Hernandez Torrales-711-711_paper

THE FIDEICOMISO DE LA TIERRA DEL CAÑO MARTÍN PEÑA:
An Instrument to Regularize the Relationship with the Land and to Overcome Poverty
HERNÁNDEZTORRALES,MARÍAE.
UniversityofPuertoRicoSchoolofLaw
LegalAidClinic
CommunityEconomicDevelopmentClinic:OrganizationandSelf-Management
maria.hernandez26@upr.edu
mehtorrales@gmail.com
Paperpreparedforpresentationatthe
“2016WORLDBANKCONFERENCEONLANDANDPOVERTY”
The World Bank - Washington DC, March 14-18, 2016
Copyright2016byauthor(s).Allrightsreserved.Readersmaymakeverbatimcopiesof
thisdocumentfornon-commercialpurposesbyanymeans,providedthatthiscopyright
noticeappearsonallsuchcopies.
Abstract
For decades, thousands of families living in public lands adjacent to the Martín Peña tidal channel in the
metropolitan area of San Juan, Puerto Rico, have pursued to regularized their relationship with the land
they built and have lived on for generations. As squatters at the beginning, these folks started their
communities by mid 20th century. They came from rural areas and settled at the outskirts of San Juan
surrounding the tidal channel. After nearly 80 years, they are found in the middle of the Puerto Rico
Financial District. At the same time, the channel is very contaminated, and constitutes an environmental
concern. The contaminated waters pose a public health hazard for the inhabitants of the communities.
The channel needs to be dredged. Nevertheless, what is supposed to be an environmental justice action
might as well turn into an involuntary displacement threat for the communities. After an extensive
participatory process, the communities devised, among other instruments, the Fideicomiso de la Tierra del
Caño Martín Peña. This instrument enables the communities to be the collective owners of almost 200
acres of land and allows the comprehensive development of their communities and the ecosystem
restoration without risking being displaced or gentrified.
Key Words
Martín Peña communities
Fideicomiso de la Tierra
Community land trust
Collective land ownership
ENLACE Project
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The Fideicomiso de la Tierra del Caño Martín Peña:
An Instrument to Regularize the Relationship with the Land and to Overcome Poverty
The work being done by ENLACE and the Fideicomiso to regularize
tenure for low-income squatters, employing a strategy that combines
community ownership of the underlying land with long-term leasehold
[surface rights] for individual families, has the potential for a wide
audience and wide applicability in other countries.
John Emmeus Davis, Partner
Burlington Associates in Community Development
I. Introduction
“Housing is a necessary of life”. Such statement
was made by the Supreme Court of the United
States of America in the case of Block v. Hirsch, 256 US 135 (1921). The realization of the most basic
right, being the enjoyment of a dignified life and health, gets truncated when we fall short of having a
secured and adequate housing. The vast majority of human rights declared by the United Nations General
Assembly in 1948, supposed that the person subject to such rights is sheltered. Having a dwelling place
makes us feel safe, both in relation to our personal integrity and the integrity of our belongings.
Furthermore, having a dwelling place enables the satisfaction of so-called economic, social and cultural
rights, which, as reported by Article 22 of the Declaration of Human Rights, are indispensable to the
dignity and the free development of personality.
Nevertheless, at present time hundreds of thousands of individuals and families not only lack any
type of housing, much less a formal or legal title. They live in houses built in land that belongs to others,
or in areas that are ecologically vulnerable and lacking of essential public services; such as potable water,
electric energy and sewer facilities. Such is the situation of a great number of families in Puerto Rico.
This analysis refers to approximately to 25,000 people, who as of this date live in seven communities
close to the Caño Martín Peña (Martín Peña channel) in San Juan, Puerto Rico’s capital city. They came
to this area close to eighty years ago and established themselves at the margins of the Caño Martín Peña
becoming a chain of slums in the metro area.
Right after the United States invasion in 1898, Puerto Rico’s economy change radically. Sugar
cane growing became the main item in agricultural business. Sugar cane business changed the economic
activity and the land ownership system. Almost all the land used for sugar cane growing became to be
owned by North American companies, thus much of the aggregates dwellers that used to live in the
Haciendas under the previous agricultural system, or the poor small farms owners who engaged in the
growing of crops other than sugar cane were displaced and forced to move to the towns urban areas
including San Juan. Liliana Cotto-Morales (2006, 27), a doctor in urban sociology and professor at the
University of Puerto Rico, stated that the new system of mainly cultivating sugar cane itself, and the
public policies that supported this economy, impoverished the already poor agricultural class. This gave
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way during this period and circa 1935, for the slums establishment in and around the limits of the Caño
Martín Peña, the Laguna San José (San Jose Lagoon), Puerta de Tierra, and the Canal San Antonio in San
Juan, Puerto Rico. (Juncos-Gautier, Rivera-Santana, et. al., 2001, 22)
The severity of this situation moved the Puerto Rico Legislature to approve the Ley sobre
Eliminación de Arrabales (Eradication of Slums Act), Law No. 264, May 14, 1945 (17 L.P.R.A. sec. 131 et
sec.) Explaining the motives in Article 2 the Law, (17 L.P.R.A. sec. 132) the legislator described in detail
the reality in which thousands of people lived in towns and cities of Puerto Rico. The Law states that
there were slums areas “composed of living quarters and structures that were unsafe, unhygienic,
unhealthy land, structures agglomeration and excessive numbers of such structures in relation with land
capacities, deterioration, defective distribution, poor ventilation, lack of illumination, absence of electric
power and sewer facilities, lack of adequate streets, all these post a threat to the wellbeing, security,
health and morality of the occupants and to the community in general.”
The Puerto Rico government
also declared, that the slums areas were growing constantly and so did crime and sickness.
This
constituted a threat to the health, security, morale and wellbeing of all citizens of Puerto Rico. It called
the attention of the excessive spending that such conditions impose on public funds, like crime
punishment and crime prevention, health care programs, public safety, fire prevention and control of
accidents.
After such definition of the slums areas, it made perfect sense for the government to declare a
public purpose the goal of eliminating such areas and justify the use of public funds for that purpose. The
government prohibited repairs on the living quarters in the slums areas. To enforce such, it created a
special entity of vigilantes to fulfill the prohibition. (Cotto-Morales, 2006, 27) It is a fact, according to
the records of the Puerto Rico Planning Board, that on the decade of 1940s, the slums were well
established alongside of the Caño Martín Peña, and the highest physical extension was achieved on the
decade of 1950s.
Professor Cotto-Morales (2006, 27) also reports that the slums gained their highest physical
extension during the decade of 1950s, even after the government restrictive measures, “the ongoing land
occupation continued on low land, flood prone areas, close to the sea and in other city areas. The
common denominators were lack of space, and unhealthy surroundings. In San Juan the residents of the
occupied land confronted the government measures to eliminate the slums. The occupants organized
local committees to improve the defense and the physical conditions of their communities.
They
requested from the government to provide services to urbanize the communities. Since the government
position was the elimination of such, the improvements were at best temporal.” As time went by, a
number of these informal settlements gave way to the formation of communities. With the growing of the
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urban areas, these communities are now located in the center of the metropolitan area.
For the
communities of the Caño Martín Peña, the case is that they are located right next to the Puerto Rico
economic district.
Such is the case of the communities that are alongside to the Caño Martín Peña. These
communities have been established in San Juan for a little more than eighty years, and because of their
perseverance, they have promoted in Puerto Rico a new model of community development, having as the
main goal the collective land tenure. This model allowed them to regulate their relationship with the land
where their dwellings lay, and allows their social and economic development. At the same time, being
the collective owners of the land, their goal of being protected from being involuntarily displaced or
gentrified should be accomplished. And there are reasons why the communities alongside the Caño
Martín Peña were ripe to take such paramount decisions. During the last fifty years, the lands of the
channel, with its advantageous location, were focus of various planning initiatives, both public and
private. As early as 1956, there was a proposal to reclaim the channel for conservation purposes, and
throughout the years there were proposals for highways, high cost housing projects, pedestrian and
bicycle paths. More recently, in 2000, the Puerto Rico Chamber of Commerce proposed the development
of a forest garden. (Comprehensive Development and Land Use Plan, 2007, 11-18) In almost all of these
proposals, the residents of the communities adjacent to the Caño Martín Peña were ignored. The proposal
then was to move the “shanty town” to another location without regard to social aspects, such as
community cohesion or the social capital that had been generated as a result of many decades of
coexistence and mutual aid.
II. The Caño Martín Peña Communities1
Beginning in the 1930s through the 1950s, the wetlands along the Caño Martín Peña became
home to a massive migration of rural families looking for a way out of extreme poverty worsened by
catastrophic hurricane events, the Great Depression and changes in Puerto Rico economy. See Figure 1.
Whilst most of the slums or shantytowns formed alongside the channel during those decades were
eradicated in the 1970s and 1980s, some of the communities have endured the surges of urban
redevelopment along the 3.75-mile long, natural tidal canal. In average, actual residents have lived in the
area since 1975. For many families this has been their only place of residence and many of their
ascendants were among the settlers. Even more, some have expressed that they had not taken steps to
obtain a house or had never considered moving to another area, despite the critical lack of essential
services, such as water and sewer infrastructure, and appropriate garbage disposal (Estudios Técnicos,
1
Information provided by the Corporación del Proyecto ENLACE del Caño Martín Peña.
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2003). For instance, approximately 3,000 houses discharge raw sewage in the Martín Peña channel that
reverts to the streets, homes and schools patios during very frequent flooding events. (USEPA, 2015)
This condition represents a public health hazard, since studies have found that there were 2,000,000
colonies of fecal coliform per 100ml., among other contaminants that have been detected in
concentrations of concern. (Font, USEPA, 2015)
According to the 2010 US Census, the population density of the communities settled along the
Caño Martín Peña is of 22,318 inhabitants per square mile2, the highest in Puerto Rico. In 2002, 19.2% of
the residents were immigrants from the Dominican Republic. Home ownership deviates here from the
norm in Puerto Rico. Whilst 50.4% of over 2,000 housing units were resident owned, 49.5% were rented
occupied. In Puerto Rico, only 21.1% of the housing units are renter occupied. In some neighborhoods,
seven out of ten households spend more than 30% of their income in housing costs. Close to 65% of the
households live under the poverty level, albeit 48.4% of the population of age 16 and older participates in
the labor force, compared to 46.4% island wide. The unemployment rate also hovers around 1% less than
for the island. In 53.7% of the households, the main source of income is salary. Only 5.5% of the labor
force participants own business.
According to the Population and Housing Census Report (Estudios Técnicos, 2003), community
residents appreciate peace and quiet, and the good relations with their neighbors. They also value their
physical location and easy access to public transportation and other public services. On the other hand,
respondents considered the social and environmental problems the most unpleasant aspects. Among
social problems, they bear drug addiction, crime, homelessness and lack of police protection.
Environmental problems noted were serial flooding, noise pollution, odors, land pollution, overcrowding
and inadequate infrastructure, among others. From their testimonies, we note how these communities,
with their strengths and weaknesses, have built themselves both physically and emotionally in their
environment. Then, any plan for the rehabilitation of the area should therefore seek the support of its
residents in advance. Whatever the main object of the proposed plan, it cannot result in the disappearance
or displacement of the communities or the social patterns that are part of the life and experiences of these
communities and its inhabitants.
III. Toward the Regularization
The grievances of the communities regarding living conditions in the area have been, for decades,
a thorn on the side of changing governmental administrations. Remedies have been implemented as the
land becomes ripe for redevelopment that end up displacing thousands of families. Therefore, there was a
2
In 2014 the population density was informed to be 28,300/mi2
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real concern among community leadership when the government in 2002 announced its plans for the
dredging of the canal. The Martín Peña channel is an important component of the San Juan Bay National
Estuary that connects the San José Lagoon with the San Juan Bay, the principal economic artery in Puerto
Rico. See Figure 2. Nevertheless, its eastern segment can no longer achieve such important function. Its
width, which used to be between 200 and 400 feet, has been reduced to 2 or 3 feet in some areas; and its
depth has been reduced from around 8 feet to a few inches, as a result of the informal settlements and the
need to create earth to accommodate the dwellings for the new inhabitants. The prospect that the
dredging of the channel and ensuing redevelopment projects would eliminate the communities along the
canal, sparked and unparalleled public participation process. We must to keep in mind that besides the
constant floods and the dire conditions of the canal waters, the greatest concern of a large number of
community residents was lack of ownership or valid title of the land, and involuntary displacement due to
the market forces.
Today, the redevelopment project of the Caño Communities is being spearheaded by the
Corporación del Proyecto ENLACE del Caño Martín Peña (ENLACE), and the G-8, Grupo de las Ocho
Comunidades Aledañas al Caño Martín Peña, Inc. (G-8), a grassroots group that coalesces thirteen
community organizations from the eight communities adjoining the canal: seven neighborhoods grouped
by the Fideicomiso de la Tierra and the Península de Cantera.3 See Figure 3. More than 700 meetings,
workshops, round tables, and training sessions were held by ENLACE and the G-8 to produce the
Comprehensive Development and Land Use Plan for the Caño Martín Peña Special Planning District.
This comprehensive planning tool was adopted by the Puerto Rico Planning Board and was recommended
for the approval of the Governor of Puerto Rico in 2007. This effort also yielded a bill that turned into
groundbreaking legislation; that is, Ley para el Desarrollo Integral del Distrito de Planificación Especial
del Caño Martín Peña (Law for the Comprehensive Development of the Caño Martín Peña Special
Planning District), Law 489 of September 24, 2004, as amended (23 L.P.R.A., sec. 5031, et. sec.). By
means of Law 489-2004, the Fideicomiso de la Tierra del Caño Martín Peña, the community land trust,
was created in perpetuity. Also, this piece of legislation is the organic law for the Corporación del
Proyecto ENLACE del Caño Martín Peña, a quasi-public corporation with a limited life of 25 years,
being 30 years the most.
ENLACE was charged with working in partnership with the organized
communities, the public and private sector to attain socioeconomic and environmental justice, promote
healthier and safer communities and address major environmental degradation issues within the Caño
3
The eight communities that comprises the G-8 are: at the North of the canal, Barrio Obrero, Barrio Obrero Marina,
Buena Vista Santurce, and the Península de Cantera; at the South of the canal, Israel-Bitumul, Buena Vista Hato
Rey, Las Monjas and Parada 27.
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Martín Peña communities. Also this effort resulted in the designation of the Caño communities as a
Special Planning District by the Puerto Rico Planning Board.
Whilst Law 489-2004 regulates all the actions to be taken by ENLACE to fulfill the Caño
communities redevelopment and the dredging of the channel, the Fideicomiso de la Tierra is governed by
the Reglamento general para el funcionamiento del Fideicomiso de la Tierra del Caño Martín Peña
(General Regulations for the Operations of the Caño Martín Peña Community Land Trust) (2008) a
document also framed using the participatory methodology that encompasses all the stages of this project.
This document establishes the relationship between the Fideicomiso de la Tierra and ENLACE. Both
entities work toward the same goals and with the same values. The community land trust management, as
established in its General Regulations, is grounded in principles of self-management and community
development. The General Regulations also enable the effective use and administration in perpetuity of
lands designated for the community land trust for the benefit of the residents of the communities within
the Special Planning District. In the long term, the Fideicomiso de la Tierra is an instrument to overcome
economic poverty since it is meant to recapture the increase in land value to be reinvested in the
communities and its inhabitants. As long as both organizations coexist, ENLACE will retain primacy in
governance. Nevertheless, both the Fideicomiso de la Tierra and the G-8 shall have a protagonist
participation in decision-making regarding the Special Planning District and the Comprehensive
Development Plan through a formal process, which is also defined in the General Regulations.
IV. The Instruments for Redevelopment and Regularization
As Edésio Fernandes (2011, 6) asserted, “[r]ather than opposing legitimacy and legality, the
challenge is to construct a legitimate and inclusive legal order that respects the informal processes of
distributive justice reflected in the daily practices of these informal settlements.” In the case of the Caño
communities, more than eight hundred community activities, led by ENLACE and heavily supported by
the residents of the communities led by the G-8, laid the foundations for the creation and approval of the
new legal instruments that would be used to overcome the environmental, infrastructure, housing and
socio-economic problems that affect the residents of the Special Planning District. Examples of these
activities are visits from house to house, community training workshops, process evaluation activities,
exchanges with other communities, and community meetings held in schools and universities’ courtyards
and halls, in churches, parks, streets and other public spaces of each community, among others. This
level of community participation allowed residents to intervening effectively in the drafting of the
Comprehensive Development Plan, which is the guide to bring to optimal state the physical and
environmental conditions of the communities, and to declaring that the Fideicomiso de la Tierra, under
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the community land trust model adapted to their very special needs, was their best option to bring to an
end the constant threat of the involuntary displacement of the communities.
The formulation and
adoption of both instruments was a process of much deliberate work that began late in 2001. Today, these
instruments have proved to serve well to the communities, since they are accomplishing what they were
meant to achieve in the implementation and development process.
This reflective and deliberative
process also empowered the communities and led them to consider alternatives to land tenure totally
different from the traditional model that prevailed in our legal system, which is the private property. Yet,
since the conception, development and implementation of the instruments are closely linked, the
attainment of their objectives depends on the achievements of each instrument individually. (HernándezTorrales, 2007, 803).
A. Fideicomiso de la Tierra del Caño Martín Peña (Caño Martín Peña Community Land Trust)
One of the distinctive characteristics of a community land trust is that it removes property from
the speculative market. Then it returns the property for individual use, while balancing the legitimate
interests of the individual user and those of the surrounding community through a just allocation of
equity. (Davis, 2010, 368-369) The Caño Communities evaluated this model in the light of their own
goals of development without displacement, and they found it excellent to achieve such objectives.
Through the General Regulations, they adapted the model to their particular and distinctive necessities.
The Fideicomiso de la Tierra del Caño Martín Peña, the community land trust, is the land tenure model
adopted by the Special Planning District inhabitants to avoid involuntary displacement, and to secure and
protect the permanence and integrity of their communities. Moreover, it is an instrument that will
maintain, in perpetuity, community cohesion that will foster socioeconomic growth in the almost 200
acres of land,4 and continuity in the generation of social capital, both among Special Planning District
communities, and between such communities, the surrounding communities and the city.
Initially the assets of this community land trust consisted of public lands that were comprises
within the Special Planning District and that were transferred by virtue of Law 489-2004 to ENLACE
with the specific mandate to create with them the Fideicomiso de la Tierra. These public lands house the
homes of thousands of community residents whose lack of a valid title over the land prevented them from
aspiring to the economic resources that would enable them to maintain secure and decent housing. On its
part, the Fideicomiso de la Tierra is charged with the responsibility of managing and safeguarding all the
lands for the benefit of community residents. (Law 489-2004, 23 L.P.R.A. sec. 5048)
4
The Special Planning District in its totality comprises almost 400 acres of land.
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The primary objectives of the Fideicomiso de la Tierra are to contribute to solve the problem of
ownership for the Special Planning District residents; to tackle with fairness the physical displacement of
low-income residents that would result from urban renewal projects and the dredging of the channel; to
secure affordable housing within the Special Planning District; and to acquire and own land in the Special
Planning District for the benefit of the community, which increases local control over the land and
prevents decision-making by absentee owners. Moreover, the Fideicomiso de la Tierra is seen as an
instrument for overcoming poverty, as it will facilitate the participation of the community residents and
the private sector strategic investment in the Special Planning District, in order to increase land value and
so that, eventually, residents of the communities may benefit fairly from the increase in value through
participation bonds. The community land trust will also facilitate the reconstruction and appraisal of
urban spaces and will encourage reinvestment in the Special Planning District through the establishment
of a revolving fund with such purposes. These and other additional objectives are established in Article
22 of Law 489-2004 (23 L.P.R.A. sec. 5048).
Said legal disposition also orders that the Fideicomiso de la Tierra will retain ownership of the
land in perpetuity and may only sell or transfer the rights to the buildings. To meet this objective, the
Fideicomiso will grant surface rights to the residents with a right to be inherited. The surface rights
deeds, authorized by a licensed lawyer, encompass the rights, responsibilities and restrictions necessary to
maintain control over the land and ensure that it is used for the benefit of the communities. This legal
document then is registered at the San Juan section of the Puerto Rico Property Registry in order to
recognize and to publish each resident's title to the surface rights and the ownership of their individual
housing structure. Among other important benefits, this instance will facilitate access to credit and new
financial opportunities for the communities’ residents, members of the Fideicomiso de la Tierra. The
Fideicomiso de la Tierra is also empowered to grant long-term leases, according to what is best for the
administration of the land and the development of the communities.
To complement the legal mandate, the General Regulations established for the administration of
the community land trust, also rules the management of the land, the participation of ENLACE and other
public and private entities in the process of identifying lands that are eligible to be part of the Fideicomiso
de la Tierra, and the appointment of the Board of Trustees. The Board of Trustees is responsible for
overseeing the community land trust property and administer it for the benefit of the communities that
comprise the Special Planning District. The General Regulations also ensures that community residents
share this responsibility by having a place on the Board of Trustees, through elected representatives of the
communities and others residents delegated by the G-8. Six out of the eleven trustees should be residents
of the communities. (Reglamento general, 2008, 46-47)
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At the present, there are a number of challenges for this Fideicomiso de la Tierra. As estimated
by ENLACE, by the year 2019, approximately 1001 households will have to be relocated; and 636 new
housing units, 452 for owners, should be built within the Caño Martín Peña Special Planning District by
the end of year 2018. The housing related costs over the next 10 years are estimated in $220 millions, for
which the design of innovative financial strategies will be much needed. (Corporación del Proyecto
ENLACE, 2013).
B. Plan de Desarrollo Integral del Distrito de Planificación Especial del Caño Martín Peña
(Comprehensive Development and Land Use Plan for the Caño Martín Peña Special Planning
District)
The Comprehensive Development and Land Use Plan is the outcome of the participatory
planning process in which the residents of the Special Planning District translated their development
vision for each of the seven communities into concrete steps. See Figure 4. Among other important
aspects, this Comprehensive Development Plan describes the historical and regional context of the
communities, and performs a diagnostic analysis of the District that includes the state of infrastructure,
transportation, the urban structure, housing needs, and socioeconomic aspects.
This document also
provides the vision, goals and guiding policies for the holistic development of the communities. These
goals and core guiding policies were enriched by the outcomes of the participatory planning process. On
the environmental aspect, the Plan specifically addresses the rehabilitation of the channel through its
widening and dredging, and it creates boundaries as a way to establish a conservation strip on its banks.
From the socioeconomic perspective, the Comprehensive Development Plan fosters better quality of life
for the residents of the communities, emphasizing public health issues, safe and sanitary housing, basic
services, employment, micro businesses development, access to increased land value created by the
rehabilitation of the site activities, and the recovery of the tourism, recreational and educational potential
of the Caño Martín Peña. As a result, the communities at the Special Planning District will be recognized
for their economic contributions, and will be integrated into the urban fabric of the city, while retaining
their own character and identity.
The institutional character of the goals and guiding policies of the Comprehensive Development
Plan promotes the continued participation of residents in all decision-making process. For this, the
authority and strengthening of communities will be encouraged, as will the continuity of leadership
training and the growth of grassroots organizations. Each of these goals and guiding policies were
developed during the participatory process previously described and constitute, as of today, the guide for
the process of rehabilitation and community development in their environment.
In addition, the
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Comprehensive Development Plan contains the general strategies for development of the physical space,
paying close attention to the dredging of the Caño Martín Peña and the protection of its conservation
strip, the flooding situation, the condition of the soil, and disposal of solid waste in the area. It also
addresses issues related to the construction, renewal and installation of infrastructure for land
development and the provision of basic services to residents; it lays out transportation strategies;
establishes regulatory guidelines for urban reform, housing needs, and strategies to promote social capital
and economic development, among others. It is important to note that each of the general elements in the
Comprehensive Development Plan is worked out in detail in order to apply them to each of the seven
communities according to their needs.
C. Corporación del Proyecto ENLACE del Caño Martín Peña (ENLACE Project Corporation)
A project of this scope, besides requiring a Comprehensive Development Plan such as the one
developed through the participatory planning process and ensuring its permanence through the model of
the community land trust agreed upon by the residents, also requires an entity to take on responsibility of
leading the work for the rehabilitation of the Caño Martín Peña Special Planning District. The creation of
this entity necessarily had to follow the same participatory planning paradigm that had taken place so far.
That is how, through this process of community involvement, Law 489-2004 was drafted which is the
organic law for the Corporación del Proyecto ENLACE del Caño Martín Peña (Caño Martín Peña
ENLACE Project Corporation).
Law 489-2004 endowed ENLACE with the powers and authorities necessary to ensure the
implementation of the Comprehensive Development Plan and the integration of the communities into the
urban fabric of the rest of the city in a dignified way. The public policy established by Law 489-2004
provides for the effective participation of community-based organizations representing the Special
Planning District residents. (Article 3, 23 L.P.R.A. sec. 5032) The statute mandates that the G-8 shall be
responsible for coordinating the participation of the Special Planning District residents. The model of
participation promoted by Law 489-2004 is based on twelve principles, the first of which is selfmanagement with community empowerment and strengthening. It is also based on the alliance between
the communities, the public sector, and the private non profit or for-profit sector; on supporting economic
development and social capital development in the community as an integral approach to the problem of
economic poverty and marginality; on a culture of conservation, sensitivity and respect to the Martín Peña
channel as an ecological resource; on avoiding involuntary displacement and the viability of relocation on
site; on maintaining and strengthening community cohesion; on using public investment in the Special
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Planning District to create employment and business activity for residents of the communities; and on
securing the permanence of the communities in the long term.
To achieve the objectives set out in Law 489-2004 and in the Comprehensive Development Plan,
the Law itself establishes the mechanisms that make it viable. ENLACE is one of these mechanisms.
This is a quasi-public corporation with a limited life of 25 to 30 years. Its Board of Directors is composed
of representatives from the public and private sectors, as well as members of the communities
surrounding the channel. The community representatives are selected from lists provided by the G-8 to
the Governor of Puerto Rico and the Mayor of San Juan, and together, they represent 45 percent of the
Board of Directors membership.
Besides being responsible for implementing the Comprehensive
Development Plan, ENLACE also has to facilitate the socioeconomic development of the Special
Planning District. Law 489-2009 authorizes the establishment of a Registry of Business and Bidders as
one of the tools to attain this end; and a community business incubator had been implemented in the
Special Planning District to support residents of communities as they create their own micro businesses.
In order to avoid involuntary displacement, Article 20 of Law 489-2004 (23 L.P.R.A., sec. 5049) stated,
“relocation alternatives will be designed through active and timely citizen participation.” Following this
principle, and the policy established in the Comprehensive Development Plan about relocations,
ENLACE, along with the Relocation Community Steering Committee (that is comprised of community
residents), conducts relocation workshops for families who are likely to be affected by the infrastructure
projects. The experience so far has been that most of the families chose to be relocated within the Special
Planning District and became members of the Fideicomiso de la Tierra.
The redevelopment planning process and its implementation has required ENLACE to engage
and coordinate joint activities with community organizations and to enlist the support of other
government agencies and representatives, private nonprofit and for-profit entities, and legislators as well.
This is so, because all the benefits that the accomplishment of the will bring. As informed by ENLACE,
in terms of public health, the dredging of the channel will improve environmental degradations conditions
that directly affect the well-being of 25,000 inhabitants, with estimated savings of $38 millions over 50
years in health related expenses associated to studied diseases and population. In terms of environmental
restoration of the channel, major water quality and habitat improvements, as well as ecological uplift,
increased biodiversity, and a new hotspot for fisheries are expected throughout 7,605 acres of the San
Juan Bay National Estuary, home to several endangered species; also, 80% of the Estuary will be
reconnected. The dredging of the channel will also reduce flood related risks, considerably increases
public safety and reduces the costs of emergency management, currently estimated in $5.8 millions per
event. In terms of recreation and tourism, a navigable Caño will create a direct aquatic connection among
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Old San Juan, the Convention District, the Financial District and the International Airport, among others.
This and other activities will generate economic development in the communities adjacent to the Caño,
since ecotourism and fishing activities become feasible and the value of the urban land throughout the San
Juan Bay National Estuary and that belonging to the Fideicomiso de la Tierra del Caño Martín Peña
increases. During the construction only, preliminary estimates indicate the creation of 1,000 direct and
indirect jobs. (Corporación del Proyecto ENLACE, 2014)
V. Conclusion
As millions of inhabitants of poor communities around the world struggle every single day to
improve their living conditions, more creative solutions are being presented for other poor people to
evaluate and consider. The new paradigm established by the Communities of the Caño Martín Peña to
regularize its own informal settlement is an important one worth of consideration. From having no rights
to the land, no secure title at all, when it came time to decide, instead of deciding individually, they chose
to bet on and trust the collective welfare. Fernandes (2011, 31) affirmed that: “…achieving sociospatial
integration requires a broader set of strategies and measures, ranging from promoting urban and
environmental sustainability to strengthening local communities and empowering women” and this is
exactly what the Caño Communities are doing. The very new aspect added to the Fernandes’ sociospatial
paradigm is the Fideicomiso de la Tierra del Caño Martín Peña, the community land trust.
This
instrument puts in the hands of the members of the communities almost 200 acres of land in the middle of
the metropolitan area de San Juan. The trusted lands will benefit the communities by making possible the
implementation of what has been already envisioned in their Comprehensive Development Plan and will
ensure affordable, safe and decent housing for low income people within the Special Planning District in
perpetuity. With the land under their control, the community is also enabled to make feasible the muchneeded urban redevelopment and all the infrastructure projects to make viable the Caño Martín Peña
ecosystem restoration project. Also, land being the most expensive and limited resource, it is an asset that
the community will contribute to the already discussed and authorized rehabilitation projects. On the part
of each individual inhabitant of the communities that has no title to the land beneath their houses, the
Fideicomiso de la Tierra will recognize, with a valid title, the right to the surface and the individual title
to the home. The legal document recognizing such important rights will be presented to the Property
Register for the purpose of being recorded and published.
The paramount decision taken by the Caño communities brought with it a myriad of
responsibilities. No only do they have 200 acres of land to administered, but since they own the land,
they have to work hand in hand with ENLACE to obtain financial resources needed for the projects. The
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implementation of the Comprehensive Development Plan had in 2004 an estimated value of $700 million,
including the ecosystem restoration project. This has led to the development of the capabilities of the
community leaders and other community members that make-up the G-8 to be able to lobby at the Puerto
Rico Legislature, to actively participate in important meetings with government representatives, both state
and federal, including the Governor of Puerto Rico, members of the U.S. Federal Congress, and the
Mayor of San Juan; also to meet with foundations representatives and submit grants proposals, and to
conduct research and ask for non competitive funds. They are also participating in committees and
making decisions about everything that affects the Special Planning District and its inhabitants. They are
not only empowered to speak up, but also to present proposals and solutions.
Having the collective ownership of the land, the Caño communities turned an engineering project
into a comprehensive development endeavor that sparked the active participation and the social and
economic development that affect positively the life of near 25,000 people. At the same time this project
has created great opportunities both now as well as for future generations. As stated by Fernandes (2011,
31) this project is centered in the right of all to live in dignified conditions and participate fairly in the
opportunities and benefits created by urban development.
Page 15
References
Corporación del Proyecto ENLACE del Caño Martín Peña. (2014). Fact Sheet: Caño Martín Peña
Environmental Restoration.
Corporación del Proyecto ENLACE del Caño Martín Peña. (2013). Fact Sheet: Housing Issues.
Cotto-Morales, Liliana. (2006). Desalambrar, Colombia: Editorial Tal Cual. Panamericana Formas e
Impresos S.A.
Davis, John Emmeus. (2010). Editor. The Community Land Trust Reader. Cambridge, MA: Lincoln
Institute of Land Policy.
Estudios Técnicos, Inc. (2003). Análisis de Resultados Censo de Población y Vivienda. Proyecto
ENLACE del Caño Martín Peña. Informe Final.
Fernandes, Edésio. (2011). Regularization of Informal Settlements in Latin America, Policy Focus
Report, Lincoln Institute of Land Policy, Cambridge, MA.
Font, José. (2015). Las aguas urbanas del Caño Martín Peña. USEPA (United States Environmental
Protection Agency)
See http://www.epa.gov/sites/production/files/2015-10/documents/martin_fact_sheet.pdf
Hernández-Torrales, María E. (2007). El Fideicomiso de la Tierra del Caño Martín Peña: Colorario de
un modelo de participación comunitaria en marcha. 68 Rev. Col. Abog. PR. 68(4): 794-817.
Juncos-Gautier, María A., Rivera-Santana, J., Lara, J., Navarro, G., Cox, A., Navarro, E., Cruz, R., and
Catalá-Miguez, F. (2001). Puerto Rico en ruta hacia el desarrollo inteligente. Recomendaciones para
detener el desparrame urbano en el Área Metropolitana de San Juan. Estudios Técnicos, Inc. y el Centro
de Estudios para el Desarrollo Sustentable de la Escuela de Asuntos Ambientales, Universidad
Metropolitana. Informe final.
See: http://www.suagm.edu/umet/cedes/pdf/informe_final.pdf
USEPA (United States Environmental Protection Agency). (2015). Urban Waters Federal Partnership.
See http://www.epa.gov/urbanwaterspartners/cano-martin-pena-martin-pena-channel-puerto-rico
Laws of Puerto Rico
-Ley para el Desarrollo Integral del Distrito de Planificación Integral del Caño Martín Peña, Ley 489 de
24 de septiembre de 2004, as amended. 23 L.P.R.A., sec. 5031 et. sec.
-Ley sobre Eliminación de Arrabales, Ley Núm. 264 de 14 de mayo de 1945, as amended. 17 L.P.R.A.
sec. 131, et. sec.
Regulations
-Corporación del Proyecto ENLACE del Caño Martín Peña. 2007. Contexto Regional e Histórico. Plan
de Desarrollo Integral del Distrito de Planificación Especial del Caño Martín Peña. Cap. 11:11-18.
See: http://www.dragadomartinpena.org/technical_page.html
-Corporación del Proyecto ENLACE del Caño Martín Peña. 2008. Reglamento general para el
funcionamiento del Fideicomiso de la Tierra del Caño Martín Peña.
See: http://app.estado.gobierno.pr/ReglamentosOnLine/Reglamentos/7587.pdf
United States Supreme Court Cases
Block v. Hirsch, 256 US 135 (1921).
Figures
Figure 1 – Historical Development of the Caño Communities in its East segment.
(Provided by ENLACE Corporation)
Figure 2 – (Yellow Sector) Connection between the Laguna San José and Bahía de San Juan.(Provided by ENLACE
Corporation)
Figure 3 – The eight communities that comprise de G-8. The seven communities inside de red mark are
the ones that integrate de Fideicomiso de la Tierra del Caño Martín Peña. Península de Cantera has its
own redevelopment plan. (Provided by ENLACE Corporation)
Figure 4 – Diagram of the Comprehensive Development and Land Use Plan. (Provided by ENLACE Corporation)
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Figure 5 – Instruments created through an extensive participatory process to guide and to regulate the
redevelopment of the Caño Communities. (Provided by ENLACE Corporation)
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