Sunday, March 2, 2008

"Dogging the developers: neighborhood group presses on"

(Published March 1, 2008 in The Guadalajara Reporter)

In the center of the Zapopan’s Colonia Jardines del Sol, not far from several elementary schools and across from rows of multi-car houses on modern, palm-shaded Wisteria Lanes, is the site of the old Motorola plant and the current epicenter of a legal and environmental nightmare.

The SSC Inmobilaria group plans to build La Ciudadela, a commercial center with five luxury apartment towers, on the former factory site. The mega-project would boost the population density of the neighborhood by 20 percent. Jardines del Sol's neighborhood association, headed by German-born musician Ludger Kellner, is vehemently opposed to the project and is fighting tooth and nail to put a stop to the construction.

The battle has been going on for some time; The Guadalajara Reporter covered the story last August when Kellner’s legal status in Mexico was threatened by an anonymous complaint to the regional Immigration office, believed to be filed by someone whose interests were aligned with La Ciudadela project.

“That was scary for other foreigners who could see that even if you are legally living in the country, some financial or political interests might try to harm you with the pretense that you’re doing something illegal,” Kellner commented in a recent interview.

The complaint didn’t prosper and Kellner has continued his battle with SSC. According to Kellner, the current owners of the landsite are guilty of serious environmental violations, punishable by jail time. In a press conference last week, Kellner and other neighborhood advocates renewed their promise to prove the owners are constructing on contaminated land.

For a time, legal procedures ruled in favor of Jardines del Sol’s residents. In November of last year, Zapopan’s municipal government resolved an initial complaint the neighborhood association had filed in May; on November 23, 2007, the Ayuntamiento de Zapopan shut down the building site pending environmental evaluation.

The neighborhood’s own survey of the site’s surrounding area showed nearby residents suffered from a ten percent higher propensity of symptoms associated with industrial toxins, such as respiratory and nervous system damage.

Subsequently, the building company lost every appeal through to the Mexican Supreme Court. SSC Inmobilaria had nowhere else to go, and the site stayed closed until January 25, 2008.

On that date something happened that Kellner calls “outside any legal process.” By an inexplicable retro-appeal to the Jalisco state courts, the building company was granted legal permission to continue construction by a state magistrate.

“The legal course is the other way around,” Kellner said. “You first of all complain to the lowest jurisdiction, and then you end up in federal court, and if you lose there you have nowhere else to go. But they went exactly in reverse.

“They have continued from the 28th of January, and of course they’re going as fast as they can now because they feel we might stop them again – and we are going to stop them again.”

On February 21, in a rare public response to the neighborhood association’s accusations, the landowners said they complied with the law and found the ground within safe limits of pollutants.

Manuel de Asis Orta, vice president of SSC Inmobilaria, said that their tests found thallium (a bioaccumable heavy metal) in amounts permissible under Mexican law and that it “is false that contaminating materials exist.”

Responded Kellner: “The fact is that the authorities are not asking them to do what the law requires ... Their analysis was done in a completely incorrect way because by that time they had already taken out tons and tons of earth and thrown it into other places. That was polluted earth. They were polluting the whole city.”

Furthermore, explained Kellner, the Federal Prosecutor for Environmental Protection (Profepa) reported that samples were extracted from a depth of about one meter, while the law requires samples to be taken at zero to five centimeters as heavy metals are found on the ground’s surface.

“They took the samples at the wrong depth, and even so, they found thallium,” said Kellner. “Thallium is a very toxic heavy metal, it’s soluble in water, and even in the air; it gets though your skin and into your body, and it’s not eliminated by anything. It’s what they call a silent death.”

Since Motorola vacated the site in 1999 after a 31-year residency, the land has changed hands a number of times. When the Universidad del Valle de Mexico bought the land in 2003, they required that the previous owner, Alejandro Sanchez Garza, have the land surveyed for pollutants. The study found the land to be contaminated, the results of which were included in every subsequent deed.

“Nobody who was involved in this deal here is able to say he didn’t know about this document, because it’s cited in the deed in which the lot was sold to the German bank as a fiduciary,” Kellner said. “The funny part about this is that the two partners who have the option to purchase the land say that they never knew about this document.”

There is more that does not add up: the federal government does not have a single paper filed by Motorola or ON Semiconductors (a subsidiary of the Texas Pacific Group, which bought up the semi-conductor division of Motorola worldwide) registering their industrial waste – how much, what type, if transported by government authorized hazmat freight companies – for all activity during the 1980s and 90s. Toxic waste registration is obligatory under federal law.

Recently the Jardines del Sol neighborhood association went to federal criminal courts to file a complaint requesting the builders be held responsible for their crimes. They are also at the point of petitioning federal courts once again that the construction be stopped.

SSC Inmobilaria insists that La Ciudadela will benefit the community. They announced they will donate 1,200 square meters of land so the Federal Electricity Commission can build a substation that could provide 1,200 area homes with energy.

Kellner will continue to combat the project. “We know that this is a lengthy process that might take several years, because you cannot remedy a polluted site within weeks.”

Not included in the Reporter's edition but worth mentioning:

Kellner noted that two water bottling plants, Bonafont and Arco Iris, are not far from the contaminated landsite, as well as the Sabritas factory.

“The government favors investment. Investment goes first, because it generates employment, it generates prosperity. But this is not prosperity if you have people die on account of investment.” - Ludger Kellner