McDonald’s and BANTERRA legal cases continue
By Antonio De Jesús Aguado
“Because of bad decisions made by the administration headed by Luz María Núñez Flores in 2009–2012, the current local government received a notification nullifying the suspension of construction in the building located at Canal 16, which could allow McDonald’s to open,” said Ali Patlán Matehuala, legal coordinator of the local government. He also announced that the local government is waiting for a similar decision in the BANTERRA case. Following this statement, the former mayor, Lucy Núñez, responded with advice to the current administration: “Stop complaining and get to work; now the municipality is your responsibility.” She also made it clear that the franchise will not be opened because there is a juicio de lesividad (a trial in which the local government accepts its error but gives an explanation of why the franchise cannot be opened) in progress, a legal proceeding started by the municipality.
The McDonald’s case
In July 2011, Arcos Sercal Inmobiliaria de S. de R.L de C.V., through its legal representative, Alfonso Martínez, started proceedings to obtain permission for the installation of a restaurant in the historic center. The construction permit was granted by Eduardo Arias, then director of the local Urban Development Department, without authorization from the city council. On November 25, signs with the phrase “Obra Suspendida” (Suspended Work) were placed on the building. Manuel Rosas, who was city councilor in the administration 2009–2012 and president of the commission of Urban Development, told Atención that the legal representative of Arcos Sercal misled Arias because he did not state that the permit would be for a franchise. “Permission for the construction and operation of a restaurant was requested, although it was never mentioned that it was for a franchise. Arias granted permission for building,” said Rosas. Later, when officials learned that the permit was for a McDonald’s fast-food franchise in the historic center Arias canceled the permit. “Article 2, Part 33 of the regulations for permits for new businesses in the municipality states that the installation of franchises is prohibited in the historic center,” said Rosas.
When the company received notice that construction must be halted, a complaint was brought by McDonald’s before a municipal judge, and at the same time the municipality began a juicio de lesividad. Luz María Núñez commented that an agreement published in 1982 states that the installation of franchises is forbidden in the historic center. “Exercising our right, and based on the 1982 agreement, we have the necessary arguments to accept that the authorization from the Urban Development Department should not have been given and to cancel that decision,” commented Núñez.
According to Núñez, the juicio de lesividad was started by her administration, which accepted that the permit should have not been granted, primarily based on the 1982 agreement and also because it affects the public interest (many organizations protested against the franchise, and Núñez herself was against the opening). “That process, which has not been resolved, was started and now it is the responsibility of the current authorities to keep working on it,” said Núñez. The former mayor also commented that the nullifying judgment issued by the municipal judge only cancels the revocation of the building permit, but she made it clear that Mc Donald’s cannot open until the juicio de lesividad is resolved. “It is the responsibility of the current government to follow that trial, and we really hope that it is settled in favor of the sanmiguelenses who are against the opening of McDonald’s,” Núñez said.
The BANTERRA case
According to Núñez, one of the greatest needs in this municipality is housing. For that reason, during her administration the municipal government looked for ways to develop low-cost housing. In December 2011, with eight votes the city council agreed to a change of land use from forestal (forest) to housing to pave the way for the development “Lomas de Atotonilco,” which was to be located on the road to Dolores Hidalgo near the Santuario de Atotonilco in a paleontological zone. This change of land use would allow to the company BANTERRA to build 8,000 houses, on the condition that BANTERRA hand over to the city council 18 different documents in a term of 20 weeks.
In a regular city council session held May 29, 2012, the members decided to cancel the land use change for the Fraccionamiento Lomas de Atotonilco because the developer did not guarantee the treatment of waste water or a potable water supply. BANTERRA also did not plan for increased traffic and never presented documents issued by UNESCO or the INAH against or in favor of the housing development. Mayor Núñez, who declared herself the main promoter of housing in the municipality, said that it was a shame that BANTERRA did not fulfill the requirements.
After Patlán’s statements on this matter, Núñez commented that when the municipality received all the documentation from BANTERRA for developing Lomas de Atotonilco “some citizens contaminated the directives of UNAM and INAH with lies, saying that the housing developing would affect the paleontological zones declared by the UNAM.” Despite that information, the local government granted the change of land use, which was revoked later.
Núñez also commented that she has always been in favor of creating affordable housing and said that when her government canceled the granted permit “BANTERRA had the right to bring a lawsuit before a state judge, because they did not accept the decision of the local government, since the paleontological zone was not being affected.” Núñez said that currently the company has the necessary documents to prove that the paleontological zone is not within the area of planned development and also said that the intention was to develop 8,000 houses over a period of 10 or 15 years, not in a short time frame as those opposed to the project declared. “They would begin with 1,500 or 2,000 houses and the development would grow little by little. There would be sources of employment for sanmiguelenses, schools and more,” said Núñez. She always supported this project and said, “I always asked them not to believe in the lies of those people, but we must wait for the judge’s response,” and she made it clear that if the judge rules against the local government “BANTERRA will be developed in the city for the sanmiguelenses’ benefit.”
The legal coordinator of the local administration, Patlán, declared that in the next 15 days the new administration will start legal proceedings before a state judge, hoping to overturn the local judge’s ruling, and so McDonald’s will not open in the short term. He also commented that if the local government does not receive a resolution in its favor from the state judge they still have the recourse of a federal tribunal. Patlán said that he does not know the position of the local government on the opening of the franchise but said the administration is against the construction of Lomas de Atotonilco and they are still working on that case.