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Aquino v. Municipality of Malay, Aklan, GR 211356, 29 September 2014
On January 7, 2010, Boracay Island West Cove Management Philippines, Inc. applied for a building permit with the municipal government of Malay, Aklan covering the construction of a three-storey hotel over a parcel of land located in Sitio Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan, which is covered by a Forest Land Use Agreement for Tourism Purposes 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 within the “no build zone” demarcated in Municipal Ordinance 2000-131 (Ordinance).
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.
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.
PETITIONER’s CONTENTION: 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. And the Municipality of Malay, Aklan should have first secured a court order before proceeding with the demolition.
RESPONDENT’s CONTENTION: 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.
Whether or not a judicial proceedings should first be conducted before the LGU can order the closure and demolition of the property in question.
The petition was denied.
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.
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