The opening of the listing process for Jardim Alfomares, in Alto da Boa Vista, south of São Paulo, in 2020, does not seem to have been enough to pacify the issue once and for all. Viver Incorporadora e Construtora, owner of the land with 63,000 m² of Atlantic forest, has the right to proceed with the project and, consequently, to clear the vegetation, according to a new decision by the São Paulo Courts.
In the new chapter of the decades of disputes over the area, judge Josué Vilela Pimentel, from the 8th court of São Paulo’s public treasury, stated that “new obstacles and obstacles opposed by the municipality”, such as fines and the suspension of the work, characterize ” disobedience to the court order, deserving action that discourages it, in order to guarantee the rights of the enforcers”.
The magistrate asks the city to “stop creating obstacles to the implementation of the enterprise”.
Pimentel, in his decision, does not mention the registration process opened at the end of 2020, unanimously in Conpresp (Municipal Council for the Preservation of Historic, Cultural and Environmental Heritage).
The Public Ministry of São Paulo has already filed an appeal against the decision.
“It is common for a citizen to obtain a demolition permit and the next day the location will be opened for demolition and, there is no dispute in this regard, there is no way for him to invoke the right to demolish. It is the same situation in the present case” , says the Public Ministry in the appeal.
“The magistrate cannot, without due legal process, disregard a decision to open the registration process.”
Wanted by sheet, Viver Incorporadora states that the Court “recognized the validity of the administrative process and the licenses granted to continue the project at the site”.
According to the construction company, the project that was approved nearly two decades ago provided for the maintenance of 23 thousand m² of green area, and the use of another 40 thousand m² for construction.
“In addition, the company planted more than 5 thousand seedlings of standard Depave species, delivered more than 12 thousand arboreal specimens to the Municipal Nursery Manequinho Lopes and converted around 13 thousand tree seedlings into renovation and expansion works for the school. Ibirapuera Park astrophysics,” says the company, in a statement.
Despite the reopening of the legal dispute, there is another avenue of resolution under consideration: the transfer of the right to build.
In a post on social networks, after being quoted by the SOS Jardim Alfomares association, which defends the preservation of the area, the mayor of São Paulo, Ricardo Nunes (MDB), stated that it is necessary to make “a dialogue with the entrepreneur and, an option, offer constructive potential”. “My will is on this path,” he wrote.
Nunes refers to a transfer of the right to build, which, in general terms, means that the contractor would not carry out the construction of a project in an area with urban restrictions, but would transfer this construction potential to another place, which could be used.
The transfer of construction potential was used, for example, in the process to create the Augusta park, in which the builders donated the area and handed over the park in exchange for construction potential in another part of the city.
Viver Incorporadora has already approached the city hall, in May of this year, in search of an agreement. The company says it maintains “frequent dialogue with the City Hall, neighborhood associations and the Public Ministry” about the possibility of transferring construction potential.
Residents of the region will make a demonstration next Sunday (5), for the protection of the area, seeking the city hall’s attention to the matter.
In addition to the action in question, there is another action in the STJ (Superior Court of Justice) that questions the implementation of the project in the Atlantic Forest area in the middle of São Paulo.
“I believe that, on appeal, this decision will not prevail”, says Glaucia Savin, licensed president of the Environmental Commission of the OAB/SP. For her, this will happen because the judge disregarded the new fact about the area, which is the opening of the listing process.
According to Savin, this court decision has the potential to put the green area at risk, considering that the construction company could rely on the decision to act on the spot.
“We’ve already seen other cases like this here in SP. When the entrepreneur sees himself under threat of toppling, he creates a fait accompli [como a derrubada da vegetação na propriedade]”, says the lawyer specializing in the environmental area.
Despite these episodes, she warns, just opening the registration process is enough to protect the area, until there is a definitive decision on whether or not to preserve the site.
A technical opinion from the Municipal Secretariat for Green and the Environment points out that, in Jardim Alfomares, there are “threatened species” and “migratory species” from the Atlantic Forest.
During the technical visit, there was a high level of fauna sightings, which would indicate that the area plays an “important ecological function”. “The preservation of its significant vegetation would be an important guideline for the conservation of the biodiversity of the city of São Paulo”, states the report, dated November 2020.
Wanted by sheet, the city hall stated that the Attorney General’s Office has already filed an appeal against the decision and that it expects it “to be reformed by the Court of Justice in its entirety”.
According to the Municipal Department of Urbanism and Licensing, the legal feasibility of a possible use of the transfer of the right to build is being studied.
The Green Municipal Secretariat for the Environment, in turn, said that it inspects the area and that the terms of environmental compensation for carrying out the project are “momentarily suspended until a request for registration is completed”.
.
