Revista de Direito da Cidade vol. 08, nº 3. ISSN IN SÃO PAULO S 2014 MASTER PLAN 1


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LAND AND FINANCIAL RESOURCES FOR SOCIAL HOUSING: THE SOLIDARITY QUOTA IN SÃO PAULO S 2014 MASTER PLAN 1 TERRA E RECURSOS FINANCEIROS PARA A HABITAÇÃO SOCIAL: A COTA DE SOLIDARIEDADE NO PLANO DIRETOR DE 2014 EM SÃO PAULO Debora Sotto 2 Abstract This article s main objective is to analyse the solidarity quota s legal framework: an urban tool created by São Paulo s 2014 Master Plan in order to boost social housing projects through the levy of soil and financial resources. As quantitative data on its implementation is still unavailable due to the novelty of this tool, this study s starting point is the examination of the available official data on the ongoing social housing programmes and on the implementation of the Special Social Interest Zones ZEIS. An extensive revision of the the applicable federal and local legislations is also conducted. The main elements and characteristics of the solidarity quota`s legal framework are dully appointed and examined, with support on the review of relevant literature in the legal as well as in the urban planning fields. Lastly, the solidarity quota is compared with the Interconnected Operation, a precedent and similar urban tool valid in the city of São Paulo until the early 2000s, when it was ruled unconstitutional by the State Court of Law. The results obtained in this study indicate that the solidarity quota does represent an advance, as it intends to diminish spatial segregation, presenting a solution for soil and financial resources scarcity through value-capture. Keywords: master plan; right to housing; segregation; social housing; zoning. Resumo O principal objetivo deste artigo é analisar o quadro jurídico da quota de solidariedade: uma ferramenta urbana criada pelo Plano Diretor de 2014, em São Paulo, a fim de impulsionar projetos de habitação social por meio arrecadação de solo e de recursos financeiros. Como os dados quantitativos sobre a sua implementação ainda não estam disponível devido à novidade desta ferramenta, ponto de partida deste estudo é a análise dos dados oficiais disponíveis sobre os programas de habitação social em curso e sobre a implementação das Zonas Especiais de Interesse Social - ZEIS. Também é realizada uma extensa revisão das legislações federais e locais aplicáveis. Os principais elementos e características do quadro jurídico da cota de solidariedade são devidamente apontados e examinadoscom apoio na revisão da literatura relevante não legal, bem como nas áreas de planejamento urbano. Por último, a cota de solidariedade é comparada com a Operação Interligada, um precedente e uma ferramenta urbana semelhante válida na cidade de São Paulo até o início dos anos 2000, quando foi considerada inconstitucional pela Corte do Estado de Direito. Os resultados obtidos neste estudo indicam que a cota de solidariedade representa um avanço, uma vez que tem a intenção de diminuir a segregação espacial, apresentando uma solução para a escassez do solo e dos recursos financeiros por meio do valor de captura. Palavras-chave: plano diretor; direito à habitação; segregação; habitação social; zoneamento. 1 This paper was presented at the 10 th International Conference on Planning, Law, and Property Rights PLPR 2016, in Bern, Switzerland. 2 Procuradora do Município de São Paulo (2003). Doutora em Direito Urbanístico pela PUC/SP (2015). Pesquisadora do Grupo de Pesquisa Meio Ambiente Urbano - GPMAU da PUC/SP (2011). Revista de Direito da Cidade, vol. 08, nº 3. ISSN pp INTRODUCTION São Paulo, the largest and richest city in Brazil, struggles against striking urban and social inequalities. There is a significant housing deficit, especially amongst the poorest families, with monthly incomes up to US$ Even though many areas in the city have been reserved, as Special Social Interest Zones, to land regularization and to the construction of social housing, the budget available to implement these projects is insufficient to meet the city`s pressing needs. In order to solve this problem, São Paulo s brand new Master Plan edited in 2014, has created an urban planning tool designated as a solidarity quota. Through this mechanism, projects with an area superior to m 2 will be charged with a quota the solidarity quota - correspondent to ten percent of the project s area, which must be paid by the developer to the Municipality in the form of land, social housing units in the project itself, social housings units built elsewhere or in cash, deposited in the Municipality s Urban Development Fund. The solidarity quotas significantly resemble another urban planning tool implemented by the city of São Paulo from the 1980 s up to the early 2000 s, designated as the Interconnected Operations, by which the developers could acquire development rights in exchange of building social housing to slum dwellers in the city. The Interconnected Operations were indeed successful to implement social housing, but in areas located in the poor peripheries, thus aggravating the spatial segregation, which is a chronic problem in São Paulo. Following a judicial order, the Interconnected Operations had to be aborted in the early 2000 s, as São Paulo s Court of Law ruled them unconstitutional for breaching the principle of the legal reserve. When compared to the Interconnect Operations, the solidarity quotas do represent a significant development, as they intend to diminish rather than aggravate spatial segregation, operating in synergy with other urban tool, such as the Special Social Interest Zones ZEIS and the Housing Programs. SINGER ( p. 33) once stated that there is no place for the poor in the capitalist city. The solidarity quota is a hopeful attempt to open up space for the poor in a more just city. This is what we intend to demonstrate in our study. 3 Considering an exchange rate of R$4,00 to US$1,00. Revista de Direito da Cidade, vol. 08, nº 3. ISSN pp SOCIAL HOUSING CHALLENGES IN SÃO PAULO: SCARCITY OF SOIL AND SHORTAGE OF FINANCIAL RESOURCES São Paulo is the largest and richest city in Brazil. It is located in the southeast portion of the country, and it spreads over an area of approximately 150 thousand hectares. According to the 2010 Brazilian Census 4, the Metropolitan Region of São Paulo, which is integrated by the city of São Paulo and 38 other cities, is the 5th agglomeration in the planet, with a total of inhabitants. The city of São Paulo alone has a population of inhabitants. Its GDP at current prices has summed up to US$140 billion dollars in the year of 2013; it is the highest GDP rate amongst Brazilian Municipalities. According to the Brazilian Atlas of Human Development 5, São Paulo has a Municipal Human Development Index - MHDI of 0,805 (very high), thus occupying the 28 th position in Brazil. From 1991 to 2010, São Paulo s MHDI has increased 17, 09%, due to improvements in the education, longevity and income dimensions. Nevertheless, its Gini Coefficient, estimated at 0, 62, indicates significant inequality of income distribution in the city: 14,6% of the city s population is vulnerable to poverty ad 22,58% of the adults haven t completed basic education and are employed in informal jobs. In an observation made in the 1990s, but yet fully actual and applicable to current times, SANTOS (2009 p. 15) stated that, due to the apposition and overlapping of traces of economic opulence and signals of acute breakdown, São Paulo is an example of incomplete modernity, for all that is most modern can be found there, right next to the most gigantic needs. The city s territorial organization - segregated and exclusionary - reflects its striking social inequalities and vulnerabilities. Richer districts concentrate in the centre and south-west portions of the city. Poor districts are distributed mostly in the periphery, predominantly at the east and far south portions of the city, and have the worst vulnerability indicators. Slums, informal settlements and tenements are abundant in the city: according to the Municipal Secretariat of Housing - SEHAB 6, there were 1643 slums, 357 urbanized settlements, 1087 tenements and 1042 informal settlements in São Paulo in the year of As GROSTEIN (2001) points out, this urban sprawl pattern - oriented towards the periphery, with the increase in the number of slums and illegal subdivisions and significant 4 Data compiled at: [ 5 Digital platform, available at: [ 6 Data available at:[ Revista de Direito da Cidade, vol. 08, nº 3. ISSN pp environmental degradation - dramatically aggravates the living conditions of the poor, in São Paulo as well as in other Brazilian metropolises. São Paulo also struggles against a significant housing deficit, which has been aggravated by the escalation in the residential units prices, observed all over Brazil in the last few years. From January 2008 up to November 2015, in comparison to an inflation of approximately 60,4%, house purchase prices in São Paulo have risen 224,8% whereas rentals have augmented 91,9% 7. According to São Paulo s Municipal Housing Plan, in the year of 2009 approximately dwellings demanded legal, urban or constructive regularization and new dwellings were needed to eliminate the housing deficit in the city. Projections to 2014 estimated that at least more dwellings would have to be constructed in order to provide for the increase in the housing deficit due to the demographic growth. The 1988 Brazilian Constitution protects the right to housing alongside other social rights, such as health, education, labour and transportation. Accordingly, the implementation of housing programs, alongside with other essential urban services such as sanitation and transportation, is a common competence shared by all federate entities, here comprised the Union, the Federate States and the Municipalities. Also, the Brazilian Statute of the City - a federal law which provides guidelines to the urban development policy to be observed by all federate entities - also ensures the right to housing to all city dwellers and city users as an inseparable component of the right to the sustainable city, which is expressly defined as the right to urban soil, to housing, to sanitation, to infrastructure, to transportation and to public services, to work and to leisure, for the present and the future generations. These legal provisions are perfectly coherent with the guidelines set by two international documents: the International Covenant on Economic, Social and Cultural Rights ICESCR - a multilateral treaty set by the United Nations General Assembly in and the World Charter for the Right to the City set by social movements and non-governmental organizations assembled in the Social Forum for the Americas in Quito, 2004, the World Urban Forum in Barcelona, 2004, and the World Social Forum in Porto Alegre, In both documents, affordability and adequate living conditions herein comprised an adequate location in the city - are presented as essential elements of the right to housing. 7 According to the FIPE ZAP Index, available at: [ Revista de Direito da Cidade, vol. 08, nº 3. ISSN pp Article 11, paragraph 1 of the ICESCR recognizes the right to housing as an essential component of the right to an adequate standard of living and of the right to the continuous improvement of living conditions. Accordingly, Article XIV, paragraph 1 of the World Charter for the Right to the City states that all cities, within the framework of their respective competences, should guarantee that housing fulfilling of adequate living conditions for all citizens and also affordable for all. As SAULE JR. ( p. 133) points out, the basic core of the right to housing is composed of three essential elements: security, peace and dignity. All these three elements strongly depend on the affordability and liveability provided by the dwellings, variables which, in the city, are in great dependence with another central element which is location. Well located dwellings provided with basic urban utilities and infrastructure and accessible to jobs and urban services provide the best living conditions but are also less affordable, if not unaffordable at all, for the poor. Therefore, the fulfilment of the right to housing, as a pre-condition to the realization of the right to the city, strongly depends on the development of well structured housing public policies, to be implemented by governments in all three levels: national, regional and local. In this context, in order to tackle São Paulo s social inequalities, the provision of affordable, well located dwellings for the poor must be one of the core objectives of the city s urban planning. This has been recognised by São Paulo s 2014 Master Plan in various dispositions, of which two are worth mentioning in this study. First of all, the has elected the fulfilment of social rights, herein expressly included the right to housing, as targets to be pursued through the social function of property. Also, the Master Plan has appointed as one of its strategic objectives to reduce commuting in the city, through the balancing of the location of jobs and dwellings. However, considering the city s many complexities and contradictions, two important obstacles must be overcome by city planners in order to make social housing viable and affordable to the poorest: the scarcity of soil and the shortage of financial resources. TACKLING THE SCARCITY OF SOIL: SPECIAL SOCIAL INTEREST ZONES - ZEIS São Paulo s two latest Master Plans, edited in 2002 and 2014, have made an attempt to overcome soil scarcity for social housing projects by marking out significant portions of the city s territory as Special Social Interest Zones - ZEIS, reserving these areas for land regularization and for the construction of social housing. Revista de Direito da Cidade, vol. 08, nº 3. ISSN pp As PESSOA (2009, p. 55) points out, the implementation of the ZEIS has originated from the necessity to recognize and incorporate the city produced by the low income population to the consolidated urban fabric. Therefore, the ZEIS main intent is to subtract portions of land from the real estate market, reserving them to the allocation of social housing and land regularization projects, to be conducted either by the public or private sectors, individually as well as in publicprivate partnerships. The ZEIS is contemplated as an urban development tool both in the Statute of the City and in the Federal Law n /2009, which has implemented Brazil s most recent National Housing Program, Minha Casa Minha Vida PMCMV. In juridical terms, the foundations for the delimitation of ZEIS in Brazilian cities lie within the principle of the social function of property, provided for in the Brazilian Constitution as a central element to the urban development policy. By this principle, the ownership of urban property implicates the duty to give his property an adequate destination, that is, a destination able to fulfil the guidelines set by the city s Master Plan. Specific rules on land use, occupation and subdivision applicable to the ZEIS must be set by the city s Master Plan 8. These specific ZEIS rules intend to guarantee the viability of social housing projects and land regularization initiatives. Non-residential uses are admitted in the ZEIS under predetermined conditions, established not only to assist the area s core destination, providing jobs and services to its residents, but also to integrate the ZEIS areas to the rest of the city, avoiding as well as remedying socio-spatial segregation. There are, in general, two main types of ZEIS: the so-called land regularization ZEIS, allocated on public or private areas already occupied by informal subdivisions and settlements inhabited by low income families, such as slums, tenements, irregular subdivisions and buildings; and the urban voids ZEIS, allocated on large parcels of non-constructed urban soil or empty, derelict buildings in the city. According to a study coordinated by SANTOS JR and MONTANDON (2011), amongst all the urban policy instruments introduced by the Statute of the City in 2001, the ZEIS is the urban tool most used by Master Plans in Brazil; nevertheless, the vast majority of these Master Plans have chosen to regulate only the land regularization type of ZEIS. 8 It is important to note that, according to the Brazilian Constitution, Master Plans are mandatory for cities with a population superior to inhabitants and must be approved in the form of a municipal law. Revista de Direito da Cidade, vol. 08, nº 3. ISSN pp In order to secure the achievement of the ZEIS goals and to avoid distortions, the Statute of the City determines that each ZEIS must be managed by a specific Management Council, to be integrated by representatives of all social actors implicated, such as residents, social housing movements, developers, associations, NGOs, the Municipal Administration, etc. Also, every ZEIS area must have a specific urbanization plan, to be elaborated, implemented and controlled through popular participation. São Paulo s 2002 Master Plan approved shortly after the Statute of the City s edition - has allocated 710 perimeters as ZEIS, correspondent to approximately 8,23% of the city s territory. The Zoning Law, edited in 2004, has increased these numbers to 964 perimeters allocated as ZEIS, correspondent to approximately 9,23% of the Municipality s territory. These perimeters were classified, according to their characteristics, in four types of ZEIS: ZEIS 1 - areas occupied by informal settlements, destined to land regularization projects; ZEIS 2 - empty or underused grounds or plots; ZEIS 3 - well serviced areas with a predomination of empty or underused buildings and ZEIS 4 - empty plots or grounds, adequate for urbanization, located in environmental protection areas. As SANTORO (2015) highlights, the Master Plan s original intent was to render the ZEIS attractive to developers by setting higher floor area ratios in comparison to other zones, mostly free of development rights payments; however, as the 2004 Zoning Law diminished the higher floor area ratios of other zones, the ZEIS ended up losing its attractiveness. As a result, according to ROLNIK and SANTORO (2014), in the period between 2003 and 2007, more social housing projects were built outside the ZEIS than inside the ZEIS, a scenario only reversed according to the authors - with the launch of the Federal Housing Program Minha Casa Minha Vida in São Paulo s 2014 Master Plan has made some adaptations to the ZEIS strategy, in the hopes of securing more soil for social housing in the city. It has created a fifth ZEIS category, ZEIS 5: an urban void ZEIS destined to the production of social housing for families of higher income rates, between US$1320 and US$2200. The number of perimeters augmented from 964 to 2281, in a total area of 41km 2, calculated to cope with the projected housing deficit for However, the concrete results of these new provisions are yet to be observed. Revista de Direito da Cidade, vol. 08, nº 3. ISSN pp TACKLING THE SHORTAGE OF FINANCIAL RESOURCES: FEDERAL AND MUNICIPAL SOCIAL HOUSING PROGRAMS As far as financial resources for social housing are concerned, an ambitious Program, called Minha Casa Minha Vida - PMCMV, has been launched by the Federal Government in 2009 to promote the production and the acquisition of dwellings by families with maximum incomes of US$2200,00 9, both in rural as in urban areas. In urban areas, for families with maximum incomes of US$1320,00, the Program operates through the granting of subsidies by the Federal Government, in order to complement the proponent s financial capacity to pay for the unit and, at the same time, protect the system s economical balance. For families with incomes between US$1320,00 and US$2200,00, the Program finances housing projects on special conditions, using resources from a federal fund. Projects targeted on families with incomes up to US$660,00 are organized by the State and/or by the Municipal Govern
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