G.R. No.
211356, September 29, 2014
CRISOSTOMO
B. AQUINO, Petitioner,
v.
MUNICIPALITY
OF MALAY, AKLAN, Respondent.
VELASCO
JR., J.:
NATURE:
This is a Petition for Review on Certiorari
challenging the Decision1 and the Resolution of the Court of
Appeals. The assailed rulings denied Crisostomo Aquino’s Petition for
Certiorari for not being the proper remedy to question the issuance and
implementation of Executive Order No. 10, Series of 2011 (EO 10), ordering the
demolition of his hotel establishment.
FACTS:
Boracay Island
West Cove Management Philippines, Inc. applied for a building permit covering
the construction of a three-storey hotel over a parcel of land in 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). The
Municipal Zoning Administrator denied petitioner’s application on the ground
that the proposed construction site was within the “no build zone” demarcated
in Municipal Ordinance 2000-131.
Petitioner
appealed the denial action to the Office of the Mayor but despite follow up, no
action was ever taken by the respondent mayor.
A Cease and
Desist Order was issued by the municipal government, enjoining the expansion of
the resort, and on June 7, 2011, the Office of the Mayor of Malay, Aklan issued
the assailed EO 10, ordering the closure and demolition of Boracay West Cove’s
hotel.
EO 10 was partially implemented on June 10, 2011. Thereafter, two more instances followed wherein respondents demolished the improvements introduced by Boracay West Cove.
EO 10 was partially implemented on June 10, 2011. Thereafter, two more instances followed wherein respondents demolished the improvements introduced by Boracay West Cove.
Petitioner filed
a Petition for Certiorari with prayer for injunctive relief with the CA
Alleging that the order was issued and executed with grave abuse of discretion
Contentions of West Cove:
1) 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.
2) Municipality of Malay, Aklan
should have first secured a court order before proceeding with the
demolition.
Contention of the Mayor: 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
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.
ISSUE:
Whether the judicial
proceedings should first be conducted before the LGU can order the closure and
demolition of the property in question.
HELD:
The Court ruled that the
property involved cannot be classified as a nuisance per se which can therefore be
summarily abated. 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, even if the
hotel is not a nuisance per se, it is still a nuisance per accidens
Generally, LGUs have no power
to declare a particular thing as a nuisance unless such a thing is a nuisance per se. Despite the hotel’s
classification as a nuisance per accidens, however, 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.
Moreover, the Local Government Code authorizes city and municipal governments,
acting through their local chief executives, to issue demolition orders. The
office of the mayor has quasi-judicial powers to order the closing and
demolition of establishments.
FALLO:
Petition is
denied
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