Instrumentos urbanísticos de proteção ao patrimônio cultural: uma abordagem jurídica sobre a transferência do direito de construir em Santa Maria – RS

Abstract

This work holds to the legal analysis of the urban instrument called Development Rights Transfer – DRT, as a way of protecting the built cultural heritage in the legal system of the city of Santa Maria/RS. The federal law 10.257 from July 10th , 2001, known as the city statute, is responsible for the general rules of Urban Policy in Brazil. Its text mentions several times a concern with the protection of the cultural heritage, through guidelines or even instruments used for this purpose. The Development Rights Transfer is one of those instruments, which has, among other purposes, the preservation of the cultural interest property. It is about the possibility of alienation or exercising in another place of the idle constructive potential of that property. However, in order to make the municipalities use the instrument, they need to have the Master Plan and edit the city law, regulating the transfer. As the city of Santa Maria has the Environmental and Urban Development in its Master Plan, it contains a projected utilization of DRT as a urban instrument, but until now it has not been edited anything about the topic in the city statute, making its use impossible. The study was developed in three chapters, focused on the final result, consisted in the draft project for a specific law to the DRT in Santa Maria/RS. Initially, the analysis was developed on the built cultural heritage and on the DRT's instrument, with conceptual and historical approaches about the topic, emphasizing the municipal public policies to the cultural heritage, the housing market and the challenges in the preservation, as well as the social function and the cultural interest of the property. Then, DRT was investigated in other city statutes and the case of Santa Maria/RS, with a survey about the legal protection to the built cultural heritage of the city and the analysis of the urban law in the city. Finally, legal considerations were made on the feasibility of using the instrument in Santa Maria/RS, approaching some controversial issues about DRT, the usage of the instrument in Santa Maria/RS and the mainly points to be noticed in the text of the law. Once the analysis was done, it is proposed a draft project on the regulatory specific law of the Development Rights Transfer of the city, in order to incorporate the instrument to the public policies of management and the protection to the cultural heritage, extremely important so that it can be ensured the economic sustainability to the cultural good.