ADDENDUM TO LEGAL OPINION NO. 5-12-2011

ADDENDUM

[Legal Opinion Re Proposed Mini-Hydropower Plant Project]


The primordial issue that needs to be resolved via the instant addendum is –
Whether or not a barangay resolution from the Sangguniang Barangay of Brgy. Carpenter Hill is a pre-requisite before the Sangguniang Panlungsod of the City of Koronadal could grant legislative authority to the City Mayor to enter into a Memorandum of Agreement (MOA) with a private entity relative to the rehabilitation of the mini-hydro power plant situated in the said barangay.

The undersigned answers in the NEGATIVE.

Nowhere is it found in the Local Government Code of 1991 (LGC ’91) that a favorable resolution from the Sangguniang Barangay must first be secured before the Sangguniang Panlungsod could grant the City Mayor the legislative authority to enter into a Memorandum of Agreement (MOA) in behalf of the city government. Otherwise, it would place the operation of the city government under the discretion, or worse, at the mercy of its own component unit.

The requirement of prior legislative authority is found in Section 22 of the LGC ’91 which provides, thus:

x x x

“(c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial capitol or the city, municipal or barangay hall.”

x x x

Clearly, nothing therein suggests or implies any prior referral to the barangay council for the passage of a barangay resolution.
In relation to the rehabilitation of the hydro-power plant, the LGC ’91 likewise provides, to wit:

Section 17. Basic Services and Facilities. -

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provisions of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, the following:

x x x

(3) For a Province:
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and mini-hydroelectric projects for local purposes;

x x x

(4) For a City:

All the services and facilities of the municipality and province xxx.

x x x

While the LGC ’91 requires prior consultation with respect to the implementation of any project or program, said requirement is specifically obtaining among national agencies and offices only vis-à-vis the LGUs, thus:

Section 2. Declaration of Policy. -

x x x

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.

x x x

CHAPTER III

Intergovernmental Relations

ARTICLE I

National Government and Local Government Units

x x x

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

x x x

To be certain, the prior public consultation, specifically with the barangay unit concerned, is a requirement found, not under the LGC ’91, but under the Environmental Impact Assessment process pursuant to the REVISED PROCEDURAL MANUAL FOR DENR ADMINISTRATIVE ORDER NO. 30 SERIES OF 2003 (DAO 03-30) (Implementing Rules and Regulations of Presidential Decree No. 1586, Establishing the Philippine Environmental Impact Statement System), which provides, to wit:

x x x

“11) Public Participation in the EIA Process

Public participation shall be demonstrated through the following activities:

a) As part of the social preparation process at pre-Scoping, Information, Education and Communication (IEC) of LGUs is now explicitly required at the minimum of PEIS/EIS based applications for new or modification proposals for which Public Scoping is a requirement. The IEC serves as a basis for preliminary identification of stakeholders and related issues in preparation for the Scoping proper. The revised Manual presents proforma documents and supplementing guidelines for proper and timely identification of stakeholders to be invited for Scoping and to be covered by the EIA Study.

b) Public Scoping for PEIS/EIS-based new projects is now more meaningful as community inputs will precede the Technical Scoping of the EIA Review Team with the Proponent, and will be formally considered before the sign-off of the Scoping Checklist that comprises the final TOR of the EIA Study. Key stakeholder representatives, EMB personnel, EIA Review Committee and the Proponent/Preparer representatives also sign off the List of Issues raised during the Public Scoping.

c) The conduct of the EIA Study shall include local stakeholders, who may serve as local expert sources, aides/guides and resource persons in primary data collection to optimize access to indigenous knowledge of the environment, or as interviewers/ interviewees in the socio-economic/perception surveys which shall be used as the basis for the subsequent formulation of social development plans, IEC, monitoring plans and other components of the environmental management plans. LGUs and government agencies shall specifically be consulted and involved in the drafting of the project’s Social Development Plan (SDP) Framework. The EIA Scoping and EIA Report Outline/Content allocate specific sections for a presentation and discussion of Public Participation process and outcomes, to be subject to the review of the EIA Review Committee and evaluation of the EMB during the Site Visit done simultaneously with either Public Hearing or Public Consultation, where applicable.

d) As a form of disclosure of the EIA findings, Public Hearing is required for all new ECPs for which Public Scoping was undertaken and for PEIS-based applications. A waiver of the Public Hearing requested by the Proponent may be granted by the DENR-EMB subject to the absence of mounting opposition or written request for one with valid basis and Public Consultation may be conducted instead of Public Hearing. The Notice of Public Hearing provides explicit instructions on registration, access to the EIA Report (with Project Fact Sheet written in the local dialect or mixed with the popularly known language of the host communities), preparation of position papers, and on the mechanics of how issues may be received before or during the hearing. Prior to Public Hearings or Public Consultations, the Proponent is required to give copies of the full EIA Report to the EMB RO and host municipalities; copies of Executive Summary to the host barangays; and copies of Project Fact Sheets to other stakeholders for a well-informed participation in the hearing/consultation process.

e) Once an ECC/CNC is issued, the EIA recommendations are transmitted by the DENREMB to the concerned GAs and LGUs to be considered in their decision-making process. This results to a more integrated, coordinated and participative safeguarding of environmental concerns.

f) Post-ECC multi-sectoral validation of a Proponent’s self-monitoring results is instituted for PEIS/EIS-based projects. On the side of the EMB, through its Project Environmental Monitoring and Audit Prioritization Scheme (PEMAPS), a mechanism is provided for determination of EMB monitoring strategy and EMB monitoring priority rank a project will be assigned to, which provides guidance to the public on the applicable monitoring schemes for the project.”

x x x

However, the EIA Process has nothing to do with the requirement of legislative authority under consideration as such requirement is prescribed in an application for Environmental Compliance Certificate (ECC), which properly falls within the province of the DENR.

The execution of the proposed MOA is simply an initiatory act before the whole process shall take place, to include the conduct of a feasibility study by the proponent, with the consent of the National Irrigation Administration (NIA) which owns the project. It is during the feasibility study (FS) stage when a proponent defines its range of actions and considers project alternatives. The MOA will simply serve as the basis for securing the consent of NIA in leasing its aforesaid property for purposes of rehabilitation to be jointly undertaken by the proponent and the LGU. Indeed, the proposed MOA provides that the LGU shall “assist in facilitating necessary and related permits and licenses which are required by national and/or local law for the rehabilitation and later operation of the HEP system” and shall “take the lead in the peaceful and diplomatic resolution of issues with landowners within the HEP system and/or other interested parties.”

Respectfully submitted:



EUFEMIO A. SIMTIM, JR.
City Legal Officer

LEGAL OPINION NO. 11-18-2010

Republic of the Philippines
Province of South Cotabato
City of Koronadal
CITY LEGAL OFFICE
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LEGAL OPINION NO. ________


DATE : November 18, 2010

TO : ENGR. RUEL C. TIANCHON
Office of the City Engineer
City of Koronadal

RE : Application for Demolition Permit of Robert V. Dizon

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Respectfully returned to the City Engineer, City Engineering Office, City of Koronadal, his within request for opinion on whether the City Engineer may issue a Demolition Permit in as much as an Adverse Claim and a Notice of Lis Pendens have been annotated on the TCT-T-13703.

The undersigned are of the opinion that the City Engineer may grant demolition permit being applied for subject to the conditions set forth under the National Building Code and related laws.

While the issue of ownership is one of a justiciable character, the determination of which is lodged with the courts, the matter of the issuance of a demolition permit is well within the authority vested by law upon the building official. Unless prevented by a temporary retraining order (TRO) or a writ of injunction, the exercise of such authority is warranted as long as the conditions for the issuance of a demolition permit are met and satisfied, especially so when the property involved poses hazards to the public.

A notice of lis pendens is governed by Rule 13, Section 14 of the Revised Rules of Court, which states:

x x x


“Sec. 14. Notice of lis pendens. — In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names.

The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded.” (Emphasis added)

x x x


A notice of lis pendens is an announcement to the whole world that a particular real property is in litigation, serving as a warning that one who acquires interest over said property does so at his own risk, or that he gambles on the result of the litigation over the said property. The filing of a notice of lis pendens charges all strangers with notice of the particular litigation referred to therein and, therefore, any right they may thereafter acquire over the property is subject to the eventuality of the suit. Such announcement is founded upon public policy and necessity, the purpose of which is to keep the properties in litigation within the power of the court until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent alienation. (LU vs. LU YM, SR., G.R. No. 153690, 4 August 2009). The Honorable Supreme Court has likewise held, thus:


x x x


“The filing of a notice of lis pendens has a two-fold effect: (1) to keep the subject matter of the litigation within the power of the court until the entry of the final judgment in order to prevent the final judgment from being defeated by successive alienations; and (2) to bind a purchaser, bona fide or not, of the land subject of the litigation to the judgment or decree that the court will promulgate subsequently.”

This Court has interpreted the notice as:

“The notice is but an incident in an action, an extrajudicial one, to be sure. It does not affect the merits thereof. It is intended merely to constructively advise, or warn, all people who deal with the property that they so deal with it at their own risk, and whatever rights they may acquire in the property in any voluntary transaction are subject to the results of the action, and may well be inferior and subordinate to those which may be finally determined and laid down therein. The cancellation of such a precautionary notice is therefore also a mere incident in the action, and may be ordered by the Court having jurisdiction of it at any given time. And its continuance or removal-like the continuance or removal of a preliminary attachment of injunction-is not contingent on the existence of a final judgment in the action, and ordinarily has no effect on the merits thereof.” (Heirs of Sy Bang vs. Sy, G.R. No. 114217, 13 October 2009)

x x x


A notice of adverse claim, on the other hand, is nothing but a notice of a claim adverse to the registered owner, the validity of which is yet to be established in court at some future date, and is no better than a notice of lis pendens which is a notice of a case already pending in court. (Acap vs. Court of Appeals, G.R. No. 118114. December 7, 1995)

Unless therefore a TRO or a writ of injunction is issued by the court, the building official is not prohibited by a mere notice of lis pendens or of an adverse claim from issuing a demolition permit, provided that all the requirements are complied with.

Yours truly,



[Sgd.]ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer


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[Sgd.]ALEXANDER A. ALCAZAR
Legal Assistant II


Cc:
Office of the City Mayor
Office of the City Engineer
File