G.R. No. 211356, September 29, 2014 CRISOSTOMO B. AQUINO v. MUNICIPALITY OF MALAY, AKLAN

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.

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