Indecopi declares the reduction of land uses in La Molina an illegal bureaucratic barrier and imposes its non-application with general effects (Resolution 0345-2026/SEL-INDECOPI)

1. Litigation Background

The conflict originated on February 26, 2025, when the company Inversiones 3F S.A.C. filed a complaint with the Commission for the Elimination of Bureaucratic Barriers of Indecopi against the MML and the District Municipality of La Molina. The complainant questioned the imposition of prohibitions to develop various economic activities in a property located on Av. La Molina with zoning Zonal Commerce (CZ). These restrictions were materialized through Annex 3 of Ordinance 1661-MML (which approved the updating of the zoning and use index in La Molina) and in the Certificate of Urban and Building Parameters issued in May 2024. Through this rule, the municipalities classified as non-compliant commercial drafts that previously had the condition of compliant under the previous Ordinance 1144. In the first instance, through Resolution 0337-2025/CEB-INDECOPI of August 22, 2025, the Commission declared the illegality of the prohibition of sales of civil engineering equipment and rental of construction and demolition equipment equipped with operators, a decision that was appealed by both the MML and the district commune alleging their constitutional autonomy in terms of zoning. 2. Rationale for the decision

In resolving the appeal, the Specialized Chamber established a key criterion regarding the scope of municipal autonomy and the urban legality block:

The administrative court found that section 21 of Ordinance 1862-MML (as amended by Ordinance 2586) expressly provides that zoning comprehensive readjustment processes or specific changes may not fix ratings less than the type of area or reductions to the level of use that the properties currently have. By downgrading the drafts to non-compliant, the MML and the Municipality of La Molina violated their own hierarchically superior regulatory framework and the principle of legality of the administrative procedure. Faced with the argument of the municipalities about their exclusive competence to plan urban development (Arts. 194 and 195 of the Constitution and Law No. 27972 - Organic Law of Municipalities), the Indecopi recalled that municipal autonomy is relative and must be exercised subject to the Constitution and the laws. The member ratified that, in accordance with Legislative Decree 1256 (Law on the Prevention and Elimination of Bureaucratic Barriers), the Commission and the Chamber have full competence to evaluate the legality and reasonableness of municipal administrative acts or provisions that restrict access or permanence in the market. 3. Partial nullity due to omissive incongruence

A determining procedural aspect of the resolution lies in the declaration of partial nullity of the decision of admission at first instance (Resolution 0343-2025/STCEB-INDECOPI). The Chamber noted that the Commission incurred an omission of pronouncement (omissive incongruence) by not having evaluated the totality of the economic activities of the Ordinance 1144 use index that were eliminated by Ordinance 1661-MML. By violating numeral 5.4 of article 5 and numeral 1.2 of article IV of the Preliminary Title of the TUO of Law 27444 (LPAG) on due procedure, the Chamber ordered to return the file to the first instance to evaluate the admission for processing of the complaint regarding the omitted drafts. 4. Erga Omnes effects and corrective measures

Having determined the illegality of the bureaucratic barriers contained in a rule of general scope (Ordinance 1661-MML), the Specialized Chamber applied article 8 of Legislative Decree 1256 and ordered:

Inapplication with general effects (erga omnes): Provide for the non-application of trade prohibitions declared illegal in favor of all economic agents and citizens in general. Official publication: Order the publication of an extract of the resolution in the Separata de Normas Legales of the official newspaper El Peruano and its full text on the Indecopi information portal. Mandate of information under warning: Require the MML and the District Municipality of La Molina to inform the administrators about the non-application of the barriers within a period of 5 business days and inform Indecopi about the measures adopted within a maximum period of one month, under warning of sanction for non-compliance. Valuation for real estate and commercial sector

This pronouncement sets an indispensable precedent for real estate developers and owners in Metropolitan Lima. The Indecopi decision reconfirms that local governments cannot arbitrarily cut commercial uses acquired under previous zoning schemes, guaranteeing legal certainty in real estate and commercial investments.