Saturday, May 23, 2015

Local Government Code: Mayors May Issue Demolition Orders Of Illegally Constructed Establishments….

See - Local Government Code: Mayors May Issue Demolition Orders Of Illegally Constructed Establishments….


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Article 694 of the Civil Code defines “nuisance” as any act, omission, establishment, business, condition or property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) hinders or impairs the use of property.
In establishing a no build zone through local legislation, the LGU effectively made a determination that constructions therein, without first securing exemptions from the local council, qualify as nuisances for they pose a threat to public safety. No build zones are intended for the protection of the public because the stability of the ground’s foundation is adversely affected by the nearby body of water. The ever present threat of high rising storm surges also justifies the ban on permanent constructions near the shoreline. Indeed, the area’s exposure to potential geo-hazards cannot be ignored and ample protection to the residents of Malay, Aklan should be afforded.
Challenging the validity of the public respondents’ actuations, petitioner posits that the hotel cannot summarily be abated because it is not a nuisance per se, given the hundred million peso-worth of capital infused in the venture. Citing Asilo, Jr. v. People, petitioner also argues that respondents should have first secured a court order before proceeding with the demolition.
Preliminarily, We agree with petitioner’s posture that the property involved cannot be classified as a nuisance per se, but not for the reason he so offers. Property valuation, after all, is not the litmus test for such a determination. More controlling is the property’s nature and conditions, which should be evaluated to see if it qualifies as a nuisance as defined under the law.
As jurisprudence elucidates, nuisances are of two kinds: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance.
In the case at bar, the hotel, in itself, cannot be considered as a nuisance per se since this type of nuisance is generally defined as an act, occupation, or structure, which is a nuisance at all times and under any circumstances, regardless of location or surrounding. Here, it is merely the hotel’s particular incident––its location––and not its inherent qualities that rendered it a nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay West Cove could have secured the necessary permits without issue. 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.
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“Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is a nuisance per se. So it was held in AC Enterprises v. Frabelle Properties Corp:
We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such. Those things must be determined and resolved in the ordinary courts of law. If a thing, be in fact, a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the Sangguniang Bayan. (emphasis supplied)
Despite the hotel’s classification as a nuisance per accidens, however, We still find in this case that the LGU may nevertheless properly order the hotel’s demolition. This is because, in the exercise of police power and the general welfare clause, property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the government. Otherwise stated, the government may enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to promote the general welfare.
One such piece of legislation is the LGC, which authorizes city and municipal governments, acting through their local chief executives, to issue demolition orders. Under existing laws, the office of the mayor is given powers not only relative to its function as the executive official of the town; it has also been endowed with authority to hear issues involving property rights of individuals and to come out with an effective order or resolution thereon. Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to order the closure and removal of illegally constructed establishments for failing to secure the necessary permits, to wit:
Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. –
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(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:
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(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall:
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(vi) Require owners of illegally constructed houses, buildings or other structures to obtain the necessary permit, subject to such fines and penalties as may be imposed by law or ordinance, or to make necessary changes in the construction of the same when said construction violates any law or ordinance, or to order the demolition or removal of said house, building or structure within the period prescribed by law or ordinance. (emphasis supplied)”
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“In the case at bar, petitioner admittedly failed to secure the necessary permits, clearances, and exemptions before the construction, expansion, and operation of Boracay Wet Cove’s hotel in Malay, Aklan. To recall, petitioner declared that the application for zoning compliance was still pending with the office of the mayor even though construction and operation were already ongoing at the same time. As such, it could no longer be denied that petitioner openly violated Municipal Ordinance 2000-131, which provides:
Petitioner cannot justify his position by passing the blame onto the respondent mayor and the latter’s failure to act on his appeal for this does not, in any way, imply that petitioner can proceed with his infrastructure projects. On the contrary, this only means that the decision of the zoning administrator denying the application still stands and that petitioner acquired no right to construct on the no build zone. 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.
Instead of taking the law into his own hands, petitioner could have filed, as an alternative, a petition for mandamus to compel the respondent mayor to exercise discretion and resolve the controversy pending before his office. There is indeed an exception to the rule that matters involving judgment and discretion are beyond the reach of a writ of mandamus, for such writ may be issued to compel action in those matters, when refused. Whether or not the decision would be for or against petitioner would be for the respondent mayor to decide, for while mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in a particular way. What would have been important was for the respondent mayor to immediately resolve the case for petitioner to be able to go through the motions that the zoning clearance application process entailed.”
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“In the case at bench, the due process requirement is deemed to have been sufficiently complied with. First, basic is the rule that public officers enjoy the presumption of regularity in the performance of their duties. The burden is on the petitioner herein to prove that Boracay West Cove was deprived of the opportunity to be heard before EO 10 was issued. Regrettably, copies of the Cease and Desist Order issued by the LGU and of the assailed EO 10 itself were never attached to the petition before this Court, which documents could have readily shed light on whether or not petitioner has been accorded the 10-day grace period provided in Section 10 of the Ordinance. In view of this fact, the presumption of regularity must be sustained. Second, as quoted by petitioner in his petition before the CA, the assailed EO 10 states that petitioner received notices from the municipality government on March 7 and 28, 2011, requiring Boracay West Cove to comply with the zoning ordinance and yet it failed to do so.  If such was the case, the grace period can be deemed observed and the establishment was already ripe for closure and demolition by the time EO 10 was issued in June. Third, the observance of the 10-day allowance for the owner to demolish the hotel was never questioned by petitioner so there is no need to discuss the same. Verily, the only grounds invoked by petitioner in crying due process violation are (1) the absence of a court order prior to demolition and (2) the municipal government’s exercise of jurisdiction over the controversy instead of the DENR. Therefore, it can no longer be belatedly argued that the 10-day grace period was not observed because to entertain the same would result in the violation of the respondents’ own due process rights.
Given the presence of the requirements under Sec. 444 (b)(3)(vi) of the LGC, whether the building constituted a nuisance per se or a nuisance per accidens becomes immaterial. The hotel was demolished not exactly because it is a nuisance but because it failed to comply with the legal requirements prior to construction. It just so happened that, in the case at bar, the hotel’s incident that qualified it as a nuisance per accidens––its being constructed within the no build zone––further resulted in the non-issuance of the necessary permits and clearances, which is a ground for demolition under the LGC. Under the premises, a court order that is required under normal circumstances is hereby dispensed with.”
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