in Municipal ordinance 2000-131.
Aquino appealed to the mayor
Aquino v. Municipality of Malay (Vi)
September 29, 2014| Velasco, J. | Nuisance per se and per accidens
PETITIONER: Crisostomo B. Aquino
RESPONDENTS: Municipality of Malay, Aklan represented by Hon.
Mayor John Yap, Sangguniang Bayan of Malay, Aklan represented by Hon.
Ezel Flores, etc.
SUMMARY: Aquino is the president of Boracay Island West Cove
Management, Philippines. He applied for a zoning compliance to construct
a 3-storey hotel but this was denied since it was to be constructed in the
“no-build zone”. Hence, mayor issued EO 10 to demolish the hotel and it
was partially executed. Issue: whether the hotel is a nuisance and can be
abated. The Court ruled that the hotel is a nuisance per accidens because of
its location and that the LGU has the power to issue EO 10 and demolish
the hotel for the general welfare.
DOCTRINE:
A nuisance per se is one that is a nuisance under all circumstances while a
nuisance per accidens depends on conditions and circumstances and cannot
be abated without due hearing.
The LGUs have the authority to declare a thing a nuisance and order
demolition.
FACTS:
1. Aquino is the president and chief executive officer of Boracay Island
West Cove Management Philippines, Inc. On Jan 7, 2010, the
company applied for a zoning compliance with the municipal
government of Malay, Aklan. 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 3-storey hotel over
a parcel of land measuring 998 sqm. 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.
2. Municipal Zoning Administrator denied the application saying that
the proposed construction was withing the “no-build zone” (25
meters from the edge of the mean high water mark measured inland)
who didn’t take action.
3. 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. This was
partially implemented and some of the improvements were
demolished.
4. Aquino filed a Petition for Certiorari with prayer for injunctive relief
with the CA. He argued that judicial proceedings should first be
conducted before the respondent mayor could order the demolition
of the company's establishment; that Boracay West Cove was
granted a FLAgT by the DENR, which bestowed the company the
right to construct permanent improvements on the area in question;
that since the area is a forestland, it is the DENR that has primary
jurisdiction over the area, and that the Regional Executive Director
of DENR-Region 6 had officially issued an opinion regarding the
legal issues. He claims that the hotel cannot be abated because it
is not a nuisance per se given the hundred-million peso capital
infused in the venture. Also should’ve secured court order first
before demolishing.
5. Respondents contended that the FLAgT does not excuse the
company from complying with the PD 1096 (National Building
Code of the Philippines) and that the demolition needed no court
order because the municipal mayor has the express power under the
LGC to order the removal of illegally constructed buildings.
6. CA dismissed on procedural ground saying it should be a petition
for declaratory relief.
ISSUES:
1. Whether certiorari is the proper remedy - YES
2. Whether the mayor committed grave abuse of discretion when he
issued EO 10 – NO
3. Whether the hotel is a nuisance - YES
RATIO:
1. Certiorari is the proper remedy in this case. An action for declaratory
relief presupposes no actual breach of instruments involved or rights
thereunder. The purpose is to secure an authoritative statement and
 not an action for breach. Petition for declaratory relief became
unavailable because of the implementation of EO 10. Also, mayor
was acting in his official functions upon finding that construction of
hotel is illegal.
2. Article 694 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. 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 build zones are intended for the protection of the public
because the stability of the 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.
3. There are 2 kinds of nuisances:
1) nuisance per se - 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.
2) Nuisance per accidens – depends on conditions and
circumstances and cannot be abated without due hearing.
4. In this case, the hotel is not a nuisance per se because it should be a
nuisance at all times regardless of location and surrounding. Here, it
is only a location which rendered it a nuisance (not qualities).
Therefore, it is a nuisance per accidens.
5. Generally, LGUs have no power to declare a particular thing as a
nuisance unless such a thing is a nuisance per se. But Court held in
this case that LGU has the power to order demolition despite it being
a nuisance per accidens because government may enact legislation
that may interfere with personal liberty, property, lawful businesses
and occupations to promote the general welfare.
6. One legislation is the LGC which authorizes municipal and city
governments to issue demolition orders. The office of the mayor is
also given authority to hear issues on property rights and come out
with an effective order or resolution. Mayors may require owners of
illegally constructed structures to obtain necessary permits, subject
to fines and penalties, or make necessary changes in construction
when it violates a law or ordinance, or to order demolition within
the period prescribed by law.
7. The requirements for the exercise of the power were present:
1) illegality of structures - they failed to secure the necessary
permits (building permit and zoning clearance) which
made it a nuisance
2) observed procedural due process rights - public officers
enjoy the presumption of regularity in the performance of
their duties; Aquino received notices to comply with the
zoning ordinance; and there was a 10-day allowance before
demolishing the hotel.