly contract with Ven Lour for construction.” (Docket No. 1630-8.)
On October 14, 2002, the Ponce Municipal Legislature passed Resolution No. 73, authorizing the mayor to accept the transfer of streets in Estancias del Golf Club from Ven Lour. (Docket Nos. 1630-1 ¶ 16; 1635-1 ¶ 15.) The resolution was signed by Mayor Rafael Cordero Santiago the following day. Resolution No. 73 reads as follows:
ADMINISTRATIVE BILL: TO AUTHORIZE THE HONORABLE MAYOR OF PONCE, IN REPRESENTATION OF THE AUTONOMOUS MUNICIPALITY OF PONCE, TO ACCEPT VEN-LOUR ENTERPRISES, INC.’S CONVEYANCE OF STREETS IN THE ESTANCIAS DEL G[0]LF CLUB URBANIZATION OF PONCE, PR; AND FOR OTHER PURPOSES
WHEREAS: VEN LOUR ... developed a housing project known as Urbanization Estancias del G[o]lf Club in Ponce, Puerto Rico;
WHEREAS: VEN LOUR ... has allotted areas in the development project to be designated as streets and has given notice of its intent to transfer the aforementioned to the Autonomous Municipality of Ponce;
(Docket No. 1630-2.) Moreover, it recognized that the municipalities’ permit office “authorized the subdivision of plots to be set aside for streets, by means of Case Number PLG-2001-0035 (97-0000925)” and outlined the names of the streets and plots that were segregated. (Docket Nos. 1630-1 ¶ 16; 1635-1 ¶ 16; 1630-2.) It also certified that the corresponding municipal agency had inspected and endorsed the acceptance of the streets, ‘‘determining that said acceptance of these streets is useful and con venient for public use. ” (Docket No. 1630-2 at 2) (emphasis added).
THEREFORE: BE IT RESOLVED BY THIS HONORABLE MUNICIPAL LEGISLATURE OF PONCE, PUERTO RICO:
SECTION ONE: That the Hon. Rafael Cordero Santiago be authorized, on behalf of the Autonomous Municipality of Ponce, to accept from VEN-LOUR ENTERPRISES, INC. the conveyance of the Streets mentioned in the THIRD WHEREAS of this Resolution. SECTION TWO: The Hon. Rafael Cordero Santiago is authorized as May- or of Ponce or a designated representative to, in the name of and in representation of the Autonomous Municipality of Ponce, appear in all corresponding deeds and in each and every public document necessary to execute the transfer of streets, as authorized by this Resolution.
Id. at 3. On April 6, 2006, the Ponce Municipal Legislature approved and issued a “Building Permit” to the residents association of EGC for the construction of a controlled access system. (Docket Nos. 1630-1 ¶ 17; 1635-1 ¶ 17; 1630-3.) The same date, the Municipal Legislature also approved and issued a “Use Permit” to the residents’ association of EGC for the controlled access system. (Docket Nos. 1630-1 ¶ 19; 1635-1 ¶ 19; 1630-4.)
On June 13, 2006, the Ponce Municipal Legislature passed Ordinance No. 81, (Docket No. 1516-2) granting a petition by a group of residents of EGC to implement a controlled access regime. (Docket Nos. 1630-1 ¶ 18; 1635-1 ¶ 18) (see also Ordinance No. 81, Docket No. 1516-2.) Ordinance No. 81 provides that the Municipality of Ponce issues the controlled access permit for EGC, as per Law No. 81 of August 30, 1991, P.R. Laws Ann. tit. 21, § 4054(p), as amended, also known as the Autonomous Municipalities Act of the Commonwealth of Puerto Rico. Pursuant to said authority delegated by the Commonwealth legislature, Ponce enacted Ordinance Number 45, Series 2002-2003, which adopted the new “[r]egulation authorizing the closure of streets, roads, pathways and walkways; authorizing the sale thereof and granting of permits for the control of vehicular traffic and public use of municipal streets.” (Docket No. 1516-2 at 1.) It further provides that after reviewing the residents’ petition and the report rendered by the corresponding committee, “this legislature, pursuant to Ordinance No. 45, Series 2002-2003, accepts the recommendation made by the Commission on Closures of Streets, Pathways and Roadways regarding the underlying petition to this Ordinance, and authorizes the access control requested by the Estancias del Golf Club Development of Ponce.” (Docket No. 1516-2 at 2.)
IT IS HEREBY ORDERED BY THIS MUNICIPAL LEGISLATURE OF PONCE, PUERTO RICO:
SECTION ONE: Accept and adopt the favorable recommendation made by the Commission on Closures of Streets, Pathways and Roadways of the Autonomous Municipality of Ponce with respect to the petition for access control submitted by the Estancias del Golf Club Development, Barrio Magueyes of Ponce.
SECTION TWO: The Board of Directors of the Estancias del Golf Club Development shall guarantee equal access at all times to all residents of the community, including those opposing access control.
SECTION THREE: The Board of Directors of the Estancias del Golf Club Development shall initiate proceedings before the Permit Office for the Autonomous Municipality of Ponce to request the closure and facilities for access control thereof.
SECTION FOUR: The Board of Directors of the Estancias del Golf Club Development shall coordinate access to the development with the various state, federal and/or local government agencies so that they can provide the appropriate services.
SECTION FIVE: The Commission on Closures of Streets, Pathways and Roadways of the Autonomous Municipality of Ponce is hereby ordered to give written notification of the Municipal Legislature’s decision and send a copy of said Ordinance to the Department of Infrastructure, Environment and Transportation of the Autonomous Municipality of Ponce.
(Docket No. 1516-2 at 2.)
On May 30, 2015, the residents’ association of EGC convened in a Special Session to discuss the acquisition or transfer of its streets and sidewalks. (Docket Nos. 1630-1 ¶ 22; 1635-1 ¶22.) EGC’s August 2015 News Bulletin number two stated the following:
A special session took place last May 30th, 2015 to determine the future of our streets and sidewalks. It was attended by 53 members and was led by Attorney Anselmo Irizarry, who serves as our Association’s legal representative before federal forum. At this meeting, current documents were submitted and discussed regarding our situation. The advantages and disadvantages of the transfer process to the municipality were also discussed. The following motions were adopted by a majority vote at the meeting:
1) Authority given to the current board to proceed with the transfer process from Ven Lour to the [Residents’] Association;
2) The streets and sidewalks are not to be transferred to the Autonomous Municipality of Ponce. The aforementioned should belong to the [residents’ association,
(Docket Nos. 1630-1 ¶ 23; 1635-1 ¶23.) On September 9, 2015, Ponce filed with the Court a copy of Resolution No. 73—the resolution approved by the Municipal Legislature in October 2002 authorizing the Mayor to accept transfer of the streets in EGC from Ven Lour to the Municipality. (Docket Nos. 1630-1 ¶¶ 23-24; 1635-1 ¶¶23-24.)
Ponce responded to Plaintiffs’ statement of facts, admitting most of Plaintiffs’ proposed facts and raising several objections under Fed. R. Evm pule 402. (Docket No. 1635-1 part A.) Ponce objected to several of Plaintiffs’ proposed statements, arguing “[a]ny representation made to this Honorable Court before the opinion of the Puer-to Rico Supreme Court regarding the nature of streets in Puerto Rico was made with the understanding of the law at that specific moment in time.” (Docket No. 1635-1 ¶¶ 7-10.)
b. Ponce’s Statement of uncontested facts in support of summary judgment (“Ponce’s SUF”) (Docket No. 1635-1 Part B).
EGC is inscribed in the Property Registry as Parcel No. 6050, folio 81, volume 905 from Section II of the Municipality of Ponce. (Ponce’s SUF, Docket Nos. 1635-1 at 14 ¶ 1; 1655-1 at 2 ¶ 1.) The inscription lists Ven Lour as title holder of the property. Id. In support, Ponce offers a certification of the Property Registry (Docket No. 1654-1) for a parcel of land identified as Parcel No. 6050, folio 81, volume 905 from the Municipality of Ponce which includes restrictive covenants imposed by Ven Lour. (Docket No. 1635-1 ¶ 2.)
Said restrictive covenants are intended for, but not limited to, the residents’ association of EGC. (Ponce’s SUF, Docket No. 1635-1 ¶3.) Amendment six of the restrictive covenant provides that:
AMENDMENT SIX: That in the thirteenth (13) paragraph FIRST (A) of page eleven pertaining to Easement in equity and/or restrictive conditions, First (A) reads: “All of the streets, roads and accesses to be built on the principal shall be for the use and benefit of all of the residents and may not be used for the particular benefit of any of these. However VEN LOUR ... or any other natural person or legal entity designated by them, shall have the right to use these streets within the scope of the entrepreneurial purposes and interests of VEN LOUR ... to use the streets to gain access for future developments in the remainders of the principal properties and/or for the real estate properties which border with the Project object of these restrictive conditions. VEN LOUR .... Shall retain the right to grant the right in turn to third natural parties or legal entities to gain access to the bordering plots of land through the streets of the Estancias del Golf Club project.
None of the rights which VEN LOUR .... Reserves for itself may be varied by the [residents’ association] nor by any other entity formed by the title holders or homeowners referenced herein, nor by any other person. Eliminate the underlined text.
(Ponce’s SUF, Docket Nos. 1635-1 ¶4; 1654-1 at 10-11) (emphasis in original). On September 25, 2012, Engineer John Garnsey Garcia wrote a letter to Mrs. Maria Torres, Administrator of the Municipal Public Works Department regarding the conditions of the streets in ECG. (Docket Nos. 1635-1 ¶ 6; 1655-1 ¶ 6; 1654-3.) In his letter, Mr. Garnsey Garcia concludes that the “actual condition that prevails after the partial reparation of the streets impedes that the Autonomous Municipality accept them for conservation and maintenance.” (Docket Nos. 1635-1 ¶ 7; 1655-1 ¶ 7; 1654-3.) In July 2012, the residents of EGC sent a letter to Honorable María Meléndez Altieri, Mayor of Ponce, requesting the transfer of the streets and sidewalks of ECG to the Municipality of Ponce. (Docket Nos. 1635-1 ¶ 8; 1655-1 ¶8.) The same stated that their petition had been denied by Engineer Garnsey Garcia on multiple occasions. (Docket Nos. 1635-1 ¶ 9; 1655-1 ¶ 9.) The letter further stated that the Residents Association of ECG has been maintaining the streets in the best condition using the monies from its maintenance fee. (Ponce’s SUF, Docket No. 1635-1 ¶ 10.) Finally, Ponce posits that the residents’ association of EGC is responsible for the repairs of its streets and sidewalks and pays for such maintenance with its private funds. (Ponce’s SUF, Docket No. 1635-1 ¶ 11.) In support of this contention, Ponce provides a statement under penalty of perjury by Mr. Emilio A. Ruiz De Jesús, President of the residents’ association of EGC since March 2, 2015. (See Docket No. 1635-5.)
c. Plaintiffs’ Opposing Statement of Material Facts in Opposition to Ponce’s Motion for Summary Judgment (“Plaintiffs’ Opposing SUF”) (Docket No. 1655-1 Part II.)
On June 29, 1999, the Permit Office of the Municipality of Ponce approved a Resolution titled ‘Approval of Partial Parceling of Lots for Estancias de Golf Club for Case Number PLG 990035 (97-0000925)’ (hereinafter “Resolution June 1999”). (Plaintiffs’ Opposing SUF ¶ 1; Docket Nos. 1655-3 at 2-4). According to the text of the Resolution, the Department of Public Works and Environmental Conservation of Ponce inspected Streets C-3, C-7, and C-8 and deemed these streets acceptable. (Plaintiffs’ Opposing SUF ¶ 2.) The resolution reads as follows:
By resolution of April 1, 1997, the Director of the Permit Office for the Municipality of Ponce has approved [...] the registration plan for the Urbanization Estancias del Golf Club.
The owners are hereby advised to comply with the conditions below pri- or to the Permit Office’s evaluation of the remaining 25 % of the residential units in this project: 1) Submit a certified copy of the deeds of transfer of the streets pertaining to the project in behalf of the Municipality of Ponce. Streets with signs indicating C-3, C-7, C-8, Avenida Principal, Exterior and Interior that provide access to the proposed plots shall be public in nature once the transfer to the Municipality of Ponce takes effect by the corresponding public deed.
“The interested parties shall file a certified copy of this resolution, the registration plan approved on April 1, 1997, and any other necessary documentation, -with the corresponding Property Registry Office in order that said official may proceed in registering the authorized parceling of lots in this case.
(Docket Nos. 1655-1, Plaintiffs’ Opposing SUF ¶ 3; 1655-3.)
On January 8, 2002, the Permit Office of the Municipality of Ponce approved another Resolution entitled ‘Resolution Authorizing the Partial Parceling of Lots for the Streets of the Estancias del Golf Club.’ It provides the following (Docket No. 1655-1, Plaintiffs’ Opposing SUF ¶ 4):
a) The land parcel for Estancias del Golf Club “is entered in the [Property] Registry of Ponce, Section II, Folio 11 of Volume 709 as Farm Number 6050.
b) Ven-Lour through Isidro Barros Botello, an engineer, under case number PLG-2001-0035 (97-0000925), has submitted to the Permit Office of the Autonomous Municipality of Ponce for its consideration of an application for the parceling of streets of the Estanci-as del Golf Club Development.
c) .,. the Director of the Permit Office for the Autonomous Municipality of Ponce, AUTHORIZES the partial parceling of streets of the Estancias del Golf Club Development[.]
It is hereby stated that the owners shall comply with the conditions below prior to the awarding of any future permit: [... ]
c) Submit a certified copy of the deeds of transfer of the streets pertaining to the project in behalf of the Municipality of Ponce[;]
d) Submit documents to come up with a mechanism for access control
of motor vehicles and public use of the project[;] [...]
g) The remaining streets of the project shall be parceled and a certified copy of the deeds of transfer of the aforementioned should be submitted in behalf of the Municipality of Ponce.
d) Those requirements and/or conditions set forth in unaltered, previous resolutions in this report will be kept in full force and effect. The interested parties shall file a certified copy of this resolution, approved registration plan, and any other necessary documentation, with the Property Registry] Office.
(Docket Nos. 1655-1, Plaintiffs’ Opposing SUF ¶ 5; 1655-5.)
On February 29, 2008, the Permit Office of the Municipality of Ponce approved yet another Resolution entitled ‘Resolution Authorizing the Partial Parceling of Lots for the Streets of Estancias del Golf Club (Docket No. 1655-1, Plaintiffs’ Opposing SUF ¶ 6) which provided the following:
Partial parceling of most of the Estanci-as de Golf Club Residential Development’s streets was approved under case number PLG-2001-0035 (97-0000925). At this time, some of the streets were not included due to the fact that they were not yet built or were just partially built. Now, [Ven-Lour] through Engineer Isidro Barros Botello, under case PPI 2007-0035 (97-0000024), has submitted to the Permit Office of the Autonomous Municipality of Ponce for its consideration, an application for the parceling of the remainder of the streets in the Es-tancias del Golf Club Development, and a remnant set aside as Green Area Number 1, in accordance with the submitted plan.”
“The Ministry of Infrastructure, Environment, and Transportation, through its engineering division, examined the documents and plans submitted for the project under this caption and after inspecting the repair work performed on the streets, sidewalks and curbs, decided to give its final approval as it relates exclusively to the streets located within the residential development.”
“Repairs to Paseo Ruth Fernandez, where work relating to the replacement of the main raw water pipe is being performed as required by the Aqueduct and Sewer Authority, and as a condition set by this agency for this project, are still pending.”
We would like to emphasize that final approval of the streets and storm water shall be achieved after the deed for public use is brought forth, which is subject to completing the previously mentioned work.
“[T]he Deputy Director of the Permit Office of the Autonomous Municipality of Ponce, AUTHORIZES the partial parceling of D-2, D-3, D-4, D-5 and D-7 streets, located in the Urbanization Estancias del Golf Club[.]”
(Docket Nos. 1655-1, Plaintiffs’ Opposing SUF ¶ 7; 1655-7) (Emphasis in original).
V. Applicable Law
a. The Commonwealth’s Controlled Access Law
The Controlled Access Law, Puerto Rico Law 21 of May 20, 1987, (“Controlled Access Law”) P.R. Laws Ann. tit. 23, § 64 et seq., enacted in 1987, created a regime to allow a residents association to control the access and vehicular traffic in public residential streets. The purpose of this legislation was "to authorize housing developments and communities to control vehicular access to, and the public use of their residential streets. The main purpose of this act is to provide our citizens with an additional mechanism to fight crime, thus encouraging their active participation in said fight.” Caquías v. Asoc. Res. Man-siones Río Piedras, 134 P.R. 181, 186, Offic. Trans. (P.R.1993). “The statute also [sought] to improve the security and peace of our communities so that the neighbors may engage in healthy community coexistence and interaction.” Id. Since its enactment, the Controlled Access Law has sparked much debate.
The public and private housing gates of Puerto Rico are visual symbols of a historical trend that has lasted for centuries within unequal communities around the globe. Gates have been an integral part of city design from Rome to Britain to the colonies of the New World .... Most have been erected as private enclaves, in the name of protection from crime, locking out an increasingly complex city.... In private communities, gating arranged by insiders keeps others out.
ZAIRE Zenit Dinzey-Flores, Locked in, Locked out-Gated Communities in a Puesto Rican City 9-10 (University of Pennsylvania Press 2013).
This legislation allows municipalities to issue permits for controlled access regimes for traffic control in public streets. See Watchtower v. Sagardía de Jesús, 634 F.3d at 7 (1st Cir.2011). To obtain a permit, the residential community must create a residents association; propose a plan describing the permanent barriers and access arrangements; file a petition supported by at least three-quarters of the residential homeowners; and, assume the costs of installing and operating the plan. In January of 1989, the administration of Governor Rafael Hernández Colón enacted Regulation No. 20 titled “Regulation for Traffic Control and Public Use of Local Streets;” (Regulation No. 8843, January 5, 1989). Said regulation is still in effect today. Regulation No. 20 provides for the inscription of these permits and municipal resolutions as a lien in the Property Registry. See Luis Riveiía Rivera, DERECHO Re-gistral Inmobiliario Puertorriqueño 444 (Jurídica Editores, 3rd ed. 2012). Likewise, the statute provides remedies for the imposition of sanctions or permit revocation for non-compliance or infractions with the provisions of the Controlled Access Law.
Public streets within an urbanization with a controlled access regime, remain public property despite their enclosure. The Puerto Rico Supreme Court acknowledged this in Caquias, where it addressed whether the implementation of a Controlled Access regime had the effect of privatizing public streets.
The concept of access control implies that the public nature of residential streets must be preserved, while allowing residents to establish the means to control vehicular traffic and public use, thus watching after their own security and promoting a favorable environment for community coexistence.
The delicate public policy behind the mentioned statute requires a harmonization between the residents’ interest in their own security and welfare and the property rights and freedom of other persons, as well as those of residents opposed to access control or to its terms. Act 21, as amended, as well as the Puer-to Rico Planning Board regulations and its implementing municipal ordinances, seek to harmonize these interests.
Caquias, 134 P.R. at 187 Offic. Trans. (P.R. 1993).
The Puerto Rico Supreme Court has also determined that the Controlled Access Law is constitutional “as long as in its application non-resident citizens are not restricted indiscriminately from accessing the public roads of the communities .... ” Asociación Pro Control de Accesso Calle Maracaibo, Inc, v. Cardona Rodriguez, 144 P.R. 1, Offic. Trans, at 27-28 (P.R.1997). Due to the public nature of these streets, they cannot be closed to the public, especially when those closures impede constitutionally protected activities such as freely exercising one’s religious beliefs. See Maracaibo, 144 P.R. Dec. at 38; Nieves v. A.M. Contractors, Inc., 166 P.R. Dec. 399, Offic. Trans. (P.R.2005). In Maracaibo, the Puerto Rico Supreme Court reasoned that:
By constituting a delegation of power, the association will limit itself to the exercise of the delegated power. At the same time, the fact that the Access Control Act constitutes a delegation of State power implies that an individual or an association cannot, under the protection of a private conduct veil, jeopardize the individual rights guaranteed by the Constitution nor cause damage or nuisance to others through the exercise of the delegated power. Insofar as to the usage of public property is being controlled, the authority granted to residents’ associations is defined by the same parameters that limit the actions of the State. Consequently, if any regulation approved by any residents’ association violates constitutionally protected rights, the same loill be considered null and void.
144 P.R. at 27-8 (emphasis added). Thus, it is patently clear that the Controlled Access Law does not alter the public nature of the streets. In Caquias, the Puerto Rico Supreme Court indeed recognized this:
The [Controlled Access Law] neither bars nor prohibits the public use of streets and sidewalks; rather, it allows some degree of control over its uses. The statute does not transfer or delegate to the residents the maintenance of the community’s streets, sidewalks, or parks; on the contrary, it acknowledges the duty of public agencies and officers to continue providing essential services to the community. This statute does not exactly seek to privatize streets and sidewalks.
134 P.R. at 243. The Caquias ruling was recently reaffirmed in Watchtower v. Do-rado:
We thus reiterate that the Access Control Act did not have the effect of privatizing these public streets, since that was not a result of that legislation. Note that the Access Control Act allowed municipalities to grant permits to control motor vehicle traffic and the public use of public roads. [P.R. Laws Ann. tit. 23, § 64.] There is therefore, no question that public streets funded by the State are publicly owned and that the Access Control Act did not change, nor does it change, that legal situation.
192 P.R. at 93 n. 22; Slip Trans. Op., at 14 (emphasis added). As will be discussed later on, the Puerto Rico Supreme Court has never overturned Caquias or Maracaibo.
b. Watchtower v. Municipality of Dorado, 192 D.P.R. 73 (P.R.2014)
“Do the laws and Constitution of Puerto Rico allow for private residential roads?” (Docket Nos. 1173.) In Watchtower v. Municipality of Dorado, the Puerto Rico Supreme Court answered in the affirmative this Court’s certified question of law, holding that “the current law [in Puerto Rico] contemplates the existence of private residential streets.” 192 D.P.R. 73, 97 (P.R.2014), Slip Trans. Op., 1559-1 at 17. The streets contemplated in Article 256 of the Civil Code, P.R. Laws Ann. tit. 31, § 1025, are of public nature as they “are funded and maintained by the towns themselves and that are dedicated to public use.” Watchtower, at 96, Slip Trans. Op., at 18. Notwithstanding, private roads can exist under Puerto Rico law, so long as these that fall outside the scope of Article 256.
After a review of legal rules and doctrinal sources, we see that while Article 256 of the Civil Code of Puerto Rico, indicates that local roads and streets are publicly owned, a logical interpretation of that principle leads us to conclude that this is mentioned in the context of their being maintained or funded by the State. As already stated, Article 256 of the Civil Code, provides that public use property includes “roads and ... streets ... funded by the towns themselves or with funds from the treasury of Puerto Rico.” We could thus say that all streets in Puerto Rico that fall under this “specific category” established by law are public domain property, and therefore, cannot be private property. We therefore hold that residential streets that fall outside of the provisions of Article 256 are not so deemed, pursuant to the interpretation given to this article.
Id. at 96, Slip Trans. Op., at 17. “[T]he current legal framework does not require that all residential roadways be dedicated to public use,” referencing Puerto Rico Law 161 of December 1, 2009, known as the “Puerto Rico Permit Process Reform Act” P.R. LAWS ANN. tit. 23, §§ 9011, et seq. Watchtower, at 96 n. 23, Slip Trans. Op., at 18. “Therefore, streets that are not transferred to a government entity l’emain outside of the scope of Article 256 of the Civil Code, not because of the holder of title, but because they do not fall under the specific type of streets listed therein.” Id.
This Court now must decide how the Puerto Rico Supreme Court’s ruling applies to the controversy at bar. The parties have drastically opposing viewpoints as to the Supreme Court’s holding, particularly as to the requirements that should be used to determine the nature of streets. Plaintiffs’ principal argument is that “while the Puerto Rico Supreme Court recognized that private residential streets may exist, it did not invalidate all legal presumptions concerning the nature of streets.” (Docket Nó. 1665 at 10.) Plaintiffs posit the Puerto Rico Supreme Court “reaffirmed that urban development in Puerto Rico is subject to compliance with all applicable statutes and regulations and that it is the State’s prerogative to determine what constitutes a public purpose.” Id. Consequently, Ponce’s claim that the Puerto Rico Supreme Court’s decision converted the streets in EGC into “private” ones, is misplaced. Rather, the streets in EGC have been public, since inception, by virtue of law.
Ponce proposes a very different outcome. It contends that the Puerto Rico Supreme Court ruling produced “a substantial change in law” that is now part of applicable substantive Commonwealth law. (Docket No. 1682.) Because now, .private roads can exist in Puerto Rico, Ponce adduces that it can adequately raise its argument now that it “ha[s] the criteria to adequately ascertain whether a street is private or not.” (Docket No. 1682 at 3.) In light of the alleged change in law, Ponce contends the streets at EGC are private because these do not meet the public street criteria. (Docket No. 1688.)
i. Adjudication on the merits is a matter for the District Court
As a threshold matter, is Court is mindful that the Puerto Rico Supreme Court’s ruling upon certification did not adjudicate the controversy regarding the nature of the streets of Brighton Country Club, nor the nature of the streets of any other gated community. More so, the Puerto Rico Supreme Court did not adjudicate the validity of the permits issued by Dorado. “[T]he agreements between the Municipality of Dorado and the urbanization’s developers are not relevant to the particular decision before us. That is beyond our adjudicatory role, since we address only whether our laws allow this type of property to exist in a private setting.” Watchtower, 192 D.P.R. at 83 n. 11, Slip Trans. Op., at 6 n. 11. To determine the nature of the streets at EGC, the Court must hence evaluate the permits issued by the municipality. “[T]he permit that the municipality grants must be interpreted and enforced according to the public nature of those roads.” See Watchtower v. Sagardía de Jesús, 634 F.3d at 10 (quoting Maracaibo, 144 P.R. at 28).
ii Legal framework in effect when the Puerto Rico Supreme Couri addressed the issue of private roads
Plaintiffs seek that this Court determine that although as of now ean be privately owned, the Commonwealth Supreme Court “did not hold that all residential streets in Puerto Rico are private nor did its ruling alter the status of pre-existing streets.” (Docket No, 1655 at 7.) The Court agrees. The laws and regulations analyzed by Puerto Rico Supreme Court upon certification were not in effect at the time BBC and EGC were developed, nor at the time the permits were issued by the respective municipalities. Moreover, Plaintiffs are correct in the Puerto Rico Supreme Court ruling did not invalidate statutes and regulations, nor overrule any existing jurisprudence regarding gated developments in Puerto Rico.
We can thereby logically conclude that a street is public because it has become the property of the government entity pursuant to the applicable legislation or urban regulation. Consequently, a street is public because it is under the domain and control of the State, regardless of the procedure whereby it was acquired. One of the ways in which the State can acquire a street is by requiring that streets be ceded to the state, to be dedicated to public use, as a condition for the approval of residential property. In Watchtower, we acknowledged that the current legal system to date does not require that all residential roads be transferred to the municipalities for the purpose of dedicating them to public use, making reference to the regulations adopted under [Law] No. 161-2009.
Watchtower v. Municipality of Dorado, 192 D.P.R. 339, 346 (P.R.2015), Slip Trans. Op., Docket No. 1559-6 at 7 (denying reconsideration) (Rivera García, J., concurring vote) (emphasis added). In other words, the Puerto Rico Supreme Court’s discussion did not address whether the legal framework in effect at the time BCC and EGC were developed required that residential roads be transferred to the municipalities for purposes of dedicating them to public use.
in. Laws and Regulations in effect during the Watchtower v. Municipality of Dorado ruling
The Puerto Rico Supreme Court interpreted the Puerto Rico laws and regulations regarding urban development and the Controlled Access Law as these were in effect between June 2013 and November 2014, when it addressed the certified issue. The Puerto Rico “Permit Management Office” (Spanish acronym “OGPe”) was at that time, and still is, the agency in charge of regulating and issuing permits for land use and development. OGPe was created by Puerto Rico Law 161 of December 1, 2009, known as the “Puerto Rico Permit Process Reform Act,” P.R. Laws Ann. tit. 23, §§ 9011 et seq. By virtue of Law 161, the Planning Board enacted Regulation No. 31, “Joint Regulation for Permits for Construction Work and Land Use” (Regulation No. 7951, November 2010) (Appendix 1 to this Opinion). This regulation is intended “to itemize the integrated permit system related to the development and use of lands, in accordance to the public policy outlined in Law 161, by providing clear, objective and uniform standards for the expeditious and efficient management of procedures. It consolidates in a single place all of the applicable rules, following a logical order and avoiding unnecessary duplications.” (Regulation No. 7951, Ch. 3, Rule 3.2.) Said regulation established the requirements for permits for residential urban developments, control access and vehicular traffic in residential streets, as provided by the Controlled Access Law. (Regulation No. 7951, Ch. 41.)
Planning Board Regulation No. 31 was subsequently amended by “Amendments to the Joint Regulations for Permits for Construction Work and Land Use (Joint Regulations), Planning Regulations No. 31” (Regulation No. 8068, October 2011) which revised certain provisions pertaining to residential urban developments. (Appendix 2 to this Opinion). As of October 2011, access is defined as “[p]ublic or private thoroughfare towards which the front of a lot or property is facing, which acts as the entrance or exit to the lot or property or body of water, for pedestrians, vehicles or both.” (Regulation No. 8068, Ch. 4) (Emphasis added). Moreover, in regards to land use for residential urban developments, Regulation 31 provides:
Chapter 17: Residential Urban Developments
General Provisions:
The purpose of t