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Posted by portugalpress on June 08, 2017

Imagine a 13-storey building with 105 apartments. It is in perfectly good condition and inhabited by about 300 people. Centrally located, with views overlooking a river beyond a park, it’s a desirable place to live and its residents are pleased to call it home.

Now imagine the government suddenly deciding that all of these people should be kicked-out from that building and then condemning it to be torn down.

You may wonder: Is the building a danger of some sort, or in a disgraceful state of disrepair? Quite the opposite, it is in good condition and very well maintained.

Does the government own the building? No, the state will confiscate the private properties from the individual homeowners to do this.

But why? To build a crucial road or necessary hospital? No, just because the building is seen as being too tall!

This is not an imaginary case. It’s actually happening right now in Viana do Castelo, Portugal. The “Edifício Jardim” (Garden Building), more commonly known as “Prédio Coutinho” (the Coutinho Building) after the name of its developer, was built in 1973. At that time, the municipality put the land where the town’s old market was up for sale, moved the market to a neighbouring space, and fully approved the building’s design and construction on this plot of land they sold to Mr. Coutinho.

It was first seen as an achievement of sorts, for this northern Portuguese town to have such a modern high-rise constructed. While not exactly a skyscraper, it was much taller than the old three-storey buildings surrounding it. It was also viewed as a fashionable sign that Viana itself was growing-up.

For both its location and views, it immediately became the place to live. Afterwards, however, some began to criticise the comparatively lofty structure as awkwardly sticking out. While there are other towering apartments scattered around the city, this is the only one within the historic centre. So, for some, it changed from being a notable landmark, to being a scar on the city’s skyline. They claimed it was an urban planning mistake. More radically, a mistake that can only be rectified through seizure and demolition.

There were failed attempts to remove the building as early as 1990. Then, some half-baked proposals to essentially cut the building in half, by removing all floors above the sixth. The main issue with all of these is that it would be totally unjustifiable to kick people out of their homes and cut down a perfectly good building for no good reason, only that it stands-out.

Unlike some of the practically abandoned and severely dilapidated neighbouring buildings (some whose roofs have actually collapsed-in), the Coutinho Building is solidly constructed and still in very good shape. So while other properties in the vicinity are more in need of both aesthetic as well as basic structural rehabilitation, the Coutinho Building is perfectly fine. It would be destroyed due to its height alone.

The first serious step towards that objective came in 2000 with an inconspicuously-worded municipal plan for the elimination of “visual intrusions” and “volumetric discrepancies” to restore “heterogeneity” and “balance” to the historic centre in order to create the conditions for a World Heritage Site. What this in fact meant was just that the Coutinho Building should be torn down. This unreasonable proposal, however, gained momentum based on the justification provided: that without such a building Viana could, in fact, be declared a UNESCO World Heritage Site. That enticement naturally captivated many would-be opponents and in 2002 the Municipal Assembly voted to approve the plan.

Fabricated justification
This was the first clear sign that the local authorities were not being forthright. They wanted to eliminate a building because of its size, but they needed some other reason for it. As it turned out, the possibility for Viana to become a World Heritage Site did not hold much merit and ultimately the city was not designated as one. But this did not stop what had been set in motion. They just needed to come up with a new, ulterior motive to try again.

So in 2003 the government ordered the municipal market, operating wonderfully for the previous three decades to be dismantled. Without any real reason to do this, a new low-rise apartment building was immediately built in its place.

Then, with no working market, the government claimed the “urgent necessity” of the Coutinho Building’s land in order to relocate the municipal market there. This was the artificially-fabricated, but legally-required, justification for a 2005 action of eminent domain, or the involuntary acquisition of private property by the state.

In reality, the alleged necessity was not only self-created by the government, but it was not necessary at all to move the market to the Coutinho Building site. The only matter connecting the building’s land to the market was that it was where the market once stood, before the local authorities specifically decided it was better to move the market to the other site.

Would the market be relocated here if the towering Coutinho building had never been built? The sad but honest answer is, probably not. There was no reason to destroy the municipal market in 2003. So the market’s relocation was merely a legal pretext, a false justification to hide the true motivations for an illegitimate action. Some local politicians wanted the building gone long before the municipal market was ever an issue, so moving the market was contrived to have a reason to take the building away from its owners.

It’s not a convincing reason either though. The municipal market was located only 100 meters from the Coutinho Building. So it was already located on an essentially equivalent plot that would have served just as well for any new market to be built. After shutting down the market, the government rapidly constructed an apartment building on that land, intentionally making it impossible for a new market to be built there. Now they would never consider tearing down this new, but smaller, building in order to replace the municipal market. That would be ridiculous! Instead, the larger Coutinho Building was the sole target. It was what supposedly needed to be torn down for a new market to exist.

This background of absurd events clearly shows the only real reason for doing any of this: to demolish the Coutinho Building simply because of its height. Why dismantle a perfectly good market and build an apartment building there, just to go next door and tear down a perfectly good apartment building in order to put the market back up? As nonsensical as this all sounds, the government found a potential way to take possession of the Coutinho Building real estate. But everyone familiar with this saga knows the ‘real reason’ that the Coutinho Building is being brought down has nothing to do with any market.

As the book “Rethinking European Spatial Policy as a Hologram” even describes, it is “the first instance of demolition being undertaken for aesthetic reasons”. Yet this real reason was never cited in the eminent domain declaration, which only stated the necessity of the land for use as a market. This sheds light on the government’s duplicitous legal stance.

But the way this has all come about is more than just legally erroneous. It also goes to a fundamental question of law and justice, to the extent of state power to forcibly remove someone from their home only because of its design. Faced with the undesirable and costly alternative of being embroiled in a long legal battle with the state, many owners reluctantly agreed to surrender their apartments, selling them to the government and departing. Thus, the government has acquired more than 70 of the units to date, through a combination of negotiation and litigation. The remaining homeowners, many which include elderly citizens who have lived in the building since it was built, came together to legally oppose the government’s actions. As the victims in all of this, they have been living in a self-described state of “anguish and uncertainty” ever since.

Moreover, it raises serious concerns about the administration of the Portuguese state. As Bernardo Barbosa, the director of one of Portugal’s oldest newspapers put it, for them to “play with our money, lie shamelessly, create a fait accompli in a premeditated and perverse way ... [when] everything was architected to bring down the Coutinho! .. At the very least, this situation suggests a Machiavellianism we thought had long passed” (published in the newspaper Público on 10/09/2005).

While some national politicians have also spoken out against this as being a “scandalous squandering of public money”, the drivers of it have just stated that the process has “past the point of no return”. Having no substantive arguments to support an untenable position, the question remains why this preposterous process should be considered “irrevocable”. The blame here rests as much with the national government, who have a majority-say in approving the actions, as the local authorities who concocted the scheme to begin with.

Over 10 years later, the building is still standing, for now. The legal case, challenging the government’s action, has worked its way through various tribunals and is now awaiting a final decision by the highest Portuguese Constitutional Court.

‘Corrupt’ process
As the government has said, the building is just “one step away” from being demolished. The residents naturally fear that this may be true even though considerations of political sincerity, common sense, economics and basic justice are on their side. It remains uncertain whether the Portuguese government has the legal authority to conduct such a taking, a provision of state power that makes sense for truly necessary public works, even in cases like this. Thus, the residents’ final hope rests in the expectation that an independent judiciary will see this for what it actually is and prevent a misguided, if not corrupt, process from going forward. The building may yet be saved.

The message sent to international investors, whom Portugal is so eager to attract, and more fundamentally to all Portuguese citizens, is already disastrous though: private property may be confiscated on such arbitrary grounds. Is it legitimate for the government to forcibly remove people from their property because despite being legally planned, approved and built, it later subjectively appears too big?

And the cost of this? It’s not only obviously economically unjustifiable, but an abominable waste. Portugal tried getting EU money for the expropriation, but it was rightly rejected. Nonetheless, in the early 2000s, public spending was not a large concern to many Portuguese politicians as disposable funds seemed readily available for such improvident schemes. Since then, times have certainly changed. With the eventual bailouts of Portugal, it seems Europe may have to (at least indirectly) foot the bill for this after all. And there is still talk from local politicians of securing European Community money for the new market project, now under the guise of an “urban rejuvenation” plan.

Let alone going against the intention and spirit of such generous support, it seems like a crime to engage in such unscrupulous means to achieve such a spurious end. The vote for Brexit was as much about economics as immigration, and unfortunately it is these sorts of outrageous actions that provide exit-campaigners with the ammunition to criticize the whole European system: why should the taxpayers of England, or France for that matter, have to financially support this nonsense?

This point is not a debate about austerity either. The money being outrageously wasted on this could be used to make a real difference in Viana do Castelo, a city which, like many in Portugal, has been seriously impacted by the recession. The cited costs of demolition and construction of the new market, at approximately €1 and €3 million respectively, pale in comparison with the overall costs of acquiring all the apartments, which the government does not talk much about. Probably because the countless millions needed to compensate all the owners is by far the most significant expense. And that would be public wealth that is simply erased when those apartments get destroyed. The government is literally buying the apartments just to tear them down! It comes as no surprise then that the government is criticised for incompetence when these are the policies they continue to pursue and support. Indeed, there is a social as well as moral responsibility that is being abandoned in this process.

At this point, the city is still in need of a municipal market. However, there are countless better alternatives that could be listed here. Indeed, of all the places one could select for a market, the land underlying the Coutinho Building is not only entirely unnecessary, but it is perhaps amongst the worst of choices. So now we await the ultimate judgment by the Constitutional Court on whether the project is not only wasteful and immoral, but ultimately unlawful. Either it will be allowed to go ahead or the government will have put the market someplace where it belongs. If justice prevails, the government could sell the apartments they already acquired and maybe even generate some profits by doing so. Finally, they could put all that money and their attention back to where it belongs as well, to the true public good.

By Monty Silley
Monty Silley is an Anglo-American Law Lecturer at the Bucerius Law School, Hamburg, Germany

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