Detalhes bibliográficos
| Ano de defesa: |
2025 |
| Autor(a) principal: |
Diniz, Luiz Paulo dos Santos
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| Orientador(a): |
Conceitos de diversidade, equidade e inclusão: uma proposta para implementação no âmbito de direitos humanos e empresas
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| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Dissertação
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| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
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| Programa de Pós-Graduação: |
Programa de Pós-Graduação em Direito
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| Departamento: |
Faculdade de Direito
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| País: |
Brasil
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| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://repositorio.pucsp.br/jspui/handle/handle/44112
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Resumo: |
Brazil underwent an intense urbanization process throughout the 20th century. This process left profound marks on Brazilian cities, which are characterized by socio-spatial inequality. As cities grow, they expand into rural areas. Rural properties, typically large, are subdivided to create urban lots. The formal mechanism by which rural properties are transformed into urban lots is land subdivision. However, it is not enough to simply divide the land into smaller plots; it is also necessary to provide the urban lot with appropriate infrastructure and public amenities to make future human occupation feasible. This complex activity of creating urban areas is carried out by developers. By expanding city limits, they engage in an activity of undeniable public interest. Often, at the early stages of subdivision, there is no municipal zoning legislation to regulate the use and occupation of the newly subdivided urban areas. In response to this, Article 26, VII, of Federal Law No. 6.766/1979 allows developers to establish conventional restrictions to regulate the use and occupation of land in their projects. It should be noted, however, that these conventional restrictions are supplementary to municipal zoning legislation. With the dynamic growth of cities, it is possible for municipalities to later enact zoning laws to regulate the use and occupation of land in the subdivision area. When a normative conflict arises between conventional subdivision restrictions and municipal zoning legislation, which should prevail? This dissertation seeks to answer this question. Considering Article 26, VII, of Federal Law No. 6.766/1979, we argue that municipal legislation should prevail. This provision allows developers to establish conventional restrictions to fill the absence of municipal law, which differs from complementing existing municipal law, hence the term "conventional urbanistic subdivision restrictions, supplementary to the relevant legislation." However, municipalities, in exercising their political autonomy, may grant precedence to conventional subdivision restrictions in certain situations. The municipality of São Paulo has such a provision. Article 39 of Municipal Law No. 8.001/1973 states that conventional subdivision restrictions should prevail over municipal zoning legislation when they are more stringent. However, this is an exceptional provision that should only apply in certain urban zones and to occupation restrictions. The controversy surrounding this normative conflict was examined by the Superior Court of Justice in the judgment of Special Appeal No. 302.906/SP. In this precedent, the Court ruled that the more stringent rule should prevail, which, in this specific case, was the conventional subdivision restriction. In this work, we examine the implications of this ruling and critique the decision, which, in our view, overlooked the supplementary nature of conventional restrictions and the exceptional nature of Article 39 of Municipal Law No. 8.001/1973 |
