Aquino v. Municipality Of Malay
Crisostomo B. Aquino v. Municipality of Malay, Aklan, et al., G.R. No. 211356, September 29, 2014
- Procedural (Remedial Law)
- Political Law
- certiorari
- declaratory relief
- quasi-judicial function
- Executive Order No. 10
- no build zone
- nuisance per accidens
- summary demolition
- Local Government Code
- Forest Land Use Agreement for Tourism Purposes
- Boracay
- due process
- primary jurisdiction
- National Building Code
I. Facts of the Case
Petitioner Crisostomo Aquino, president and CEO of Boracay Island West Cove Management Philippines, Inc., operated a resort in Boracay on land covered by a DENR-issued FLAgT. The Municipality of Malay denied his zoning application for a three-storey hotel because the site was within the 'no build zone' under Municipal Ordinance 2000-131, and the mayor later issued Executive Order No. 10 ordering the closure and demolition of the hotel. The dispute is whether the mayor could validly order the closure and demolition, and whether certiorari was the proper remedy against it.
January 7, 2010
Boracay West Cove applied to the Malay municipal government for zoning compliance to get a building permit for a three-storey hotel on a 998-sqm parcel in Sitio Diniwid, Barangay Balagab, Boracay. The land is covered by a FLAgT issued by the DENR, and the company was already operating a resort there.
January 20, 2010
The Municipal Zoning Administrator denied the application because the site was within the 'no build zone' under Municipal Ordinance 2000-131, defined as the space 25 meters from the mean high water mark measured inland.
February 1, 2010
Petitioner appealed the denial to the Office of the Mayor. He followed up by letter on May 13, 2010, but the mayor took no action.
March 7 and 28, 2011
The municipal government sent notices requiring compliance with the zoning ordinance, which the company allegedly did not heed. On March 28, 2011, it issued a Cease and Desist Order enjoining the expansion of the resort.
April 5, 2011
A Notice of Assessment was sent to petitioner for unpaid taxes and liabilities, under pain of a closure recommendation, since the resort had operated continuously since 2009 without zoning clearance, building permit, and business/mayor's permit. Petitioner said he was willing to pay, but the municipal treasurer refused the tendered payment.
Petitioner continued the construction, expansion and operation of the resort hotel despite the denial and the orders.
June 7, 2011
The Mayor of Malay issued Executive Order No. 10, Series of 2011, ordering the closure and demolition of the hotel. EO 10 was partially implemented on June 10, 2011, and two more demolitions followed, the latest in February 2014.
Petitioner filed a Petition for Certiorari with prayer for injunctive relief with the CA (CA-G.R. SP No. 120042), alleging grave abuse of discretion. He argued that judicial proceedings should precede demolition, that the FLAgT gave him the right to build permanent improvements, that the DENR has primary jurisdiction over forestland, that the Ordinance admits exceptions, and that the mayor was to blame for not issuing clearances. Respondents answered that the FLAgT does not excuse compliance with the Ordinance and PD 1096, and that the mayor may order demolition of illegal buildings without a court order under the Local Government Code.
August 13, 2013
The CA dismissed the petition on procedural grounds only. It held that certiorari lies only against officers exercising judicial or quasi-judicial functions, that issuing EO 10 was an executive function, and that the proper remedy was a petition for declaratory relief with the RTC.
February 3, 2014
The CA denied petitioner's motion for reconsideration. Petitioner then filed a petition for review on certiorari with the Supreme Court.
II. Issues
Whether or not a petition for certiorari, instead of a petition for declaratory relief, was the proper remedy for questioning EO 10.
Whether or not declaratory relief was still available to petitioner.
Whether or not the respondent mayor, in ordering the closure and demolition of the hotel, exercised a quasi-judicial function and did not commit grave abuse of discretion in issuing EO 10.
Whether or not petitioner's right to due process was violated when the mayor ordered the closure and demolition of the hotel without first conducting judicial proceedings.
Whether or not petitioner's rights under the FLAgT prevail over the municipal ordinance providing for a no-build zone, and the LGU's refusal to issue the building permit and clearances was justified.
Whether or not the DENR, and not the LGU, has primary jurisdiction over the controversy.
III. Ruling
Whether or not a petition for certiorari, instead of a petition for declaratory relief, was the proper remedy for questioning EO 10.
Certiorari was the proper remedy, and the CA erred in ruling that declaratory relief was proper. The mayor's finding that the hotel was illegal required quasi-judicial functions, and no plain, speedy and adequate remedy existed given the ongoing demolition.
How the Court reasoned
- Certiorari under Rule 65 lies against a tribunal, board or officer exercising judicial or quasi-judicial functions who acts with grave abuse of discretion, when there is no other plain, speedy and adequate remedy.
- The CA held that the mayor issued EO 10 as an executive act, so certiorari was unavailable.
- The Supreme Court disagreed. To order the closure and demolition, the mayor had to determine that the hotel was illegal for lacking permits and being in the no-build zone, which is a quasi-judicial determination.
- Declaratory relief could not be an adequate remedy because EO 10 was already being enforced and demolition was ongoing, so petitioner needed immediate relief.
- Thus the CA erred in dismissing the petition solely on the ground that certiorari was not the proper remedy.
“Such a finding of illegality required the respondent mayor's exercise of quasijudicial functions, against which the special writ of certiorari may lie.”
Rule applied
Rule 65, Sec. 1, Rules of Court (certiorari); Rule 63, Sec. 1, Rules of Court (declaratory relief)
Whether or not declaratory relief was still available to petitioner.
Declaratory relief was no longer available to petitioner because EO 10 had already been enforced and implemented. The CA was wrong to say it was the proper remedy.
How the Court reasoned
- Under Rule 63, declaratory relief may be brought only before there has been a breach of the instrument, statute, ordinance or regulation in question.
- EO 10 was partially implemented on June 10, 2011, and further demolitions followed, so the order had already been executed.
- Once a breach or enforcement has taken place, the court can no longer entertain a declaratory relief action, so the CA's suggested remedy was unavailable.
Rule applied
Rule 63, Sec. 1, Rules of Court
Whether or not the respondent mayor, in ordering the closure and demolition of the hotel, exercised a quasi-judicial function and did not commit grave abuse of discretion in issuing EO 10.
The mayor acted within his authority and did not commit grave abuse of discretion in issuing EO 10. The hotel is not a nuisance per se but a nuisance per accidens, and the mayor may order the closure and demolition of illegal structures lacking permits under the Local Government Code.
How the Court reasoned
- Sec. 444(b)(3)(vi) of the LGC authorizes the municipal mayor to order the closure and demolition of illegally constructed structures lacking the required permits, after due notice and hearing.
- A nuisance per se is a nuisance at all times and under any circumstance, and can be summarily abated; a nuisance per accidens becomes a nuisance because of its location or surroundings and needs a hearing to be declared one.
- The hotel is not a nuisance per se, since a hotel is a lawful structure, but it is a nuisance per accidens because it was built in the no-build zone.
- When the mayor acts under Sec. 444(b)(3)(vi) against structures built without permits, whether the structure is a nuisance per se or per accidens becomes immaterial.
- Petitioner built and operated without zoning clearance, building permit and business permit, and tendering payment of fees afterward could not cure the illegality since the LGU's refusal rested on valid grounds.
- Thus there was no grave abuse of discretion in issuing EO 10.
“As such, petitioner is correct that the hotel is not a nuisance per se, but to Our mind, it is still a nuisance per accidens.”
Rule applied
Sec. 444(b)(3)(vi), Local Government Code (R.A. No. 7160); Article 694, Civil Code; Sec. 301, PD 1096
Whether or not petitioner's right to due process was violated when the mayor ordered the closure and demolition of the hotel without first conducting judicial proceedings.
Petitioner's right to due process was not violated. The notices given to him sufficed, and a court order for demolition was dispensed with under the circumstances.
How the Court reasoned
- Due process requires notice and an opportunity to be heard, and the LGC requires due notice and hearing before the mayor orders closure and demolition.
- The notices of March 7 and 28, 2011 informed petitioner of the violations and required compliance, and EO 10 gave him a 10-day grace period.
- Petitioner did not question the adequacy of the 10-day grace period, and public officials are presumed to have regularly performed their duties.
- Since the mayor was authorized by the LGC and the structure was illegal, a court order that is normally required was dispensed with.
“Under the premises, a court order that is required under normal circumstances is hereby dispensed with.”
Rule applied
Sec. 444(b)(3)(vi), Local Government Code; due process; presumption of regularity in the performance of official duty
Whether or not petitioner's rights under the FLAgT prevail over the municipal ordinance providing for a no-build zone, and the LGU's refusal to issue the building permit and clearances was justified.
The FLAgT does not exempt petitioner from the municipal ordinance and the National Building Code, and the LGU's refusal to issue permits was justified. The ordinance's exceptions on slopes and swamps do not apply to the no-build zone.
How the Court reasoned
- The FLAgT allows improvements on forestland but does not take away the LGU's power to regulate building and zoning.
- The conditions imposed by the FLAgT, the ordinance and the National Building Code are cumulative: petitioner must satisfy all of them, including the building permit required by Sec. 301 of PD 1096.
- The Sangguniang Bayan has power under Sec. 447 of the LGC to enact zoning and building regulations such as the no-build zone ordinance.
- Sections 6 and 8 of the Ordinance concern slopes and swamps and do not create an exception to the no-build zone rule.
- The refusal to issue the permit and clearances thus rested on valid grounds, so the mayor cannot be blamed, and paying the fees later cannot legalize the construction.
“The illegality of the construction cannot be cured by merely tendering payment for the necessary fees and permits since the LGU's refusal rests on valid grounds.”
Rule applied
Municipal Ordinance 2000-131, Secs. 2, 3, 6 and 8; Sec. 301, PD 1096 (National Building Code); Sec. 447(a)(3)(i) and (a)(5)(i), Local Government Code
Whether or not the DENR, and not the LGU, has primary jurisdiction over the controversy.
The DENR does not have primary jurisdiction over the controversy. The issue is the legality of the structure for lack of permits, not environmental protection, and the DENR regional opinion is not conclusive.
How the Court reasoned
- Primary jurisdiction applies when a case requires the special competence of an administrative agency.
- Here the question is whether the hotel complied with local zoning, building and permit requirements, which is within the LGU's powers.
- The case does not turn on environmental protection or forestland management, which is the DENR's area.
- The opinion of the DENR regional office is not conclusive on the LGU, so the mayor's action was not preempted.
Rule applied
Doctrine of primary jurisdiction; Sec. 17(b)(2)(ii), Local Government Code
Doctrines
Declaratory relief is available only before breach or violation of the ordinance or regulation; once an executive order has been enforced and implemented, it is no longer available.
Certiorari lies against a local executive who, in finding a structure illegal and ordering its closure and demolition, exercises quasi-judicial functions, where no plain, speedy and adequate remedy exists.
A structure that is lawful in itself but unlawful by reason of its location, such as a hotel built in a no-build zone, is a nuisance per accidens, not a nuisance per se.
Under Sec. 444(b)(3)(vi) of the Local Government Code, the municipal mayor may order the closure and demolition of illegally constructed structures lacking permits after due notice and hearing, and the nuisance per se or per accidens classification then becomes immaterial.
A Forest Land Use Agreement for Tourism Purposes does not exempt the holder from local zoning ordinances and the National Building Code; the requirements are cumulative.
The DENR has no primary jurisdiction over a controversy that concerns the legality of a structure for lack of permits rather than environmental protection.
Final Disposition
WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 120042 are AFFIRMED.
Notes
The Supreme Court ruled on the merits even though the CA had dismissed the petition on procedural grounds only. It found that certiorari was proper but denied the petition because the mayor's action was valid.