CRISOSTOMO B. AQUINO,vs.MUNICIPALITY OF MALAY, AKLAN, represented by HON. MAYOR JOHN P. YAP, SANGGUNIANG BA YAN OF MALAY, AKLAN, represented by HON. EZEL FLORES, DANTE PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, JUPITER GALLENERO, OFFICE OF THE MUNICIPAL ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP CHIEF, BORACAY FOUNDATION, INC., represented by NENETTE GRAF, MUNICIPAL AUXILIARY POLICE, and JOHN and JANE DOES, G.R. No. 211356 September 29, 2014

Case Digest

CRISOSTOMO B. AQUINO,vs.MUNICIPALITY OF MALAY, AKLAN, represented by HON. MAYOR JOHN P. YAP, SANGGUNIANG BA YAN OF MALAY, AKLAN, represented by HON. EZEL FLORES, DANTE PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, JUPITER GALLENERO, OFFICE OF THE MUNICIPAL ENGINEER, OFFICE OF THE MUNICIPAL TREASURER, BORACAY PNP CHIEF, BORACAY FOUNDATION, INC., represented by NENETTE GRAF, MUNICIPAL AUXILIARY POLICE, and JOHN and JANE DOES, G.R. No. 211356 September 29, 2014

Petitioner is the president and chief executive officer of Boracay Island West Cove Management Philippines, Inc. (Boracay West Cove). On January 7, 2010, the company applied for a zoning compliance with the municipal government of Malay, Aklan.2 While the company was already operating a resort in the area, the application sought the issuance of a building permit covering the construction of a three-storey hotel over a parcel of land measuring 998 sqm. located in Sitio Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan,which is covered by a Forest Land Use Agreement for Tourism Purposes (FLAgT) issued by the Department of Environment and Natural Resources (DENR) in favor of Boracay West Cove.

Through a Decision on Zoning dated January 20, 2010, the Municipal Zoning Administrator denied petitioner’s application on the ground that the proposed construction site was withinthe "no build zone" demarcated in Municipal Ordinance 2000-131 (Ordinance).3 As provided in the Ordinance:(b) No Build Zone – the space twenty-five (25) meters from the edge of the mean high water mark measured inland;

In rebuttal, respondents contended that the FLAgT does not excuse the company from complying with the Ordinance and Presidential Decree No. 1096 (PD 1096), otherwise known as the National Building Code of the Philippines. Respondents also argued that the demolition needed no court order because the municipal mayor has the express power under the Local Government Code (LGC) to order the removal of illegally constructed buildings.

Ruling of the Court of Appeals

In its assailed Decision dated August 13, 2013, the CA dismissed the petition solely on procedural ground, i.e., the special writ of certiorari can only be directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions and since the issuance of EO 10 was done in the exercise of executive functions, and not of judicial or quasi-judicial functions, certiorari will not lie. Instead, the proper remedy for the petitioner, according to the CA, is to file a petition for declaratory relief with the Regional Trial Court.

Petitioner sought reconsideration but this was denied by the CA on February 3, 2014 through the challenged Resolution. Hence, the instant petition raising arguments on both procedure and substance.

The Issues

Stripped to the essentials, the pivotal issues in the extant case are as follows:

1. The propriety under the premises ofthe filing of a petition for certiorari instead of a petition for declaratory relief;

a. Whether or not declaratory reliefis still available to petitioner;

b. Whether or not the CA correctly ruled that the respondent mayor was performing neither a judicial nor quasi-judicial function when he ordered the closure and demolition of Boracay West Cove’s hotel;

2. Whether or not respondent mayor committed grave abuse of discretion when he issued EO 10;

a. Whether or not petitioner’s right to due process was violated when the respondent mayor ordered the closure and demolition of Boracay West Cove’s hotel without first conducting judicial proceedings;

b. Whether or not the LGU’s refusal to issue petitioner the necessary building permit and clearances was justified;

c. Whether or not petitioner’s rights under the FLAgT prevail over the municipal ordinance providing for a no-build zone; and

d. Whether or not the DENR has primary jurisdiction over the controversy, not the LGU.

The Court’s Ruling

We deny the petition.

Certiorari, not declaratory relief, is the proper remedy

a. Declaratory relief no longer viable

On the propriety of filing a petition for certiorari, Sec. 1, Rule 65 of the Rules of Court provides:

Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. x x x

For certiorari to prosper, the petitioner must establish the concurrence of the following requisites, namely:

1. The writ is directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions;

2. Such tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and

3. There is no appeal or any plain speedy, and adequate remedy in the ordinary course of law.5

Guilty of reiteration, the CA immediately dismissed the Petition for Certiorari upon determining that the first element is wanting—that respondent mayor was allegedly not exercising judicial or quasi-judicial functions when he issued EO 10.

We are not persuaded.

The CA fell into a trapwhen it ruled that a mayor, an officer from the executive department, exercises an executive function whenever he issues an Executive Order. This is tad too presumptive for it is the nature of the act to be performed, rather than of the office,board, or body which performs it, that determines whether or not a particular act is a discharge of judicial or quasijudicial functions. The first requirement for certiorari is satisfied if the officers act judicially in making their decision, whatever may be their public character.6

It is not essential that the challenged proceedings should be strictly and technically judicial, in the sense in which that word is used when applied to courts of justice, but it issufficient if they are quasi-judicial.7 To contrast, a party is said to be exercising ajudicial function where he has the power to determine what the law is and what legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of the parties, whereas quasi-judicial functionis "a term which applies to the actions, discretion, etc., of public administrative officers or bodies x x x required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from themas a basis for their official action and to exercise discretion of a judicial nature."8

In the case at bench, the assailed EO 10 was issued upon the respondent mayor’s finding that Boracay West Cove’s construction, expansion, and operation of its hotel inMalay, Aklan is illegal. Such a finding of illegality required the respondent mayor’s exercise of quasijudicial functions, against which the special writ of certiorari may lie. Apropos hereto is Our ruling in City Engineer of Baguio v. Baniqued:9

There is no gainsaying that a city mayor is an executive official nor is the matter of issuing demolition notices or orders not a ministerial one. In determining whether or not a structure is illegal or it should be demolished, property rights are involved thereby needing notices and opportunity to be heard as provided for in the constitutionally guaranteed right of due process. In pursuit of these functions, the city mayor has to exercise quasi-judicial powers.

With the foregoing discussion, the CA erred in ruling that the respondent mayor was merely exercising his executive functions, for clearly, the first requisite for the special writ has been satisfied.

Upon Our finding that a petition for certiorari under Rule 65 is the appropriate remedy, We will proceed to resolve the core issues in view of the urgency of the reliefs prayed for in the petition. Respondents did not commit grave abuse of discretion

a. The hotel’s classification as a nuisance

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.12

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 buildzones are intended for the protection of the public because the stability ofthe 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,13 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 thatwhich depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated with out due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance.14

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.15 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.

b. Respondent mayor has the power to order the demolition of illegal constructions

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is a nuisance per se.16 So it 

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,18 property rights of individuals may be subjected to restraints and burdens in order to fulfil 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.19

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 ast he 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.20 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:

i. Illegality of structures

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:

SECTION 9. – Permits and Clearances.

(a) No building or structure shall beallowed to start construction unless a Building Permit therefore has been duly issued by the Office of the Municipal Engineer.Once issued, the building owner or any person in charge of the construction shall display on the lot or on the building undergoing construction a placard containing the Building Permit Number and the date of its issue. The office of the Municipal Engineer shall not issue any building permit unless:

SECTION 10. – Penalties.

(e) Any building, structure, or contraption erected in any public place within the Municipality of Malay such as but not limited to streets, thoroughfares, sidewalks, plazas, beachesor in any other public place are hereby declared as nuisance and illegal structure.Such building structure or contraption shall be demolished by the owner thereof or any of his authorized representative within ten (10) days from receipt of the notice to demolish. Failure or refusal on the part of the owner or any of his authorized representative to demolish the illegal structure within the period here inabove specified shall automatically authorize the government of the Municipality of Malay to demolish the same, gather and keep the construction materials of the demolished structure. (emphasis supplied)

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 theapplication 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.

Alas, petitioner opted to defy the zoning administrator’s ruling. He consciously chose to violate not only the Ordinance but also Sec. 301 of PD 1096, laying down the requirement of building permits, which provides:

ii. Observance of procedural due process rights

In the case at bench, the due process requirement is deemed to have been sufficiently complied with. First, basic is the rule 

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.

d. The FLAgT cannot prevail over the municipal ordinance and PD 1096

According to petitioner, the fact that it was issued a FLAgT constitutes sufficient authorization from the DENR to proceed with the construction of the three-storey hotel.

The argument does not persuade.

The rights granted to petitioner under the FLAgT are not unbridled. Forestlands, although under the management of the DENR, are not exempt from the territorial application of municipal laws, for local government units legitimately exercise their powers of government over their defined territorial jurisdiction.

Furthermore, the conditions set forth in the FLAgT and the limitations circumscribed in the ordinance are not mutually exclusive and are, in fact, cumulative. As sourced from Sec. 447 (a)(5)(i) of the LGC:

Section 447.Powers, Duties, Functions and Compensation. –

(a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipalityand its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the municipality as provided for under Section 22 of this Code, and shall:

x x x x

(5) Approve ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, shall:

(i) Provide for the establishment, maintenance, protection, and conservation of communal forests and watersheds, tree parks,greenbelts, mangroves, and other similar forest development projectsx x x. (emphasis added)

Thus, aside from complying with the provisions in the FLAgT granted by the DENR, it was incumbent on petitioner to likewise comply with the no build zone restriction under Municipal Ordinance 2000-131, which was already in force even before the FLAgT was entered into. On this point, it is well to stress that Sections 6 and 8 of the Ordinance do not exempt petitioner from complying with the restrictions since these provisions adverted to grant exemptions from the ban on constructions on slopes and swamps, not on the no build zone.

Additionally, the FLAgT does not excuse petitioner from complying with PD 1096. As correctly pointed out by respondents, the agreement cannot and will not amend or change the law because a legislative act cannot be altered by mere contractual agreement. Hence, petitioner has no valid reason for its failure to secure a building permit pursuant to Sec. 301 of the National Building Code.

e. The DENR does not have primary jurisdiction over the controversy

Lastly, in ascribing grave abuse ofdiscretion on the part of the respondent mayor, petitioner argued that the hotel site is a forestland under the primary jurisdiction of the DENR. Assuch, the merits of the case should have been passed upon by the agency and not by the LGU. In the alternative, petitioner explains that even if jurisdiction over the matter has been devolved in favor of the LGU, the DENR still has the power of review and supervision over the former’s rulings. As cited by the petitioner, the LGC reads:

Section 17.Basic Services and Facilities. –

x x x x

(b) Such basic services and facilities include, but are not limited to, the following:

x x x x

(2) For a Municipality:

x x x x

(ii) Pursuant to national policies and subject to supervision, control and review of the DENR, implementation of community-based forestry projects which include integrated social forestry programs and similar projects; management and control of communal forests with an area not exceeding fifty (50) square kilometers; establishment of tree parks, greenbelts, and similar forest development projects. (emphasis added)

Petitioner has made much of the fact that in line with this provision, the DENR Region 6 had issued anopinion favourable to petitioner.25 To petitioner, the adverted opinion effectively reversed the findings of the respondent mayor that the structure introduced was illegally constructed.

We disagree.

In alleging that the case concernsthe development and the proper use of the country’s environment and natural resources, petitioner is skirting the principal issue, which is Boracay West Cove's non-compliance with the permit, clearance, and zoning requirements for building constructions under national and municipal laws. He downplays Boracay West Cove's omission in a bid to justify ousting the LGU of jurisdiction over the case and transferring the same to the DENR. He attempts to blow the issue out of proportion when it all boils down to whether or not the construction of the three-storey hotel was supported by the necessary documentary requirements.

Based on law and jurisprudence, the office of the mayor has quasijudicial powers to order the closing and demolition of establishments.1âwphi1 This power granted by the LGC, as earlier explained, We believe, is not the same power devolved in favor of the LGU under Sec. 17 (b )(2)(ii), as abovequoted, which is subject to review by the DENR. The fact that the building to be demolished is located within a forestland under the administration of the DENR is of no moment, for what is involved herein, strictly speaking, is not an issue on environmental protection, conservation of natural resources, and the maintenance of ecological balance, but the legality or illegality of the structure.1âwphi1 Rather than treating this as an environmental issue then, focus should not be diverted from the root cause of this debacle-compliance.

Ultimately, the purported power of review by a regional office of the DENR over respondents' actions exercised through an instrumentality of an ex-parte opinion, in this case, finds no sufficient basis. At best, the legal opinion rendered, though perhaps informative, is not conclusive on the courts and should be taken with a grain of salt.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit. The Decision and the Resolution of the Court of Appeals in CA-G.R. SP No. 120042 dated August 13, 2013 and February 3, 2014, respectively, are hereby AFFIRMED.