FIRST DIVISION
G.R. No. 199172, February 21, 2018
HON. LEONCIO EVASCO, JR., IN HIS CAPACITY AS OIG CITY ENGINEER OF DAVAO CITY AND HON. WENDEL AVISADO, IN HIS CAPACITY AS THE CITY ADMINISTRATOR OF DAVAO CITY, Petitioners, v. ALEX P. MONTANEZ, DOING BUSINESS UNDER THE NAME AND STYLE APM OR AD AND PROMO MANAGEMENT, Respondents,
DAVAO BILLBOARD AND SIGNMAKERS ASSOCIATION (DABASA), INC., Respondent-Intervenor.
D E C I S I O N
LEONARDO-DE CASTRO,** J.:
As early as 2003, the City Engineer of Davao City (City Engineer) started sending notices of illegal construction to various outdoor advertising businesses, including Ad & Promo Management (APM), owned by herein respondent Alex P. Montanez, that constructed the billboards in different areas within the city. The City Engineer reminded the entities to secure a sign permit or apply for a renewal for each billboard structure as required by Ordinance No. 092-2000.CHAPTER 5 SPECIFIC
PROVISIONSArticle 1
Advertising Sign
SECTION 7 - BILLBOARD - Outdoor advertising signs shall not be allowed in a residential zone as designated in the Official Zoning Map. Adjacent billboards shall be erected in such a way as to maintain 150.00 meters unobstructed line of sight.
Billboards and other self-supporting outdoor signs along highways shall be located within a minimum of 10.00 meters away from the property lines abutting the road right-of-way.
SECTION 8 - REGULATED AREAS - Bridge approach areas within 200 meters of the following bridges shall be designated as "regulated areas" in order to preserve, among others, the natural view and beauty of the Davao River, Mt. Apo, the Davao City Skyline and the view of Samal Island, to wit:1. Generoso Bridge I and II;
2. Bolton Bridge I and II;
3. Lasang Bridge
x x x xCHAPTER 10FEES
SECTION 37 - FEES - Fees for the application of Sign Permits to be paid at the Office of the City Treasurer shall be as follows:
I. DISPLAY SURFACE
a) Sign fee shall be collected per square meter of the display surface of billboards, business signs, electrical signs, ground signs, projecting signs, roof signs, signboards and wall signs for such amount as follows:
a.1 outdoor video screen....................... P 150.00a.2 tri-wind billboard............................. P 100.00a. 3 neon................................................ P 75.00a.4 illuminated....................................... P 50.00a.5 painted-on....................................... P 30.00a.6 others............................................. P 15.00
b) Posters (per piece)................................................................................... P 5.00
c) Temporary signs (per square meter).......................................................... P 5.00
d) Other advertising and/or propaganda Materials (per square meter)......... .. P 10.00
e) Building lines/staking line and Grade (fixed amount)........................... ..... P 200.00
II. STRUCTURE
Erection of support for any signboard, billboard and the like shall be charged a fee as follows:
1) up to 4 square meter of signboard.......................................................... P 100.00
2) in every square meter or fraction thereof.................................................. P 50.00
III. RENEWAL FEE
Renewal of sign permit shall include among others the corresponding payment for the display surface and support structure of the sign as determined in accordance with this Section and Section 35 of this Ordinance.
IV. OTHER FEES
Sign fees paid under this Ordinance shall be without prejudice to an additional payment of electrical permit fee for signs with electrical devices as required in accordance with the provisions of the National Building Code.
x x x xCHAPTER 14
REMOVAL OF ILLEGAL MATERIALS
SECTION 45 - REMOVAL. The City Engineer or his duly authorized representative shall remove, upon recommendation of the Building Official, the following at the expense of the displaying party:
- Those displayed without permit from the Local Building Official, provided that the displaying party shall be given a reasonable period of sixty (60) days from receipt of the notice to comply with the sign permit requirement provided hereof;
- Those displayed with a permit but without bearing the necessary permit marking requirement as provided in Section 39 hereof, provided that the displaying party shall be given a reasonable period of sixty (60) days from receipt of the notice to comply with the marking permit requirement provided hereof;
- Those displayed beyond the expiry date as provided in Section 34 hereof, however, if the displaying party intends to renew such permit even beyond the period sought to be extended, the same shall be given a reasonable period of sixty (60) days from receipt of the notice to comply with the renewal requirement provided hereof without prejudice to the payment of surcharge of 25% of the total fees for such delay.
- Those displayed in public places and/or structures as stated in section 41;
- Those billboards, business signs, electrical signs, ground signs, projecting signs, roof signs or wall signs which are installed or constructed in violation of this Ordinance or other applicable statues and ordinances.
WHEREFORE, conformably with the foregoing, the instant prayer for the issuance of the writ of preliminary injunction is hereby GRANTED. The respondents, namely, OIC Leoncio Evasco, Jr. of the Davao City Engineer's Office and Davao City Administrator Wendel Avisado are hereby restrained from implementing the Order of demolition dated March 17, 2006 and from actually demolishing the advertising structures of petitioner Alex P. Montañez along Bolton Bridge and Bankerohan Bridge until the main case is decided and tried on the merits or until further orders from this Court.Meanwhile, in response to the damage caused by typhoon Milenyo in September 2006 especially to various billboard structures within Metro Manila, former President Gloria Macapagal-Arroyo (President Arroyo) issued Administrative Order (AO) No. 1608 directing the Department of Public Works and Highways (DPWH) to conduct nationwide field inspections, evaluations, and assessments of billboards and to abate and dismantle those: (a) posing imminent danger or threat to the life, health, safety and property of the public; (b) violating applicable laws, rules and regulations; (c) constructed within the easement of road right-of-way; and/or, (d) constructed without the necessary permits. President Arroyo also issued AO No. 160-A9 specifying the legal grounds and procedures in the abatement of billboards and signboards constituting public nuisance or other violations of law.
WHEREFORE, and in view of all the foregoing, judgment is rendered declaring as void and unconstitutional the following provisions of City Ordinance No. 092-2000 as follows:Both parties moved for reconsideration. Thus, in its Joint Order dated April 1, 2009, the RTC modified its original decision, to wit:(a) Sections 7, 8 and 41for being contrary to P.D. 1096 or the National Building Code of the Philippines.
The injunction previously issued base (sic) on the aforesaid provisions of the ordinance is hereby made permanent.13
WHEREFORE, and in view of all the foregoing, the instant motion for partial reconsideration of petitioner is GRANTED modifying the court's decision dated JANUARY 19, 2009 as follows:Aggrieved, the petitioner City Engineer sought recourse before the Court of Appeals.
(a) declaring as void and unconstitutional the following provisions of City Ordinance No. 092-2000, as follows:
aa) Sections 7, 8 and 37, for being contrary to P.D. 1096 or the National Building Code of the Philippines;
[bb] declaring herein Section 41 of City Ordinance No. 092-2000 as deleted; and
[cc] declaring the injunction previously issued by the Court based on the aforesaid provisions of the Ordinance, permanent.
Respondents' (sic) motion for reconsideration is DENIED.14
WHEREFORE, premises foregoing, the appeal is hereby DENIED and the January 19, 2009 Decision and April 1, 2009 Joint Order of Branch 14 of the Regional Trial Court of Davao City in Civil Case No. 31,346-06 the Regional Trial Court (sic) AFFIRMED with modification.Again, both parties moved for reconsideration. Subsequently, the Court of Appeals promulgated its Amended Decision, to wit:
The appealed Decision and Joint Order are affirmed insofar as it declares Section 7 and 8 of City Ordinance of Davao No. 092 series of 2002 (sic) null and void. Section 45 of the challenged Order (sic) is likewise declared null and void. We, however, reinstate Section 41 of the challenged Ordinance.15
WHEREFORE, premises foregoing, respondent-appellant City of Davao's Motion for Reconsideration is hereby DENIED. Petitioner-appellee's prayer for the categorical declaration of the nullity of Section 37 of the challenged Ordinance and rectification of the dispositive portion of our June 14, 2011 Decision are GRANTED. The fallo of said decision should now read:Hence, the present petition."WHEREFORE, premises foregoing, the appeal is hereby DENIED and the January 19, 2009 Decision and April 1, 2009 Joint Order of Branch 14 of the Regional Trial Court of Davao City in Civil Case No. 31,346-06 are AFFIRMED with modification.
The appealed Decision and Joint Order are affirmed insofar as it declares Section 7, 8 and 37 of City Ordinance of Davao No. 092 series of 2002 (sic) null and void. Section 45 of the challenged Ordinance is likewise declared null and void. We however, reinstate Section 41 of the challenged Ordinance."16
The petitioner City Engineer argues that Ordinance No. 092-2000 is not inconsistent with the National Building Code as follows: as to Section 7, it cannot be held to be inconsistent with Section 1002,21 which is under Chapter 10, of the National Building Code because said provision applies to all building projections, in general. Signs and billboards are specifically governed by Chapter 20 thereof. As to Section ff, Section 458(a)(3)(iv)22 of Republic Act No. 7160 or the Local Government Code of the Philippines (LGC), the city government has the power to regulate the display of signs for the purpose of preserving the natural view and beauty of the surroundings. Aesthetic considerations do not constitute undue interference on property rights because it merely sets a limitation and, in fact, still allows construction of property provided it is done beyond the setback. As to Section 37, when it nullified the same, the Court of Appeals did not state the specific legal findings and bases supporting its nullity. Thus, the assailed decision violated Section 14, Article VIII23 of the Constitution. As to Section 45, the Court of Appeals went beyond its authority when it invalidated the said Section because the parties, both petitioners and respondents, did not raise any issue as to the validity of said section. Moreover, the city engineer is mandated to act as the local building official. In turn, under the LGC, the city engineer is empowered to perform duties and functions prescribed by ordinances, such as Ordinance No. 092-2000. Thus, the city engineer has the authority to cause the removal of structures found to have violated the ordinance.I
WHETHER OR NOT SECTION 7 OF SIGNAGE ORDINANCE, WHICH IS LIFTED/COPIED FROM UNCHALLENGED PROVISION OF THE IMPLEMENTING RULES AND REGULATION (SIC) OF NATIONAL BUILDING CODE OF THE PHILIPPINES, RUNS CONTRA[R]Y TO THE NATIONAL BUILDING CODE ITSELF?II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 8 OF SIGNAGE ORDINANCE NULL AND VOIDIII
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 37 OF SIGNAGE ORDINANCE NULL AND VOIDIV
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECLARING SECTION 45 OF SIGNAGE ORDINANCE NULL AND VOID20
Endnotes:
** Per Special Order No. 2536 dated February 20, 2018.
1Rollo, pp. 63-82; penned by Associate Justice Rodrigo F. Lim, Jr. with Associate Justices Pamela Ann Abella Maxino and Zenaida T. Galapate-Laguilles concurring.
2 Id. at 108-111.
3 Available at http://ordinances.davaocity.gov.ph/Download.aspx. (Last visited on May 5, 2017.)
4 According to the Court of Appeals Decision dated June 14, 2011.
5See rollo, pp. 194-196.
6 Id. at 112-128.
7 Id. at 165-167.
8 Dated October 4, 2006 and entitled, "Directing The Department Of Public Works And Highways (DPWH) To Conduct Field Inspections, Evaluations And Assessments Of All Billboards And Determine Those That Are Hazardous And Pose Imminent Danger To Life, Health, Safety And Property Of The General Public And To Abate And Dismantle The Same."
9 Dated October 10, 2006.
10 Dated October 6, 2006, rollo, p. 146, Annex "3."
11Rollo, pp. 129-145.
12 Id. at 282-290.
13 Id. at 289-290.
14 Id. at 293.
15 Id. at 82.
16 Id. at 110.
17 495 Phil. 289 (2005).
18 104 Phil. 443 (1958).
19Rollo, pp. 71-80.
20 Id. at 38-39.
21 SECTION 1002. Projection into Alleys or Streets. — (a) No part of any structure or its appendage shall project into any alley or street, national road or public highway except as provided in this Code.
(b) Footings located at least 2.40 meters below grade along national roads or public highway may project not more than 300 millimeters beyond the property line.
(c) Foundations may be permitted to encroach into public sidewalk areas to a width not exceeding 500 millimeters; provided, that the top of the said foundations is not less than 600 millimeters below the established grade; And provided, further, that said projections does not obstruct any existing utility such as power, communication, gas, water, or sewer lines, unless the owner concerned shall pay the corresponding entities for the rerouting of the parts of the affected utilities.
22 SECTION 458. Powers, Duties, Functions and Compensation. - (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: x x x (3) Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the city and pursuant to this legislative authority shall: x x x (iv) Regulate the display of and fix the license fees for signs, signboards, or billboards at the place or places where the profession or business advertised thereby is, in whole or in part, conducted[.]
23 Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.
24Rollo, pp. 421-426.
25See Social Justice Society (SJS) v. Atienza, Jr., 568 Phil. 658, 699-700 (2008); City of Manila v. Laguio, Jr., supra note 17 at 307-308.
26See Gancayco v. City Government of Quezon City, 674 Phil. 637 (2011).
27 385 Phil. 586, 601-602.
28 Section 16(hh), Davao City Charter.
29See Gancayco v. City Government of Quezon City, supra note 26.
30See Ferrer, Jr. v. Bautista, 762 Phil. 233, 262 (2015); Legaspi v. City of Cebu, 723 Phil. 90 (2013); Gancayco v. City Government of Quezon City, id.
31Smart Communications, Inc. v. Municipality ofMalvar, Batangas, 727 Phil. 430, 447 (2014).
32 Id., citing Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management, 686 Phil. 357, 373 (2012).
33See Philippine Long Distance Telephone Company v. Davao City, 122 Phil. 478 (1965).
34See Social Justice Society (SJS) v. Atienza, Jr., supra note 25; Ferrer, Jr. v. Bautista, supra note 30.
35 Ordinance No. 092-2000, Section 3.
36 Id., Section 2 states, STATEMENT OF POLICY. It is the policy of the City Government of Davao to: (1) safeguard its people's life and property by providing all signs and sign structures prescribed standards relative to their site, design, load and stresses, anchorage, quality of materials, construction and maintenance; (2) keep its premises clean and orderly by imposing basic discipline and regulation in the location of signs and sign structures both in public and private places; (3) display or convey only messages or visuals that conform to public decency and good taste; and (4) install or display all kinds of signs in a manner that the harmonious aesthetic relationship of all units therein is presented.
37 Id., Section 7.
38 Id., Section 9.
39 Id., Section 8.
40 Id., Section 37.
41 Id., Section 45.
42Ferrer, Jr. v. Bautista, supra note 30, citing Victorias Milling Co., Inc. v. Municipality of Victorias, 134 Phil. 180 (1968).
43Ferrer, Jr. v. Bautista, supra note 30.
44Social Justice Society (SJS) v. Atienza, Jr., supra note 25.
45 Id.
46Rollo, pp. 194-196.
47 Id. at 146.