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REPUBLIC OF THE PHILIPPINES Local Zoning Board of Adjustment and Appeals City of Mandaluyong


TANSK INCORPORATED herein represented by its Secretary/ Treasurer of the Corporation Ms. SEE SIU KHIM TAN Appellant/Applicant x-------------------------------------------------x

Position Paper
The APPELLANT/APPLICANT, unto to this Honorable Local Zoning
Board of Adjustment and Appeals, most respectfully alleges that: PREPARATORY STATEMENT The instant appeal is grounded on an application for deviation, variance and exception from the provision of An Ordinance Adopting An Integrated Zoning Regulations for the City of Mandaluyong, Ordinance No. 475, Series of 2011, (herein after the New Zoning Regulation) particularly Article IX on Mitigating Device s, in Sections 34 and 35 thereof) for the full legitimate construction and to house of Appellant/Applicants Medical Supplies, Occupational Safety, Health Products and other products at 522 and 524 Calbayog St., Mandaluyong City THE PARTY The Appellant/Applicant is a corporation duly organized and existing under the laws of the Philippines with office address at 522 and 524 Calbayog St., Brgy Highway Hills where it may be served with notices, resolutions and other official processes of this Honorable Board. It is represented herein by its Secretary/Treasurer, Ms. See Siu Khim Tan. Appended hereto as Annex A is its Board Resolution. STATEMENT OF FACTS AND OF THE CASE Appellant/Applicant has leased contract to build the Three Storey Building As shown in the Contract of Lease Certification dated and certification are hereto attached and marked as Annex B. The absolute registered owner of 2parcel of land, lot 7 and 8 of block 59 situated 522 and 524 Calbayog St., Brgy

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Highway Hills duly covered by Transfer Certificate of Title (TCT) 11770 and 008 201200281.These 2 parcels of land are owned by See Siu Khim Tan and Leon See Tan. Photocopies there of are hereto attached as marked as Annex C and D respectively . In consonance with its corporation, the Appellant/Applicant intends to operate its business by selling/distributing finished pharmaceutical products at wholesale and retail within the City of Mandaluyong over which this Honorable Board has jurisdiction. Pursuant to this venture, it is imperative for the Appellant/Applicant to construct, build and erect a three (3)storey with mezzanine commercial building (building, for brevity)on lot 7 and 8 of block 59 situated 522 and 524 Calbayog St., Brgy. Highway Hills. In its desired of operation, the Appellant/Applicant with certainty engage a number of personnel and employees. With this in mind, Appellant/Applicant proceeded to the City Government of Mandaluyong to acquire the usual business permit and license in its fervent deveavour to operate legally. On January 23, 2013 filed an appeal-with the office of the Honorable Benhur Abalos, Jr., which was then endorsed to the LZBAA praying that the proposed activity/project/building be exempted from the application of Mandaluyong City Ordinance No. 475, S-2011. A copy of the said letter appeal is hereto attached as Annex E To substantiate the Appeal, the Appellant/Applicant sought and obtained the approved of the office of the Chairman of Barangay Highway Hills (Barangay # 23 ) which issued a Certification dated 1 March 2013 to the effect that it supports and interposes no objection to the construction of the proposed building in their area of jurisdiction. A photocopy of the said clearance is hereto attached as Annex F . Likewise the unanimous and unqualified consent for its neighbor was propitiously obtained by herein Appellant/Applicant as evidenced by a copy of thereof which hereto attached as Annex G . Such neighbor consent, in affidavit form, more than bolster the acceptance and recognition by the concerned parties close to and residing within the fifty (50) meters radius from the proposed building of the project itself as they all came united in approval thereof. Unfortunately, the business activity like that being proposed by Appellant/Applicant is not allowed in a residential zones. Thus, Appellant/Applicant, which then, and is now, in the thick of the preparations of setting up its operations was instructed by the City Government of Mandaluyong, as a usual procedure to take the matter to this Honorable Board for review and reconsideration. It firmly believes that city Government through this Honorable Board may find the propriety in relaxing the application of the subject Ordinance vis--vis the peculiar factors attending the application for clearances. After all it is nothing new and in fact it has been the accepted practice of years that the City has been lenient and considerate due to prevailing situations and special circumstances with banks on Section thereof that : (t)he uses is enumerated in the succeeding section are not exhaustive nor allinclusive. The Local Zoning Board of Adjustment and Appeals (LZBAA) shall subject to the requirements of this articles, allow other uses not enumerated xxx. And so, the Office of the City Mayor directed the Appellant/Applicant to elevate the case before this Honorable Board in the light of the provision of the aforesaid Ordinance specially the application of Section 34 and 35 of Article IX thereof. As such, upon invitation by this Honorable Board hearings were conducted in relation to this instant case and finally directing herein Appellant/Applicant to submit its position paper, justifying therein the grant of deviation, variance and of exception in accordance with above-quoted Article IX, Mitigating Device under Section 34 and 35 of the said Mandaluyong City Ordinance No. 475, Series of 2011.

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The business of the Appellant/Applicant is legitimate business that at most, can only be regulated, but cannot be prohibited The Appellant/Applicant was on the roads towards obtaining his full and legitimate standing by applying for all legal preconditions for operation . And as the records will bear out, the Appellant/Applicant was able to acquire its Barangay Clearance/Certification (Annex F) allowing it to push through with its project in its jurisdiction As well as obtain the significant Neighbors Consent (Annex G) from parties residing within the intended area of operation. Aside from these, it has submitted also its Board Resolution (Annex A) and its formal letterrequest (Annex E) to the City Mayor for allowance from deviation, variance and exception, among others. Worth nothing is that the Appellant/Applicants building space is situated in an already commercialized area. Its facilities are at par with the usual industry standard in hygiene and safety to ensure that the working environment is safe and labor friendly. Preventing the Appellant/Applicant not to operate in its present location is not a proper exercise of police power as is not a viable solution to the supposed security safety and health concerns. It should be clear as the sun rises in the east that with enough fire and safety measures employed, the storage of pharmaceutical products do not pose any hazards to its neighbors. As such, easing out such building from a residential area is not completely in four squares with requisites for the valid exercise of police power. To successfully invoke the exercise of police power, free from the imputation of constitutional, infirmity, not only must it appear that the interest of the public generally, as distinguished from those of a particular class, require an interference with private right, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals (City of Manila vs. Hon. Laguio Jr., No. 118127, April 12, 2005). This being not the case with Appellant/Applicant then it is entitled to leniency.

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Appellant/Applicant is entitled to and protected by the equal protection of the law clause of the Constitution Utmost consideration must be accorded to the fact that there is already an existing structures about twenty (20) meters from the site where the Appellant/Applicant desires to erect its building. business. This means that the City Government of Mandaluyong has already granted the building of such type of a structure in Calbayog St., Brgy. Highways Hills. In support of this appeal, it is most respectfully submitted that the equal protection of the laws clause as enshrined in Section 1, Article III of the 1987 Constitution finds application in this instance. The equal protection clause does not require the universal application of the laws to all person or things without distinction what it simply requires is equality among equals as determined according to a valid classification. (Quinto vs Commission on Election 613 SCRA 385) the equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play (Baraogo vs Philippine Truth Commission of 2010, 637 SCRA 78) The test developed by jurisprudence here and yonder is that of reasonableness, which has four requisites: (1) The classification rests on substantial distinction; (2) It is a germane to the purpose of the law; (3) It is not limited to existing condition only; and (4) It applies equally to all members of the same class (Gutierrez vs Department of Budget and Management, 616 SCRA (5) Essentially, the quality guaranteed under this clause is equality under the same condition and among person similarly situated. (commission on Election vs Cruz, 603 SCRA) It cannot be denied that a certain construction business owns a three storey building that is primarily used to hose his business of selling construction materials years ago. Equally undibitable is the fact that the same building is located within the same area or zone where the proposed three-storey building of herein Appellant/Applicant is to be constructed. There is nothing that distinguished that said existing building from the one being proposed to be built in the same area. If the City Government of Mandaluyong has allowed the construction and continued existence of that said building in that zone, then there is no reason why the same privilege be not accorded to and in favor of Appellant/Applicant for both entities stand on equal footing and belong to the same class and so must be treated similarly sans any distinction whatsoever. As categorically pronounced in Rivera vs United Laboratories, Inc. (586 SCRA 269), (b)oth in law and under the common concept of fairness, there is inequitable treatment only if persons under the same situation or circumstances are treated differently. With all due respect, Appellant/Applicant believes that the City Government of Mandaluyong, thru this Honorable Board, has set a guidelines for the classification of entities securing approval of their application to construct a building on various zones within the jurisdiction thereof. It also believes that the same classification rests on the fundamental dictates of our Constitution. For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class. (Baraogo vs Philippine Truth Commission of 2010,ibid) And that (t)he classification must not be based on existing circumstances only, or so constituted as to prelude addition to the number included in the class it must be such a nature as to embrace all those who may thereafter be in similar circumstances and condition. (ibid). Ergo, the classification and standards set for all buildings in the same zone, where the proposed building herein

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Appellant/Applicant is to be constructed are, without any iota of doubt, to be applied also in favor. The physical character of the district or zone will not altered and will not substantially or permanently injure the use of the other properties in the same district or zone or adjoining the property of the Appellant/Applicant for it is but an expansion of its existing main building The Appellant/Applicant business is but a medium-scale business which requires a structure like any other house or building within the community that it cannot in any imaginable way alter not substantially injure the other proximate properties in the neighborhood. As manifested in the preceding argument, The City Government of Mandaluyong has already permitted the operation of business selling structure that is approximately twenty (20) meter away from the site of Appellant/Applicants proposed building and within the same zone and barangay. Given this scenario, it is but appropriate to take a second look on this instant appeal from such a standpoint. The proposed building will naturally blend with its environment and is backed-up by the consent and support of its neighbors for the business is inevitably vital and helpful to the residents of that zone

The variance, deviation or exception from City Ordinance No. 475, S-2011, will not weaken the general purposes thereof and will not adversely affect the public health, safety and welfare of the community because the products spoken of are finished pharmaceutical products and that the community is aware of existence of the Appellant/Applicants business and has given consent

In conformity with Section 35, Article IX of the subject Ordinance, Appellant/Applicant has proven that it has the support and consent of its neighbors who are very much aware of its intended legitimate operations. Without a doubt, the proposed business will help promote the general welfare and health of the community as it will provide an easier access to medicines. The products envisioned to be sold are all finished pharmaceutical products that are absolutely essential to the well-being of the residents of the community. The location of the proposed business approximate to the commercial zone of the city. It is therefore but reasonable to allow variance, deviation or exception for all conveniences and support infrastructure are all accessible that must be considered in favor of Appellant/Applicant. Moreover, Appellant/Applicant has already placed sizeable investments from hard-earned money in the project due to the fact that the area is very accessible and cost-wise. To untimely and hurriedly ease out spell doom to everyone involved when it would not be too much asking if the City will simply reconsider such variance.

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Appellant/Applicant shall be a source of economic growth as it will provide livelihood, vital community services and facilities Appellant/Applicants business will also generate the much-needed employment opportunities for Mandaluyong residents in a labor-friendly environment. Even the neighbors and the residents of that zone or barangay will surely benefit from the volume of people that the Appellant/Applicant will serve and bring the community. Allowing it to operate its pharmaceutical business will add growth and development of the City of Mandaluoyng pursuance of its Comprehensive Development Plan. Also, it will maintain the character and stability of the zone and other functional areas within the locality and promote orderly and beneficial development thereof. Finally, as intimated, it will promote and protect the health, safety, peace, comfort, convenience and general welfare of the inhabitants in the locality. The variance will be in harmony with the spirit of the Zoning Ordinance and will not alter the essential character and general purpose of the district where the exception sought is located

Having stating all the foregoing, allowing deviation, variance and exception to in favor of Appellant/Applicant will be more in consonance with the spirit of the Ordinance rather than a breach thereto. To ease out the proposed building within the residential areas will be too strict an interpretation of the Zoning Ordinance and will very well defeat it very purpose if sweepingly applied that may tend towards an invasion and impairment of fundamental personal juridical and property rights and privileges. After all, Appellant/Applicant will not be operating on a large scale and only within the usual business hours. But more importantly, the pharmaceutical merchandises that shall be stored in its proposed building are definitely, nonpollutive, non-hazardous, non-toxic or non-flammable. Concededly, the Zoning Ordinance was enacted with the best motives and shares the concern of public safety. But in a case like the business of the Appellant/Applicant, it behooves this Honorable Board to give it due consideration for having proved itself worthy of the allowance and exception being applied for. Appellant/Applicant has been a consistent abiding-taxpayer. In all humility and candor, herein Appellant/Applicant has been and until now, is untiringly supportive of the economic development agenda of the City Government. By zealously expanding its businesses within this City and dutifully paying its taxes on time, it has emphatically demonstrated loyalty and obedience to this City, its officials and its laws.

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UNDERTAKING In order to show good faith and reverence to the City of Mandaluyong, herein Appellant/Applicant undertakes to comply with any conditions and satisfy any requirements to be laid by this Honorable Board specially found in Section 34 & 35, Article IX of the subject Ordinance thereof with the end in view of proving thereto that it is worthy of such variance and/or exceptions. In immediate compliance therewith, submitted is the architectural plan.. RELIEF WHEREFORE, premises considered, it is most respectfully prayed for the Honorable Local Zoning Board of Adjustment and Appeals that the instant appeal for variance, deviation and exception from the provision of the Mandaluyong City Ordinance No. 475, Series 2011 be GRANTED thereby allowing the consummation of the Mayors Permit and all other related permits and clearances from relevant government agencies of herein Appellant/Applicant. Other reliefs and remedies just and equitable are likewise prayed. Mandaluyong City, March 18, 2013.

SEE SIU KHIM TAN Appellant/Applicant

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Republic of Philippines..) City of Mandaluyong..)Sc. VERIFICATION I, Mr. SEE SIU KHIM TAN of legal age, Filipino, married with business address at No. 59 Calbayog St., Bry. Highway Hills, Mandaluyong City, after having sworn in accordance to law, hereby depose and state that: 1. I am the Secretary/Treasurer of herein Appellant/Applicant

2. By virtue of a Board Resolution dated (Annex A), I have been duly authorized to represent Appellant/Applicant in this Appeal before this Honorable Board and its proceedings and for such purpose, I have also been empowered to cause, prepare and read the foregoing Position Paper submitted thereto in support of our application for the allowance of deviation, variance and exception from the provision of Ordinance 475, Series of 2011. 3. All allegations herein are true and correct based on my own personal knowledge and from authentic records in our possession. 4. I hereby certify that we a) have not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and to best of our knowledge , no such other action or claim is pending therein; b) if there is such action or claim, a complete statement of the present status thereof; and c) if we should thereafter learn that the same or similar action or claim has been filed or is pending, we shall report that fact within five(5) days therefrom to the court wherein this aforesaid complaint has been filed. IN WITNESS WHEREOF, I have hereunto affixed my signature this18 th day of March 2013 at Mandaluyong City


SUBSCRIBED AND SWORN TO before me this __________day of _______________ 2013 in Mandaluyong, affiant exhibited to me her CTC No. _______________________________ issed on __________________ at ___________________________. NOTARY PUBLIC Doc No. ___________ Page No. __________ Book No. _________ Series 2013

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