By Marcio Martins Bonilha Filho and Thomas Nosch Gonçalves
The scope of this article is to prospect, exclusively in the legislative sphere, the question of how the prohibition of abusive compensatory or mitigatory payments, in the context of impact studies or other releases of economic activity in urban law, can influence and reverberate throughout the private sector.
Introduction
Urbanistic problems plague all Brazilian municipalities, such as housing, transportation, real estate speculation, precariousness of basic sanitation and mainly the territorial division and the consequent segregation of space (SANTOS, 2006, p. 169).
There are significant increases in closed subdivisions. The latter occurred mainly due to the inclusion of a provision in Law 13,465/17, in the Urban Land Division Law (Law 6,766/79), which expressly authorized the figure of gated communities.
According to the Survey of the Urbanized Plots Market, in the State of São Paulo, prepared by SECOVI-SP, conducted in the second quarter of 2018, the launches are almost 50% for the open ones and 50% for the closed ones.
The subdivision and parcelling of land are interdisciplinary matters, in which the urbanistic and environmental aspects stand out, embracing the social function of the city. In this normative set, there was an important evolution in the LLE (Economic Freedom Law, 13.874/19), which created a measure of limitation to the State regulation, regarding the compensatory measures in urbanistic impacts.
Compatibilizing free initiative and the free exercise of the economic activity of the real estate entrepreneur, in light of the social function of the city, that is, correctly using the urbanistic instruments by means of regulation for the development of cities, constitutes a challenging and current issue in the national scenario.
The administrative instrument for evaluating these issues is the Neighborhood Impact Study (EIV). Basically, its objective is to analyze and previously inform the competent municipality about the prognosis of the implantation of enterprises and impacting activities, private or public, in urban areas, from the perspective of harmony between private interests and the interest of the collectivity in order to:
a) avoid imbalances in the growth of the cities;
b) guarantee minimum conditions of urban quality;
c) to ensure urban order and the socially just and environmentally balanced use of urban spaces. (Schvarsberg, Benny; Martins, Giselle C.; Cavalcanti, Carolina B. (org.) 2016), p.13)
This regulation, prepared by the municipality, must foresee criteria for the proposition of measures, equipment, or procedures, of preventive, corrective, or compensatory nature, that will be adopted to mitigate the negative impacts, in each phase of the undertaking.
The manual published by the Ministry of the Cities1, in its volume 4, of the collection of technical notebooks on the regulation and implementation of City Statute instruments, indicates the legitimacy of the counterparts without emphasizing at any time the need for pertinence.
These counterparts are not always linked to the project, resulting in municipal demands different from the effective impact on the proposed project, creating real abuses by public administrators.
In this sense, the Economic Freedom Law inserted an important device to protect the real estate entrepreneur and the development of the cities itself, obliging a demonstration of a certain thematic pertinence of the enterprise with the affected area, and not another specific desire of the city manager, even if legitimate to society, which will be analyzed next.
General notions of land parcelling and law 6.766/79 (Urban Land parcelling law).
The topic of land parceling can be analyzed in perspectives, civil, urbanistic and environmental. (AMADEI and AMADEI, 2014).
Before the 1988 Constitution and the 2002 Civil Code, diplomas that were protagonists in the displacement of the axiological vector of the human person, the break with the patrimonialist idea coming from the Napoleonic Code of 1804 and the CC of 1916.
The principle of free allocation of land allows owners all possible spatial forms, except the limitations set by law, which provide for minimum and maximums (PONTES DE MIRANDA, 2012, p. 38).
In urbanistics, (AMADEI e AMADEI, 2014, p.04) it is not possible to visualize urban property outside the context of the social function of the city, and it is also impossible to admit the territorial division outside the urbanistic perspective, especially with regard to public policies.
From an environmental perspective, the property and its respective territorial division must seek the ecologically balanced environment (article 225 of the Federal Constitution), reflected in the City Statute itself, article 2, I, which provides for the guarantee of the right to a sustainable city.
Still, on the social function, it is necessary that the city fulfills its social function, when the urban elements reach a dynamic equilibrium (MARRARA, 2007, p.182). In this sense, the entire subdivision project, including the compensatory measures of the EIV (Neighborhood Impact Study), must be within the planning and management of the environment, considering all the urbanistic vicissitudes.
According to (SILVA, 2012, p. 434-435), the consent of the Public Authority to subdivide the soil for urban purposes gives the private individual the power to exercise in his own name, in his own interest and at his own expense and risks, an activity that belongs to the Municipal Public Authority. Thus, the evaluation of the possibility or not of authorizing, in a certain portion of the territory, subdivisions or dismemberments depends on the Municipality's judgment of opportunity and convenience, always considering the concretization of fundamental rights.
This discretionary power of the public agent may result in abusiveness and, ultimately, in administrative improbity. This consequence is not uncommon. In an article published in the website of the Municipality of Embu das Artes in São Paulo2, on 09/27/10, the City Council approved a closed subdivision, in compensation for the construction of a Health Center at another address. In this article, one of the councilors said that if the company does not help, it is the people who will suffer.
In other words, the absence of pertinence with the urbanistic and environmental impact is patent, creating a true business counter, fomenting even more real estate speculation. It is verifiable that the inclusion of the urbanistic device in the LLE, which prevents abuse in compensatory measures, brings a solution to this administrative procedural obstacle.
THE LAW OF ECONOMIC FREEDOM AND ITS URBANISTIC DEVICE
Law 13.874/19 instituted the Declaration of Rights of Economic Freedom, substantially altering private relations and State regulation. Endowed with strong interdisciplinarity, it included an important legislative landmark in the urban plan.
It provides norms for the protection of free enterprise and the free exercise of economic activity, where the State acts as a normative and regulatory agent.
In addition, it creates an axiological vector in the application and interpretation of civil, business, economic, labor, and urban law.
In this diapason, intercompany contracts, which have gained great prominence in this theoretical legislative framework, strongly marked by autonomy and good faith, are in constant dialectical tension, both for freedom and equality, polarized by the notion of the entrepreneur and the company, thus implying the search and obtaining of profit (MARTINS-COSTA, 2018, p.196).
From the urbanistic point of view, it is item XI, in Article 3 of the aforementioned law, that marks the advance in urbanistic matters:
"Art. 3 The rights of every person, natural or legal, are essential for the economic development and growth of the country, observing the provisions in the sole paragraph of art. 170 of the Federal Constitution.
XI - no abusive compensatory or mitigating measure or provision is required, in impact studies or other releases of economic activities in urbanistic law, understood as those that: (our emphasis)
a) (VETOED);
b) requires a measure that was already planned to be executed before the request by the private party, without the economic activity changing the demand for the execution of said measure;
c) use the private party to carry out executions that compensate impacts that would exist independently of the enterprise or economic activity requested;
d) requires the execution or provision of any kind for areas or situations beyond those directly impacted by the economic activity; or
e) is unreasonable or disproportionate, including as a means of coercion or intimidation;".
An introductory note to the nuclear commandment of the sole paragraph of article 170 of the Federal Constitution is in order, inasmuch as it is assured to all the free exercise of any economic activity, regardless of authorization from public agencies, except in the cases provided for by law.
It is a true foundation of the system, authorizing and democratizing the possibility of the entrepreneur within the national territory. Even though there is a necessary regulation by the State, it cannot prevent the free exercise of business activity.
At this point, we highlight indirect formulas to prevent the exercise or even by a legitimately administrative act, composed of all elements and requirements, to prevent or hinder the exercise, for example, of abusive mitigation benefits.
The above transcribed item XI is specifically innovative, in the protection of the business framework and legitimate protector of society, which aims to prevent abusive measures and compel direct linkage to the project, thus avoiding discretionary acts of doubtful merit, ultimately damaging even the administrative probity of the act issued by the competent public agent.
In fact, both subparagraphs of the aforementioned item have a connection, besides the inherent abusiveness of the compensatory measures, they seek to rule out any type of consideration from the developer, of an object that has no pertinence to the neighborhood impact, and stand out in the following main ideas:
1) do not request a project mitigation measure or previous need, already verified by the municipality
2) use the private resource to compensate a certain urbanistic point that will have no direct or indirect impact on the implementation of the development.
3) that the measure does not go beyond the effects of the territorial jurisdiction affected, and
4) keep proportionality with the economic-financial possibility of the company and of the enterprise, besides avoiding real estate speculation and specific choice of companies.
Its paragraphs are in a list of examples, with the objective of guiding the public agent in the examination of the opportunity and convenience of issuing a license or authorization for the project. In this way, any measure that proves to be incompatible must be questioned.
This provision makes sense, with regard to the freedom and protection of entrepreneurs who are often involved in a "business counter", as mentioned in the previous chapter. The idea is to allow all entrepreneurs to operate on equal terms, without distinction, thus avoiding real estate speculation and eventual administrative improbity.
Furthermore, it is still possible to use this artifice to privilege certain companies over others, further provoking the well-known urbanistic problems.
CONCLUSIONS
It is the duty of all municipalities to update their legislation, expressly prohibiting abusive compensation measures.
However, until competent legislation is issued, real estate developers cannot be at the mercy of discretionary acts that do not demonstrate the real link, and the federal legislation must be applied immediately to make the project viable without the necessary compensation.
Finally, it is imperative to act in a preventive manner in the dissemination of this important change, thus avoiding the undesirable judicialization of the matter, seeking to adjust the correct normative regulation of the State.
1 "It is common to notice questionings about the legitimacy of the Public Power in charging counterparts (in the form of mitigating or compensatory measures) for the installation of enterprises that are completely in accordance with the urban legislation in force." Estudo de Impacto de Vizinhança: Caderno Técnico de Regulamentação e Implementação/ Benny Schvasrberg, Martins, Giselle C., Kallas, Luana M. E.; Cavalcanti, Carolina B.; Teixeira, Letícia M.. Brasília: University of Brasília, 2016.
2 Accessed 05/31/2020: http://www.cmembu.sp.gov.br/noticias/1131/camara-aprova-novo-loteamento-com-compensacao-de-area-institucional
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