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Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - judgment

ruling

Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - ruling

decision

Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - decision

reply

Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - reply

order

Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - order

petition

Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - petition

appeal

Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - appeal

Filing Year For Action

This is a Public Civil Action (ACP) filed by the Public Prosecutor's Office of the State of Rio de Janeiro (MPRJ) against the Municipality of Niterói, with the aim of requiring the defendant to carry out a Neighborhood Impact Study (EIV) before granting a license for the construction of large residential and commercial buildings, with more than six floors, in the Icaraí neighborhood of Niterói. The plaintiff argues that the neighborhood's urban infrastructure does not support greater population density, and that real estate expansion has harmed the local population's quality of life. It argues that new building licenses are being granted without the requirement of a prior urban planning study, in disagreement with municipal urban policies, especially the Master Plan (Municipal Law 1.157, updated by Municipal Law 2.123) and the City Statute (Federal Law 10.257/01). It states that the expansion of the real estate market must take place in accordance with municipal planning, preserving urban sustainability and environmental protection. In this sense, in anticipation of a preliminary injunction, it requests that the defendant be ordered to first obtain an EIV for all large-scale real estate developments in the Icaraí neighborhood, as a condition for a construction permit. On the merits, among the requests, it asks for confirmation of the injunction and for the defendant to be ordered to pay compensation for the moral and material damage suffered by the community as a result of the omission of the EIV.
In a preliminary injunction, the court found that there was a risk of irreparable damage or damage that would be difficult to repair. He ordered the defendant to proceed with the licensing of the projects in question with the prior approval of the EIV, under penalty of a fine.

In its statement of defense, the Municipality of Niterói argued, preliminarily, that the plaintiff had no interest in acting. It alleged that the claim of the present ACP is absorbed in the object of a previous ACP (2009.002.051167-6). It argued also that it is impossible to control the constitutionality of a municipal law by means of an ACP. It is also stated that the plaintiff's allegations are generic, and that the EIV for the aforementioned projects does not fall within the parameters set by the Municipal Legislature that require this assessment. It argued that the municipality was not liable for moral and material damages. It emphasized the lack of technical evidence capable of proving the plaintiff's allegations. He asked for the injunction to be revoked. It requested, among other things, (i) that the lawsuit be dismissed, due to the lack of interest in acting, the inappropriateness of the chosen course of action and lis pendens, and (iv) that the plaintiff's claim be dismissed.

In its ruling, the judge held that the City Statute introduced various instruments that allow the state to take preventive measures in order to avoid unbalanced urban growth and guarantee minimum conditions for the occupation of habitable spaces, such as the EIV. It stated that it was an instrument for implementing the principles of prevention, precaution and sustainable development. It also considered that the criterion used by the MPRJ to require the EIV is based on the law, which considers developments with more than six floors to be large, emphasizing that the right to quality of life necessarily requires a guarantee of an ecologically balanced environment, and that the City Statute, by outlining instruments to protect the environment, is linked to the collective system of diffuse rights. The claim for material and moral damages was dismissed. It granted the application in part, to confirm the preliminary injunction and order the defendant to obtain prior approval of the EIV for all large-scale, multi-family residential or commercial real estate developments, with more than six floors, in the Icaraí neighborhood, in the stretch corresponding to urban fractions IC-06, IC-07 (up to Pedra Itapuca), IC-08, IC-12 and IC-14, under penalty of a fine.

The Municipality of Niterói then filed an appeal. In ruling on the appeal, the Seventeenth Civil Chamber of the Rio de Janeiro State Court of Justice (TJRJ) emphasized that the right to an ecologically balanced environment (article 225 of the Federal Constitution) includes urban planning as an integrating factor and the right to sustainable cities, which is a fundamental right, related to the guiding principles of city development (article 182 of the Federal Constitution). It understood that the EIV seeks to contemplate the positive and negative impacts of developments in relation to the quality of life of the local and nearby population. It pointed out that the principle of adaptation, included in the Paris Agreement (enacted by Federal Decree 9.073/2017) and provided for in the National Policy on Climate Change - PNMC (Federal Law 12.187/2009), requires reducing the vulnerability of natural and human systems, such as cities, to the effects of climate change. He considered that the action does not seek to declare a municipal law unconstitutional, but aims to comply with urban planning and environmental standards in order to oblige the municipality to require an EIV before approving large-scale developments, with a view to reducing urban risks and ensuring the sustainability of cities. He therefore dismissed the appeal.

The Municipality of Niterói filed a Constitutional Complaint (Rcl 35.699/RJ) with the Federal Supreme Court (STF) alleging that the TJRJ's decision violated Binding Precedents 10 and 37. On April 2020, the Complaint was dismissed in a monocratic decision and, after an interlocutory appeal, in a ruling. The First Panel of the STF held that there had been no violation of the plenary clause, in accordance with Binding Precedent 10, because the basis of the decision did not concern the unconstitutionality of the municipal law. It also concluded that the discussion deals with the prior approval of the EIV for granting a license for the construction of large-scale projects, which is not related to Binding Precedent 37. 

The Municipality of Niterói filed Special and Extraordinary Appeals against the appeal decision, which were admitted by the Third Vice-Presidency of the TJRJ. The Special Appeal (REsp 1.923.322/RJ) was distributed to the Superior Court of Justice (STJ), and in August 2024 it was denied in a decision that recognized that the appealed judgment presented concrete and sufficient grounds to support its conclusions. The Extraordinary Appeal (RE 1.522.706/RJ) was distributed to the STF, and in November 2024 it was also dismissed on the grounds that the appealed judgment did not diverge from the STF's case law on the possibility of intervention by the Judiciary in public policies aimed at realizing fundamental rights.

The judgments became final and the case was closed in the first instance, with the commencement of the enforcement of the sentence.

The execution is deemed terminated, given the information from the Public Prosecutor's Office regarding the approval of Municipal Law No. 3,385/2019, which establishes the new Master Plan for the city, and the consequent fulfillment of the obligation by the defendant. The judgment is certified as final, with the case being duly closed and archived.

Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study)

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Public Prosecutor’s Office of the State of Rio de Janeiro vs. Municipality of Niterói (Neighborhood Impact Study) - decision

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Economic sector

Adaptation/resilience