Aquino vs.

Municipality of Malay Aklan

G.R. No. 211356, September 29, 2014
Ponente: Justice Velasco Jr.
Concepts involved: Police power, General welfare clause, Nuisance per se vs. Nuisance per
accidens
Reporter: Felipe, Patricia Anne Q.
I.FACTS
Petitioner is the president and CEO of Boracay West Cove which operates a
resort in Malay, Aklan. The company applied for a zoning compliance with the
municipal government of Malay, Aklan for the construction of a three-storey hotel.
Petitioner had previously secured Forest Land Use Agreement for Tourism Purposes
(FLAgT) issued by the DENR.
Petitioners application was denied on the ground that the proposed
construction site was within the "no build zone" demarcated in a Municipal
Ordinance:
No Build Zone the space twenty-five (25) meters from the edge of the mean
high water mark measured inland
No building or structure of any kind whether temporary or permanent
shall be allowed to be set up, erected or constructed on the beaches
around
the Island of Boracay and in its offshore waters.
Petitioner appealed the denial action to the Office of the Mayor but no action
was ever taken.
Meanwhile, petitioner continued with the construction, expansion, and operation of
the resort hotel.
Municipal government issued a Cease and Desist Order and E.O. 10 ordering the
closure and demolition of Boracay West Coves hotel.
Petitioners Position:
1) EO 10 was issued and executed with grave abuse of discretion.
2) The hotel cannot be abated because it is not nuisance per se, given its P100million peso worth of capital.
3) There should be a court order prior to demolition
Respondents Position:
1.) FLAgT does not excuse company from complying with the Ordinance and National
Building Code of the PH
2.) There is no need for court order. Municipal Mayor is empowered under LGC to
order demolition of illegally constructed buildings.
II. ISSUES
1)WON LGUs refusal to issue petitioner the building permit was justified.
2) WON petitioners right to due process was violated when the Mayor ordered the
demolition without court order.
III.RULING
1. YES. LGU EFFECTIVELY MADE A DETERMINATION THAT CONSTRUCTIONS
IN THE NO-BUILD ZONE QUALIFY AS NUISANCES FOR THEY POSE A
THREAT TO PUBLIC SAFETY AS IT IS EXPOSED TO POTENTIAL GEOHAZARDS:

a)The stability of the grounds foundation is adversely affected by nearby body of

water
b)High rising storm surges
NUISANCE any act, omission, establishment, business, condition, 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.
Nuisance per se vs. Nuisance per accidens
Nuisance per se- an act, occupation, or structure, which is a nuisance at all times
and under any circumstances, regardless of location or surrounding.
Nuisance per accidens - 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.
Here, the hotel is not a nuisance per se. It is merely the hotels particular accident
its location and not its inherent qualities that rendered it nuisance
Property valuation is not the litmus test. More controlling is the propertys nature
and conditions, which should be evaluated to see if it qualifies as a nuisance as
defined under the law.
2. NO. LGU MAY PROPERLY ORDER THE HOTELS DEMOLITION.
A. LGC empowered the mayor to order the closure and removal of illegally
constructed establishments for failing to secure necessary permits.
Petitioner defied the zoning administrators ruling. He consciously chose to
violate not only the Ordinance but also National Building Code, laying down the
requirement of building permits before constructing any building.
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. Under the premises, and in line with a court order that is required
under normal circumstances is dispensed with.
B. GENERAL WELFARE CLAUSE
General welfare clause authorizes the LGUs to enact ordinances, not only to
carry into effect and discharge such duties as are conferred upon them by law,
but also those for the general welfare of the municipality and its inhabitants
Personal liberty, property and lawful businesses and occupations may be
interfered with by the government, through legislation, to promote general
welfare and to fulfill the objectives of the government.
IV. CRITIQUE
I agree with the SC ruling. Hotels are not nuisance per se. Hotels do not per se
immediately affect safety of persons. However, it is nuisance per accidens it
may be authorized in one location and in another it is a nuisance depending on
surrounding conditions.

The national objective sought to be advanced by the municipal ordinance

(Zoning) and EO10 is land use control for public safety. Police power of the state
was the sole basis for its constitutionality.
It is a well-settled rule that property rights must bow down to the primacy of
police power because property rights, though shielded with due process, must
yield to general welfare.