Ecuador Constitutional Court Case: Chibunga Urban Park Ordinance of 1997

Summary

In 2021, the Constitutional Court of Ecuador rejected a public action lawsuit for unconstitutionality filed against Ordinance No. 5 of 1997, issued by the city of Riobamba, which correspond to the land reserve of Chibunga Urban Park. Two decades later, a resident filed a lawsuit challenging the constitutionality of Ordinance No. 5. The Constitutional Court admitted the case, and considered among other things, whether the Chibunga River has rights and must be recognized as a person and a victim.

Background
On October 8, 1997, the Riobamba Municipal Council issued Ordinance No. 5, which established certain areas designated for land reserve for the development of the “Chibunga Urban Park”. The Ordinance states that “Until this land reserve is developed as a recreational facility, only uses related to agriculture, forestry, and livestock activities are permitted. This rule will also apply to urban parks, Las Habras and Galapagos”

On October 11 2016, Julio Miguel Lozada Basantes (the plaintiff) filed a lawsuit, arguing that the land reserve, where his property is located, has been maintained for more than 20 years and “the Municipality has not taken any action, implemented any public policy, or executed any plan, project, or infrastructure to establish the reserve.” He argued that “his property has been affected because he cannot sell it or build on it, nor has he been provided with basic services; that, in fact, the Municipality has no plans to carry out any work” and it has failed to fulfill its responsibilities related to the implementation of the land-use plan, specifically regarding the area surrounding Chibunga Park.

The City of Riobamba stated that the plaintiff’s property is located in a planning area and corresponds to a non-urbanizable surface, because it is situated within the protection zone of the Chibunga River. This area, due to its topographical limitations and environmental value, was considered a soil reserve zone and designated for recreational facilities, and that only activities related to agriculture, forestry, and livestock activities were permitted.

In 2020, new members of the Constitutional Court took office. Judge Ramiro Avila Santamaría assumed jurisdiction over the case and convened a public hearing, which took place on September 21. The Court received amici curiae briefs from Esperanza Martínez Yánez and Marco Alejandro Ruiz Salgado, who argued that the Chibunga River must be recognized as a person, a victim, and a subject of reparation because it possesses rights, and that the Municipality of Riobamba, as guarantor of said rights, has not protected them.

Although the court rejected the public action, in its ruling, it stated that the activities of property owners should fulfill constitutional purposes, such as guaranteeing equitable access to the rights of buen vivir (for example: property, housing, education, health, recreation); while the environmental function consists of “respecting the rights of nature, preserving a healthy environment and using natural resources sustainably.”

“In short, it can be emphasized that, according to the Ecuadorian constitutional framework, the right to property is not an absolute right, and its exercise can be reasonably limited or conditioned by its social and/or environmental function, through the constitutional and legal prerogative conferred upon decentralized autonomous municipal governments, either by means of expropriation of property or by regulating land use and occupation.”

It also urged the city of Riobamba to pay special attention within the framework of its legal and constitutional powers to the adoption of measures that may be necessary to safeguard the integrity of the ecological flows associated with the Chibunga River.