Eminent Domain and Social Conflict in Five Latin American Metropolitan Areas Eminent Domain and Social Conflict in Five Latin American Metropolitan Areas

ANTONIO AZUELA Editor EMINENT DOMAIN social andconflict in five Latin American metropolitan areas EMINENT DOMAIN AND SOCIAL CONFLICT IN FIVE LATIN AMERICAN METROPOLITAN AREAS Eminent Domain and Social Conflict in Five Latin American Metropolitan Areas Edited by Antonio Azuela Juan Duarte, Emilio Haddad, Carlos Herrera, Cacilda Lopes dos Santos María Mercedes Maldonado Melinda Lis Maldonado, Ángela Oyhandy Diego Peña, Camilo Saavedra Eminent Domain and Social Conflict in Five Latin American Metropolitan Areas Edited by Antonio Azuela Juan Duarte, Emilio Haddad, Carlos Herrera, Cacilda Lopes dos Santos María Mercedes Maldonado Melinda Lis Maldonado, Ángela Oyhandy Diego Peña, Camilo Saavedra Cambridge, Massachusetts © 2017 by the Lincoln Institute of Land Policy All rights reserved. ISBN 978-1-55844-325-9 Spanish printed edition © 2013 by the Instituto de Investigaciones Sociales de la Universidad Nacional Autónoma de México and the Lincoln Institute of Land Policy. www.lincolninst.edu Contents Acknowledgments vii Foreword ix Gregory K. Ingram INTRODUCTION 1 Eminent Domain, Property, and the State in Latin American Cities Antonio Azuela CHAPTER ONE 37 Urban Policies and Eminent Domain in Argentina: Cases from the City of Buenos Aires and the Province of Buenos Aires (1976–2007) Juan Duarte and Angela Oyhandy CHAPTER TWO 79 Eminent Domain in Argentina: Practices and Legal Debates Germane to Public Interest Angela Oyhandy and Melinda Lis Maldonado CHAPTER THREE 133 Judicial Valuation and Delayed Payment of Compensation: The Case of Eminent Domain in the State of São Paulo, Brazil Emílio Haddad and Cacilda Lopes dos Santos V CHAPTER FOUR 199 Strengths and Weaknesses in the Use of Urban Eminent Domain in Colombia: Review Based on the Experience of Bogota María Mercedes Maldonado CHAPTER FIVE 247 Constitutional Change, Judges, the Social Function of Property, and Eminent Domain in Colombia María Mercedes Maldonado and Diego Isaías Peña CHAPTER SIX 285 Eminent Domain in Quito: Institutional Change and Municipal Government María Mercedes Maldonado CHAPTER SEVEN 321 Courts, Human Rights Cases, and Compensation of Eminent Domain: Case Studies in Ecuador María Mercedes Maldonado and Diego Isaías Peña CHAPTER EIGHT 373 Use, Overuse, and Reuse of Eminent Domain in Mexico City Antonio Azuela and Camilo Saavedra CHAPTER NINE 415 Property not under Discussion: The Courts and Eminent Domain in Mexico City Antonio Azuela and Carlos Herrera The Authors 466 VI Acknowledgments This book was possible thanks to the work of many people and support from several institutions. First, I would like to thank the authors of the various chapters for their commitment and dedication. Many participated in the sessions for the Interna- tional Research Group on Law and Urban Space (IRGLUS) that took place in Berlin in 2007, Milan in 2008, and Oñati in 2010, as part of the International Sociological Association’s Research Committee on the Sociology of Law (RCSL). The Lincoln Insti- tute of Land Policy provided fundamental support for two of these sessions where the project of this book was launched, and also for the final preparation of the chapters. Special thanks to Gregory K. Ingram, president and CEO of the Institute, and to Martim O. Smolka, director of the Program on Latin America and the Caribbean for the confidence they have placed in this exploration into the world of sociojuridical studies. Among the Institute staff, Anna Sant’Anna worked tirelessly on the organi- zation and supervision of the English translation and, generally, on the entire editorial process resulting in the almost simultane- ous production of an electronic version and a printed edition in each language. The book passed through the rigorous editorial process of the Institute of Social Research (Instituto de Investigaciones Sociales) of the UNAM. Subsequently, anonymous reviewers prompted us to examine crucial issues in the text. The publications depart- ment, coordinated by Berenise Hernández Alanís, provided the highest quality work. Those directly responsible include Lili Buj Niles, for her skilful editing; Cynthia Trigos Suzán, for the cover VI VII ACKNOWLEDGMENTS design; and María Guadalupe Escoto Rivas, for the final formatting of the text. At home, the companionship and support received from Corina Yturbe also made an important contribution to the process. Thank you so much to everyone who has participated in the project. Antonio Azuela VIII Foreword In 2006, Antonio Azuela, Martim Smolka, and I had several con- versations about the application of eminent domain in develop- ing countries, and particularly in Latin America. Our brief review of the literature found very little research, or even systematic information, on the topic. This finding, and the view that the subject was important, led us to propose public land acquisition as a theme for the Fourth International Urban Research Sym- posium sponsored by the World Bank that took place in May, 2007. Antonio agreed to prepare a paper on this topic for the Symposium with the support of the Lincoln Institute of Land Policy, and the result, with coauthor Carlos Herrera, was “Policies and Laws for the Expropriation of Land for Urban and Infrastruc- ture Projects: An Exploration of World Trends.” The paper assembled available information and identified more questions than answers. There was very little data on the extent of use of eminent domain because countries that applied it as a policy tool did not produce systematic information about its use. Moreover, existing academic research focused on legal issues and ignored other dimensions of this government practice. This original paper became a catalyst for much additional research on expropriation both in Latin America and in other regions. Antonio became intrigued with the subject and has been a major contributor both as a researcher and as a promoter of work on this topic, often with Lincoln Institute support. This book assembles several case studies of the application of eminent domain in Latin America and is likely to be the definitive volume on this topic for this decade. At the same time, the chapters in this VIII IX FOREWORD volume indicate that the issues surrounding eminent domain are not completely settled in any of the countries reported on here, and that changes are likely to continue in the coming years. The papers presented use a common definition of expropriation and address the two main questions posed by expropriation: under what circumstances is the public taking of land justified; and how is the amount of compensation determined? The case studies reveal different answers to these questions across countries. In particular, there is often much uncertainty about how to value land that is expropriated. In some countries, judges have set compensation amounts well in excess of any plausible market prices—values so high that some municipalities have essentially stopped using expropriation because they are unable to predict with any confidence what the compensation amounts will be. The reasons for this vary, ranging from attempts on the part of judges to ensure that expropriation will not be abused, to a lack of knowledge of judges about property markets and property values. The justification for the public taking of land also varies across countries, but the major purposes include facilitating the provi- sion of public goods, such as roads; distributing or re-distributing urban benefits, such as affordable lots or housing; promoting economic development, such as industrial parks; and regulariz- ing ownership of informal settlements. While the first purpose is perhaps the most ubiquitous and has the most legitimacy, the cases reveal a skepticism across countries about expropriation for grand infrastructure projects, such as freeways and airports. Part of the reason for the opposition to grand projects identified in these cases is that they often involve large areas and displace large numbers of households and firms. Opposition to large projects that displace many households and related activities is very common across all countries. Newspapers frequently carry stories about civil disturbances in China related to land acquisition for urban expansion. Resettlement related to large dams has produced long-standing political and social controversies in many countries. And there is still much discontent among those X FOREWORD displaced by the construction of Narita Airport near Tokyo, for example. The evolving nature of expropriation and its application re- vealed in these case studies is also a consistent theme. Some Latin American countries are expanding the definition of the social function of property, and this concept has implications for expropriation. For example, an owner’s insufficient attention to the social function of property could become a basis for expropriation in some countries. In the United States, the recent Supreme Court ruling, Kelo v. New London, clarified that property could be taken from a private owner and given to another private owner to promote economic development. This has led to several states placing strict limits on such conversion. The continuing evolution of the application and justification for expropriation suggests that scholars and researchers in this area will continue to be occu- pied documenting and debating changing practice in this area for some time to come. Gregory K. Ingram President Lincoln Institute of Land Policy XI INTRODUCTION Introduction Eminent Domain, Property, and the State in Latin American Cities

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