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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.
Petitioner’s 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 Cove’s hotel.
Petitioner’s 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
Respondent’s 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 LGU’s refusal to issue petitioner the building permit was justified.
2) WON petitioner’s 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:

an act. the hotel is not a nuisance per se. through legislation. (2) annoys or offends the senses. to promote general welfare and to fulfill the objectives of the government. Here. GENERAL WELFARE CLAUSE General welfare clause authorizes the LGUs to enact ordinances. A. Hotels are not nuisance per se. He consciously chose to violate not only the Ordinance but also National Building Code. or structure. . It is merely the hotel’s particular accident – its location – and not its inherent qualities that rendered it nuisance Property valuation is not the litmus test. and in line with a court order that is required under normal circumstances is dispensed with. not only to carry into effect and discharge such duties as are conferred upon them by law. The hotel was demolished not exactly because it is a nuisance but because it failed to comply with the legal requirements prior to construction. Petitioner defied the zoning administrator’s ruling. B. More controlling is the property’s nature and conditions. (3) shocks. LGU MAY PROPERLY ORDER THE HOTEL’S DEMOLITION. which should be evaluated to see if it qualifies as a nuisance as defined under the law. Under the premises. 2. (4) obstructs or interferes with the free passage of any public highway or street. but also those for the general welfare of the municipality and its inhabitants Personal liberty. which is a nuisance at all times and under any circumstances. business.a)The stability of the ground’s foundation is adversely affected by nearby body of water b)High rising storm surges NUISANCE – any act. Nuisance per accidens Nuisance per se. or (5) hinders or impairs the use of property. establishment. regardless of location or surrounding. property and lawful businesses and occupations may be interfered with by the government. IV. occupation. Nuisance per accidens . However. it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance. Hotels do not per se immediately affect safety of persons.depends upon certain conditions and circumstances. CRITIQUE I agree with the SC ruling. Whether the building constituted a nuisance per se or a nuisance per accidens becomes immaterial. it is nuisance per accidens – it may be authorized in one location and in another it is a nuisance depending on surrounding conditions. or anything else that: (1) injures or endangers the health or safety of others. LGC empowered the mayor to order the closure and removal of illegally constructed establishments for failing to secure necessary permits. or any body of water. laying down the requirement of building permits before constructing any building. condition. NO. and its existence being a question of fact. defies or disregards decency or morality. omission. Nuisance per se vs.

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