O estudo prévio de impacto de vizinhança e sua exigibilidade para o exercício do direito de construir quando da criação do condomínio edilício à luz da Constituição

Abstract

This study aims to highlight the previous study of neighborhood impact as an urban policy instrument able to conform the private autonomy of the real estate developer in the exercise of the right to build mixed-property condominium in the constitutional legality. What justifies the debate is the need to harmonize, in a risk society, the freedom to build mixed-property condominium protection and no degradation of the urban environment, managing risk and planning the use and enjoyment of environmental resources, presenting an instrument of urban policy that combines free enterprise of the real estate developer and urban environmental protection as a goal. Accordingly follows the issue of the present study: what is the urban policy instrument that can conform the private autonomy of the real estate developer in the exercise of the right to build mixed-property condominium to constitutional legality? To answer this question we sought to: foreshorten the history of legal and economic aspects in the production of mixed-property condominium; relate the principle selective admission and typicality in rem to distinguish the mixed-property condominium as kind of real right; identify space for setting the contents of mixed-property condominium by real estate developer in enabling, institution and organization; emphasize the constitutional legality as a hermeneutical method; identify the methodological assumptions of constitutional legality; identify constitutional values that radiate in exercise of the right to build mixed-property condominium in the city; distinguish the contemporary notion of neighborhood; underline the legal discipline of previous study of neighborhood impact; and identify the contents of the research factors of previous study of neighborhood impact, relating them to the construction of mixed-property condominium. The research had a quantitative and qualitative approach in the treatment of data collected in censuses and research reports, as stratified samples and accessibility of the universe surveyed, using the descriptive method procedure, with the design bibliographies and documents pertaining to the topic. The results showed that the mixed-property condominium building may cause impacts in the vicinity; the previous study of neighborhood impact is the urban policy instrument necessary to conform the private autonomy of the real estate developer, in exercise of the right to build mixed-property condominium, constitutional legality; that to require it depends on municipal legal regulation; and that this regulation is low among Brazilian municipalities.