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 for pacify the theme once and for all. Viver Incorporadora e Construtora, owner of the land with 23 thousand m² of Atlantic forest, has the right to continue 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 public farm court in São Paulo, 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 a measure that discourages it, in order to guarantee the rights of the executors”.
The magistrate asks that the city hall ” stop creating obstacles to the implementation of the project”.
Pimentel, in its decision, unanimously does not mention the registration process opened at the end of 2020, at Conpresp (Municipal Council for the Preservation of Historical, Cultural and Environmental Heritage).
The Public Ministry of São Paulo has already filed an appeal against the decision.
“It is common for the citizen to obtain a demolition permit and the following day the location will be the object of demolition opening and, there is no dispute in relation to this, there is no way he invoke the right to demolish. It’s the same situation in the present case”, states the Public Ministry in the appeal.
“The magistrate cannot, without due legal process, disregard a decision to open a listing process.”
Contacted by Folha, Viver Incorporadora claims that the Court “has again recognized the validity of the administrative process and the licenses granted to continuity of the project on site”.
According to the construction company, the project that was approved almost two decades ago provided for the maintenance of 13 thousand m² of green area, and use of the others 23 thousand m² for construction.
“In addition, the company carried out the planting of more than 5. seedlings of standard Depave species, delivered more than a thousand tree specimens to the Municipal Nursery Manequinho Lopes e converted about 13 thousand tree seedlings in renovation and expansion works of the municipal astrophysics school in Ibirapuera Park”, says the company, in a note.
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 that could be used.
The transfer of construction potential was used, for example, in the process for creating the Parque Augusta, in which the construction companies donated the area and handed over the park in exchange for building potential in another part of the city. search for a deal. 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 hold 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 OAB Environment Commission /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 place the area green at risk, considering that the construction company could support itself in the decision to act on the spot.
“We have already seen other cases like this here in SP. When the entrepreneur finds himself under threat of toppling, he create a fait accompli “, says the lawyer specializing in the environmental area.
Despite these episodes, she warns, just opening the listing process is enough to protect the area, until there is a final decision as to the preservation or not of the place.
A technical opinion of the Municipal Secretariat of Green and the Environment points out that, in Jardim Alfomares, there are “threatened species” and “migratory species” of the forest Atlantic.
During the technical visit, there was a high level of fauna sighting, 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.
Sought by Folha, the city hall stated that the Municipal 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 under study.
The Municipal Department of Verde do Meio Ambiente, in turn, said that he 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”.