No-Build Zones and National Permits: What Aquino v. Malay Means for Developers

The Supreme Court's ruling in Crisostomo B. Aquino v. Municipality of Malay, Aklan settled an important question for property developers: does a national permit from the Department of Environment and Natural Resources (DENR) allow construction that a local government ordinance prohibits? The answer is no. A local government unit (LGU) may order the demolition of a structure built within a designated no-build zone, even if the owner holds a national permit. The case clarifies the limits of national permits and the scope of local zoning authority.

The Facts of the Case

Crisostomo Aquino owned Boracay West Cove, a hotel in Malay, Aklan, constructed within 25 meters of the mean high water mark—an area defined as a no-build zone under Municipal Ordinance 2000-131. The hotel operated under a Forest Land Use Agreement for Tourism Purposes (FLAgT) issued by the DENR, which allowed the use of forest land for tourism improvements.

The Mayor of Malay issued Executive Order No. 10, ordering the demolition of the hotel for violating the ordinance. Aquino challenged the order, arguing that the FLAgT granted him the right to build and that the DENR, not the municipality, had jurisdiction over the area. He also claimed the demolition order violated due process.

Demolition Orders as Quasi-Judicial Acts

The Court of Appeals dismissed Aquino's petition for certiorari, holding that the mayor's action was executive in nature and not reviewable through that remedy. The Supreme Court disagreed.

Citing City Engineer of Baguio v. Baniqued, the Court held that a mayor exercises quasi-judicial functions when determining whether a structure violates local ordinances and ordering its demolition. This determination requires judgment and discretion, which are hallmarks of quasi-judicial authority. The mayor's decision was therefore subject to judicial review.

Nuisance Per Se vs. Nuisance Per Accidens

The Court applied Article 694 of the Civil Code, which defines a nuisance as anything that injures health, safety, or property. It distinguished between two types:

• A nuisance per se is a nuisance at all times and under any circumstances, regardless of location.
• A nuisance per accidens becomes a nuisance only because of particular conditions or circumstances.

The hotel was not a nuisance per se, but a nuisance per accidens—its location within the no-build zone was the problem. This distinction did not, however, prevent demolition.

The Mayor's Power to Order Demolition

The Court affirmed the mayor's authority under Section 444(b)(3)(vi) of the Local Government Code (LGC). This provision empowers municipal mayors to require owners of illegally constructed buildings to obtain necessary permits or face fines, or to order the demolition of structures that violate any law or ordinance.

Aquino failed to secure the required permits and clearances before constructing and operating the hotel. This violated Municipal Ordinance 2000-131 and the permit requirements of the National Building Code. These violations gave the LGU sufficient grounds to order demolition after due notice and hearing.

Due Process Was Satisfied

Aquino argued that the demolition order violated due process. The Court rejected this claim. Public officers are presumed to have performed their duties regularly, and Aquino failed to prove that Boracay West Cove was denied an opportunity to be heard. He had received notices from the municipality requiring compliance with the zoning ordinance but did not act on them.

A FLAgT Does Not Override Local Ordinances

The Court also rejected the argument that the FLAgT superseded the municipal ordinance. Rights under a FLAgT are not absolute and do not exempt the holder from complying with local laws. The conditions of the FLAgT and the restrictions of the ordinance are cumulative, not mutually exclusive. A FLAgT does not excuse compliance with the National Building Code's permit requirements.

Similarly, the Court dismissed the claim that the DENR had primary jurisdiction. The dispute concerned compliance with permit, clearance, and zoning requirements—not environmental protection. The mayor's power to order demolition under the LGC is distinct from the DENR's supervisory powers over forestry projects.

Practical Takeaways

• National permits do not override local zoning ordinances. A FLAgT or similar DENR authorization does not excuse compliance with local no-build zones or building permit requirements.
• Secure all permits before construction. Failure to obtain the necessary local permits and clearances can result in demolition orders.
• Demolition orders are reviewable. A mayor's decision to order demolition is a quasi-judicial act, subject to certiorari review for grave abuse of discretion.
• Due process requires notice and hearing. Owners must be given an opportunity to be heard before a demolition order is issued, but ignoring notices from the LGU will not protect against enforcement.
• Compliance is cumulative. Developers must satisfy both national and local requirements; one does not substitute for the other.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.