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Attempt to Open Fragile Lands Challenged

A recent executive decree to allow the urbanization of certain parts of the greater metropolitan area (GAM) was denounced before the Constitutional Chamber of the Supreme Court (Sala IV) last week because of the order’s alleged lack of environmental viability.

Alvaro Sagot, an environmental lawyer, and physicist José Alberto Brenes on March 4 presented an action of unconstitutionality against decree number 35748-MP-MINAETMIVA, freezing its application.

Environmentalists claim that the expansion of San José’s greater metropolitan area would damage important aquifers, harm forests and cause irreparable damage. Government officials who issued the decree deny the charges, and say the order will relieve the pressure of rapid population growth in certain municipalities.

The decree, issued by President Oscar Arias Feb.19, would extend the area subject to intense urban development up to an additional 200 meters outward around the perimeter of the urban restraint ring in 12 of the GAM’s 31 municipalities. The urban restraint ring is a line established by executive decree in 1982 to help contain urban growth.

The 1982 decree established a 100-meter buffer zone that extends outward from the GAM’s border and allows for an additional 100 meters outward from this cushion for possible development in the future, Housing Ministry officials said on Thursday. It is this 200 meters that is in contention.

Some 196,000 hectares of land dedicated to urban development are included within the GAM’s restraint ring. The Special Protection Zone established by the 1982 decree identifies 152,500 hectares outside the ring where restricted development is allowed, according to Housing Ministry documents.

The extension of the ring would add an additional 1,200 hectares to the core urban area of the GAM (see map), said Leonel Rosales, director of urban development for the National Institute for Housing and Urban Development (INVU). These 1,200 hectares make up the total area that would be opened to more intense development in the 12 municipalities that don’t yet have legally binding regulatory plans.

But according to Sagot and Brenes’ motion, allowing landowners to extend such intense development into this area would “affect water resources, forest, biodiversity and scenery, as the most (environmentally) sensitive areas of the GAM are near the urban restraint ring.”

Urbanization in this area, Sagot said, would be a violation of the Costa Rican constitution’s guarantee of a healthy and ecologically balanced environment for all citizens.

Attempts to extend the GAM’s urban restraint ring to development are not new to the Sala IV.

In April 2009, the court ruled that a similar decree issued by the executive branch was unconstitutional because it would have a negative impact on mantle-level aquifers, aquifer recharge zones, forests and scenery.

In 2006, the court rejected an attempt by the government of President Abel Pacheco to open the area to urbanization.

“In spite of all of this, in 2010, they (the executive branch) issue a decree that is almost identical to what the Sala IV has already declared to be unconstitutional,” Sagot said.


Zoning the GAM


In order to better zone the GAM, the Costa Rican government in 2003 began the Regional Urban Planning for the Greater Metropolitan Area Program (PRUGAM), an initiative that ended in December 2009.

PRUGAM, in addition to establishing zoning and regulatory plans for the GAM’s municipalities, created three environmental fragility zones for the area outside the contention ring – “moderately fragile zones,” “highly fragile zones” and “very highly fragile zones.”

Highly and very highly fragile zones include areas where aquifers, rivers, forests and seismic and volcanic zones exist. These areas account for 75.4 percent of the land included in the 2010 decree and should be dedicated to small-scale agriculture or used for conservation, according to Allan Astorga, a geologist who helped create the three categories for PLAN-PRUGAM 2008-2030.

Moderately fragile zones, on the other hand, allow for “intense urbanization.” Only 24.6 percent of the area the decree mentions are within “moderately fragile zones,” according to Astorga’s studies.

Astorga fears that implementation of the decree could lead to “disorderly development” and put citizens at risk of contaminated air or water or put them in harm’s way of landslides, earthquakes or volcanic eruptions.

“(The decree) doesn’t make sense technically,” Astorga said. “PRUGAM did a very indepth analysis to come up with these environmental fragility zones. We determined which areas are geologically sensitive, if there are tectonic plates, (potential for) landslides, forests. We looked at areas where waterways and aqueducts need to be protected. This decree disregards all of this work.”

Rosales claims, however, that if existing studies demonstrate that an area is environmentally sensitive, no building permits will be issued.

Barva de Heredia, a municipality without a regulatory plan, is the site of an important mantle-level aquifer located within the 200 meters that the decree would open to development. Rosales said no permits will be issued to build on this site.

“This is only 200 meters in 12 municipalities,” he said. “This doesn’t extend into the mountains behind San José. It’s only 200 meters. If an area is not environmentally apt for urbanization, it won’t receive permits.”

Alfredo Bolaños, executive president of INVU, said the institute has received “mountains of requests” from municipalities without regulatory plans, asking to allow for the expansion of the ring in order to accommodate a population in the GAM that INVU officials say has grown by nearly one million people since 1995. Bolaños said that residents have complained about not having sufficient space to build. But Astorga does not believe that shortage of space is an issue. In some of these municipalities, up to 30 percent of the space inside the restraint ring is apt for urbanization, according to his research.

“We are not talking about a lack of space,” he said. “There is plenty of space. We are talking about a lack of intelligent use of space.”


Doubts About Intention?


Costa Rican President Oscar Arias, Housing Minister Clara Zomer, and the Environment Energy and Telecommunications Minister (MINAET), Jorge Rodríguez, all signed the decree. During recent weeks, speculation has arisen about the intentions of the executive branch in signing the decree.

Zomer denied a direct comment to The Tico Times last week when the paper called the ministry about the issue.

MINAET press officials said they would have to consult with Rodríguez about the document, but never responded.

At a press conference on Thursday morning, Zomer denied being pushed by developers or special interests to sign the decree.

“I haven’t received pressure from anyone,” she said. “INVU advised me that certain municipalities needed more space. I just go by what INVU says.”

Sagot still has doubts, but for now he will leave the viability of the decree in the hands of the Sala IV.

“I don’t know what the executive branch’s interests are, but we believe the judges will understand the very serious contradictions at play here,” he said.



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