LEGAL OPINION RE ESTABLISHMENT OF PUBLIC TRANSPORT TERMINAL

Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER



DATE : 30 May 2012

TO : HON. PETER B. MIGUEL, MD, FPSO-HNS
City Mayor
This City

RE : LEGAL REQUIREMENTS FOR THE ESTABLISHMENT OF PUBLIC
TRANSPORT TERMINAL


Sir:
In your letter dated 3 May 2012, you requested for a legal opinion/assessment on the use of the city’s proposed integrated public terminal vis-à-vis the existing transportation and traffic laws and regulations.

Republic Act No. 7160, otherwise known as the “Local Government Code of 1991” provides for the power of the LGU, through the Sangguniang Panlungsod, to regulate the use of streets, the traffic as well as the operation of transport terminals, thus:

x x x

“Section 458, par. (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:
xxx
(vi). Subject to the guidelines prescribed by the Department of Transportation and Communications, regulate the operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city;

x x x

“Section 458, par. (4). Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall:
xxx
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports;

x x x

“Sec. 458, par. (5). Approve ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, shall:
xxx
(v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, parks and other public places and approve the construction, improvement repair and maintenance of the same; establish bus and vehicle stops and terminals or regulate the use of the same by privately-owned vehicles which serve the public; regulate garages and the operation of conveyances for hire; designate stands to be occupied by public vehicles when not in use; regulate the putting up of signs, signposts, awnings and awning posts on the streets; and provide for the lighting, cleaning and sprinkling of streets; and public places;

(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon, and when necessary in the interest of public welfare, authorize the removal or encroachments and illegal constructions in public places;

x x x

Similar provisions are found under Article IV, Section 10, (D), of Republic Act No. 8803, otherwise known as “An Act Converting the Municipality of Koronadal, South Cotabato Province, Into A Component City To Be Known As The City Of Koronadal.”

There is no doubt as to the power of the LGU to establish its own integrated transport terminal. Also, the power of the LGU to regulate the use of the same is clearly provided under the law. However, the Department of Interior and Local Government (DILG) and the Department of Transportation and Communications (DOTC) had issued Joint Memorandum Circular No. 01, s. 2008 (JMC No.1 for brevity), on 10 September 2008, providing for the guidelines in the review of local ordinances, orders, rules and regulations concerning public transportation. Specifically, JMC No. 1 provides for the guidelines governing the establishment and operation of public transport terminals, as follows:

x x x

“3.2 On the Establishment and Operation of Public Transport Terminals
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. Prior to the commencement of the construction, a public hearing must be held and publication of the construction of the public transport terminals in local newspapers of general circulation and/or posting in at least four conspicuous and publicly accessible places including the main entrance of the city/municipal hall must be observed.

Public hearing includes an official notification of authorized representatives of the LTO, LTFRB and other concerned agencies, public transport operators/drivers and stakeholders.

b. The use of public terminal established or designated by LGUs shall not be imposed compulsorily, directly or indirectly, on operators/drivers with existing private terminals.

Public and private transportation terminals refer to any building or facility constructed or designated by the local government unit and by a private transport operator, respectively, primarily for the purpose of loading and unloading of passengers and cargoes by the different modes of public transportation and for the necessary repair and maintenance of equipment to insure public safety.

c. Vehicles merely passing through cannot be compelled to use the public terminals established or designated by the LGUs.

Passing-through public utility vehicles refer to public utility vehicles plying the routes between points of origin and designation.

d. LGUs cannot close down existing private terminals or curtail the operation of said terminals for the purpose of using the public transport terminals established or designated by the LGUs as this is tantamount to encroachment by LGUs upon property rights of private individuals and the legitimate use thereof.

e. The standards set by the LTFRB as prescribed in its Memorandum Circular No. 2008-013 dated June 4, 2008 or any amendment thereto must be complied with by all public and private transport terminals, to wit:

1. - Adequate and comfortable benches or sets with backrests for waiting passengers;
2. - Roofing that would provide sufficient shade to passengers from heat of the sun and rain;
3. - Information and Passenger Assistance Counters;
4. - Appropriate and adequate signages;
5. - Sufficient number of security personnel for the protection of passengers from abusive vendors, pickpockets and other lawless elements and for the proper inspection of baggages; and
6. - Diaper changing table inside the female restrooms for female passengers traveling with infant or babies;
In addition, the following standards must also be included for inter-modal transport terminal or one which can simultaneously accommodate or serve at east three types of public land transport vehicles, such as PUBs, PUJs, Multi-Cabs, Vans/AUVs, etc. and for bus terminal or terminal which caters to less than three vehicle types, one of which would be public utility buses, to wit:
1. - Concrete pavement and flooring;
2. - Wide entrances and exits for easy mobility to and from the terminal;
3. - Provision for communication facilities (such as telephone, fax machines, internet, etc.);
4. - Installation of Public Address System Facilities and CCTV cameras or monitors;
5. - Separate rest rooms for male and female disabled passengers which must at all times be clean, sufficiently lighted, foul odor-free, ventilated with clean running water, flush system, toilet seat with cover, lavatory, waste bin, toilet paper, mirror, dispenser with soap, hand dryer, dry flooring, functional door lock, and janitorial maintenance personnel;
6. - Provision for separate and sufficient parking lots or spaces for each mode of transport, for inter-modal transport terminal only; and
7. - Priority lane for persons with special needs specifically pregnant women, mother travelling with infants or small children and those with physical disabilities, for inter-modal transport terminal only.

f. The minimum location standards provided under the HLURB’s Locational Guidelines and Standards for Land Transportation Terminal and Garages pursuant to Board Resolution no. R-408, series of 19888, or any amendment thereto, must be fully satisfied, to wit:

1. - Terminals should be more than 100 meters away from institutional establishment particularly schools and hospitals.
2. - The terminal must be accessible to commuters, i.e. transfer routes are available or within its service radius. However, direct access to major thoroughfares especially high speed highways and expressways should be discouraged for safety and smooth traffic flow purposes.
3. - The approved zoning ordinance should indicate the location of bus stations/terminals, freight/truck terminals which should be at the periphery of a commercial zone.
4. - If the municipality has no approved zoning ordinance, the location of bus stations/terminals, freight/truck terminals should be outside the center of commercial activities to reduce and minimize street congestion.
5. - Jeepney/taxi terminal may be located within the central business district or commercial zone provided, it should not be major road intersection.
6. - Garage must be located at the outskirt of the business center or commercial zone.

g. The standards set by the Department of Health as provided under Chapter IX Section 54 of the Sanitation Code of the Philippines or any subsequent amendment thereto, must be duly observed, to wit:

1. - Rest areas, bus terminals, bus stops and service stations shall be established with ample area to prevent overcrowding of motor vehicles and travelers.
2. - They shall be provided with adequate ventilation and lighting away from sources of nuisance.
3. - Safe and adequate water supply shall be provided in accordance with the provisions of Chapter II of this Code.
4. - Refuse collection and disposal shall be in accordance with the provisions of Chapter XVII of the Sanitation Code of the Philippines.
5. - Adequate numbers of comfort rooms shall be provided as well auxiliary facilities therein in accordance with the provisions on Chapter XVII of the Sanitation Code of the Philippines.
6. - Waiting sheds for commuters shall be of adequate size to comfortably accommodate a minimum of thirty persons. Floors shall be of smooth concrete finish and adequate sitting facilities provided for.
7. - Sale of foodstuffs in those establishments shall be done in conformity with the provisions of Chapter III of the Sanitation Code of the Philippines.

h. Should there be an existing LGU-operated or owned Inter-Modal Grand Terminal which is compliant with LTFRB standards, the existing transport terminals of franchise grantees within the said LGU should be considered as garage and the use of the LGU operated or owned inter-modal terminal is hereby encouraged.

i. Existing transport terminals, both LGU-owned and privately-owned, not in compliance with the aforementioned standards shall be given a period of one (1) year from the effectivity of this Joint Memorandum Circular to implement and fully comply with the policies, standards and limitations set forth above.

j. Any further extension of time for compliance may be submitted by the concerned owner or operator, transport association or cooperative on justifiable reasons, subject to the approval of the LTFRB or its Regional Directors, as the case may be.

3.4 On the Issuance of Traffic Citation Tickets
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. The LGUs can issue traffic citation tickets but only the LTO and their deputized agents can confiscate driver’s licenses. However, in Metro Manila, the single ticketing system shall be worked out.

Traffic citation ticket refers to traffic violation receipts issued by traffic law enforcers in the course of their enforcement of traffic rules and regulations.
3.5 On the Imposition of Other Local Fees and Charges Affecting
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. As a general rule, the LGUs should desist from unilaterally increasing fees and charges that would contribute to higher public transport cost. Increases in fees and charges should be in coordination with the LTFRB and should be commensurate with the administrative expenses. Before changes in fees can be imposed, there must be a public hearing and publication in local newspapers of general circulation and/or posting in at least four (4) conspicuous places including the main entrance of the city/municipal hall prior to said imposition.

b. As provided for under Section 10 of Republic Act no. 8794 (An Act Imposing a Motor Vehicle User’s Charge on Owners of all Types of Motor Vehicles and for other Purposes), to wit:

“No other tax, fee or any charge of similar nature, as the Motor Vehicles Users Charge shall be imposed by any political subdivision or unit in the country.”

c. Fees to be charged in the use of public transport terminals shall be reasonable and commensurate with the administrative and operating expenses in the operation of the said terminals.

Fees and charges refer to fees collected or charged by LGUs relating to public transport and do not include fines and penalties imposed for violation of traffic rules and regulations.
x x x

A full copy of JMC No.1 is attached hereto as ANNEX “A” for your ready reference.

A question however that may possibly confront the LGU is how to deal with the existing private transport terminals. It is clear that, as a general rule, the LGU cannot stop the operation of existing private transport terminals simply by reason of the establishment of a public transport terminal. There are, however, legitimate reasons upon which grounds the existing private transport terminal may be ordered to stop its operation without running afoul with the JMC, to wit:

1. If the existing private transport terminal constitutes a nuisance under the Civil Code, Fire Code or the National Building Code;
2. If the existing private transport terminal violates the Local Revenue Code;
3. If the existing private transport terminal is not compliant with the requirements set by the JMC; or
4. If the existing private transport terminal is a non-conforming entity under the local zoning ordinance based on the adopted revised Comprehensive Land Use Plan.

Further, it is worthy to note that under the same JMC No. 1, tricycles are not allowed to ply along national highways, thus:

x x x

“3.0 Guidelines
3.1 On the Granting of Franchises to Tricycles
All locally issued ordinances, orders, rules and regulations should be in the conformity with the following policies, standards and limitations:
x x x
b) Tricycle operation should only be confined along the city or municipal roads, not along national roads and is limited only to routes not traversed by higher modes public transport. However, the local Sanggunian may allow if there is no other alternative route.
Municipal and city roads refer to roads within the poblacion; they are roads that connect to provincial and national roads and provide inter-barangay connections to major municipal and city infrastructure without traversing provincial road.
National roads refer to any public road classified as primary and secondary, declared as national road by the President of the Philippines.”
x x x

This condition is deemed written in tricycle franchises but a corresponding ordinance could further give teeth thereto and effectively prohibit tricycles from plying along national highways. To reiterate, the LGU has the power to regulate not only the operation of tricycles but, more importantly, the traffic and the use of the streets within its territorial jurisdiction. It is opined therefore that a comprehensive traffic ordinance could regulate and properly set the flow of traffic in order to address the problem on traffic congestion. Consequently, however, this could render some existing transport terminals situated along the national highways physically obsolete, thus, for them to die a natural death, so to speak.

The undersigned believes, however, that earnest effort should first be exerted to reconcile the interests of the city and its constituents, on one hand, and the interests of the transport sector, on the other. This underscores the importance of proper consultation and negotiation with the stakeholders. This notwithstanding, the general welfare and convenience of the public, being the paramount consideration, should still prevail.

Meanwhile, actual visits and interviews conducted by the CLO staff in the three (3) neighboring LGU’s, particularly the Municipality of Surallah, City of Tacurong and City of General Santos, has brought about the following findings, to wit:

1. The operation of the Integrated Transport Terminal of Surallah is governed by the Local Revenue Code (a copy of which is attached hereto as ANNEX “B” for easy reference).
2. The operation of Tacurong City Integrated Public Terminal, on the other hand, is governed by a separate ordinance, Ordinance No. 51, Series of 2004, otherwise known as the “Tacurong City Integrated Public Terminal Ordinance” (a copy of which is attached hereto as ANNEX “C” for easy reference). It can be noted that the ordinance already embodies traffic rules prescribing the flow of traffic. The LGU of Tacurong has likewise come up with a Management Manual which provides in detail the operation of the terminal (a copy of which is attached hereto as ANNEX “D” for easy reference).
3. General Santos City, on its part, has passed Ordinance No. 08, Series of 2005, otherwise known as “An Ordinance Providing for the Policies, Rules and Regulations in the Operation and Maintenance of Eusebio Bulaong Public Terminal Located at Bulaong Subdivision, Barangay Dadiangas North, General Santos City, And For Other Purposes” (a copy of which is attached hereto as ANNEX “E” for easy reference). It was related to the CLO staff that LGU-GSC had once passed an ordinance prohibiting tricycles from using the national highway, but a copy thereof has still to be produced.

Relative to the case between the LGU of General Santos City and YBL, this office continues to communicate and to follow up with the LGU of General Santos City for a copy of the decision in a case filed by YBL against the LGU regarding their public transport terminal.

I hope this opinion could be of help to the LGU’s endeavors.



Yours truly,




ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer
cc:
CPDO