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SECOND DIVISION


GREENHILLS EAST ASSOCIATION,         G.R. No. 169741

INC., represented by its President

JOSEFINA J. CASTILLO,

Petitioner,             Present:

Carpio, J., Chairperson,

- versus -                                             Brion,

Del Castillo,

Abad, and

Perez, JJ.

E. GANZON, INC., represented by its

President EULALIO GANZON, Promulgated:

Respondent.

January 20, 2010

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DECISION

ABAD, J.:

This case is about a residential subdivision’s resistance to the construction of a high-rise building beside it and a failure to promptly file a memorandum appeal with the Office of the President (OP), resulting in the dismissal of the case for failure to perfect the appeal.

The Facts and the Case

Petitioner Greenhills East Association, Inc. (GEA) is the homeowners association of Greenhills East Subdivision, a residential subdivision in Barangay Wack-Wack, Greenhills East, Mandaluyong City.

For a time now, respondent E. Ganzon, Inc. (EGI) has sought to develop a 4,109-square meter lot (the land site) at the corner of EDSA and Ortigas Avenue in Barangay Wack-Wack (the Barangay) with its owner, the San Buena Realty and Development Corp.  EGI wanted to build on the property a 77-storey mixed-used building with an 8-storey basement for a total of 85 storeys (the project).  The proposed SKYCITY Condominium, when built, will be the tallest building in the country.

Petitioner GEA’s subdivision has been classified under Section 4, Article IV of the Metropolitan Manila Commission Ordinance 81-01 (MMZO 81-01) as an “R-1 low density residential zone.”  The subdivision consists of about 380 lots.  It has a church (the Sanctuario de San Jose), a school (the La Salle Greenhills), and a private road network.

As it happened, the land site on which the project will rise is adjacent to Greenhills East Subdivision although MMZO 81-01 had classified that site as “C-2” or a Major Commercial Zone.  It is bounded by EDSA on the east, Florida Street on the north, Lot 11, Block 4 of the Subdivision and a narrow creek on the west, and Ortigas Avenue on the south.

Sometime in April or May 1997, respondent EGI fenced its land site, demolished the structures on it, and began excavation works without first getting a clearance from the Barangay.  On July 10, 1997 the Housing and Land Use Regulatory Board (HLURB) issued to EGI a Certificate of Locational Viability and on August 11, 1997 the City of Mandaluyong issued to it an Excavation and Ground Preparation Permit.  On September 15, 1997 the HLURB further issued to EGI a Preliminary Approval and Locational Clearance for its project.

In January 1998 petitioner GEA wrote the HLURB National Capital Region, Regional Director, opposing respondent EGI’s project.  Not content with its HLURB opposition, GEA filed a separate one addressed to the Department of Public Works and Highways (DPWH).  On June 4, 1998 the DPWH advised the Building Official of Mandaluyong to require EGI to secure a Development Permit and a valid Locational Clearance for its project from the HLURB.  In a separate development, EGI applied with the Barangay for clearance covering its project. On July 15, 1998, however, the Barangay denied the application.

On November 24, 1999 the HLURB Arbiter rendered a decision, dismissing petitioner GEA’s opposition to respondent EGI’s project.  On March 20, 2001 acting on GEA’s petition for review of the Arbiter’s decision, the HLURB Board of Commissioners issued a resolution, denying the petition.  It also denied GEA’s motion for reconsideration on October 30, 2001.

On November 20, 2001 petitioner GEA filed its Notice of Appeal with the OP, simultaneously paying the required appeal and legal fees.  On December 12, 2001 GEA received a copy of the OP’s order dated November 27, 2001, requiring GEA to file its memorandum on appeal within 15 days from notice.  But before the period was up or on December 27, 2001, GEA filed a motion for extension of 15 days within which to submit its memorandum on appeal.  On January 11, 2002 GEA filed another motion for extension, this time for five days or until January 16, 2002, within which to file the required memorandum.

Petitioner GEA filed the required Memorandum on Appeal with the OP on January 16, 2002 but asked that office for an extension of two days within which to file the required draft decision.  On January 18, 2002 GEA filed still another motion for extension, this time for one day, within which to file the required draft.  GEA claims that it intended to file the same on January 21, 2002 but, due to a nationwide brownout on that day, it had to ask for five more days within which to do so.  Finally, GEA filed its draft decision with the OP on January 28, 2002.

On February 10, 2003 petitioner GEA received a copy of an order from the OP dated January 28, 2003, denying its appeal on the ground of GEA’s failure to perfect it on time.  GEA moved for a reconsideration of the Order, but the OP denied the same.

On August 13, 2003 petitioner GEA filed with the Court of Appeals (CA) a petition for review of the OP’s orders.  On December 21, 2004, the CA rendered judgment, denying GEA’s petition.  GEA filed a motion for reconsideration but this, too, was denied, hence, the present recourse to this Court.

The Issues Presented

Petitioner GEA basically presents the following issues for resolution:

1.       Whether or not the CA correctly upheld the ruling of the OP that petitioner GEA failed to perfect on time its appeal to that office from the decision of the HLURB; and

2.      Whatever be the answer, if the substantial matter need to be addressed, whether or not the HLURB erred in finding no valid ground to restrict respondent EGI’s use of the subject land site, which lies beside a residential subdivision, for constructing a high-rise building.

The Rulings of the Court

One.  Petitioner GEA contends that it had already perfected its appeal when it filed on November 20, 2001 a notice of appeal with the OP from the decision of the HLURB.

The Rules and Regulations Governing Appeals to the Office of the President of the Philippines[1] requires the appellant to file, not only a notice of appeal, but also a memorandum on appeal that must, among other things, state the grounds relied on for the appeal, the issues involved, and the reliefs sought.[2] The appellant must, to perfect his appeal, comply with these requirements within 15 days from receipt of a copy of the HLURB decision.  Petitioner GEA, however, failed to submit an appeal memorandum.

Still, the OP actually gave petitioner GEA a chance to comply with the omitted requirement by directing it in the Order of November 27, 2001 to submit its appeal memorandum and draft decision within 15 days from notice; otherwise, it would dismiss the case.  Since GEA received the above order on December 12, 2001, it had until December 27, 2001 within which to comply with it.

Petitioner GEA points out that it filed two successive motions for extension of time within which to file the required memorandum appeal and draft decision.  Since GEA had already filed its memorandum appeal before the OP could deny those motions, it cannot be said that GEA filed the memorandum appeal out of time.

But petitioner GEA gambled when it did not file the memorandum appeal and draft decision within the extra 15 days that the OP gave it.  It asked first for an extension of 15 days and then an additional extension of five days.  GEA had no right to assume, however, that the OP would grant these extensions.  The governing rules did not provide for them.  Consequently, GEA has only itself to blame when its appeal was dismissed.[3]

Notably, the OP also required petitioner GEA to file, along with its memorandum appeal, a draft decision.  GEA did not.  It instead filed two more motions for extension of time within which to do so.  Section 5 of the Rules of that office provides that failure to comply with its orders may warrant a dismissal of the appeal.  Consequently, the OP acted within its authority in dismissing GEA’s appeal for this additional reason.

Two.  With the above ruling, this decision should end here.  But petitioner GEA asks the Court to dispense with the technicalities involved and rule instead on the merits of the case, given that GEA and its members had gone through a lot of trouble to get the HLURB to stop the project from rising on the contested land site.  To avert the likelihood that this case would shift to another forum under the guise of some other issue or issues, the Court deems it wise to resolve the substantial issue that petitioner GEA presents considering that both sides have amply argued the same.

Petitioner GEA invokes Section 10, Article V of MMZO 81-01.  This section provides height restrictions on a C-2 property that adjoins an R-1 property without an intervening street or permanent open space that is over six meters wide and that the properties have adjacent front yards, or even when there are none, the intervening street or permanent open space does not exceed three meters in width.

But MMZO 81-01 applies to a situation where an R-1 property adjoins a C-2 property.  This has ceased to be the case between the land site and the subdivision after the Mandaluyong City government enacted Ordinance 128 in 1993.  That was before the present case came up.  Ordinance 128 converted certain R-1 zones to C-2 zones and these included those on the western side of respondent EGI’s land site, namely Lot 11, Block 4, and Lot 11, Block 20.  Consequently, the subject land site ceased to be adjacent to an R-1 zone and no longer suffered from height restrictions.

Petitioner GEA of course claims that the lots that Ordinance 128 converted into C-2 zones were only the lots between Ortigas Avenue and Notre Dame Street that run parallel to EDSA but at some depth from it.  They are on the Wack-Wack side of Ortigas Avenue.  Ordinance 128 describes the newly converted C-2 zones relevant to this case as “a lot deep along Ortigas Avenue from EDSA to Notre Dame Street.”  Because of the mention of Notre Dame Street, which is found on only one side of Ortigas Avenue, GEA concludes that the new C-2 zones did not extend to the other side of Ortigas Avenue where Greenhills East Subdivision and respondent EGI’s land site are located.

But, as HLURB pointed out, if the purpose of the ordinance was to limit the land classification conversion only to the side of Ortigas Avenue where the Wack-Wack Subdivision lay, it would have simply stated, using the technical language applied to the other converted areas,[4] “a lot deep along the Wack-Wack side of Ortigas Avenue from EDSA to Notre Dame Street,” instead of saying, “a lot deep along Ortigas Avenue.”  It could only mean, therefore, that the ordinance intended to convert all the lots, on both sides and margins of Ortigas Avenue up to the point where Notre Dame Street was.

The Court finds either conclusion unclear, given the essentially vague way by which Ordinance 128 describes the affected areas.  What really clears up the issue for the Court is the HLURB’s recourse to the Revised Zoning Map of Mandaluyong City.  The color-coded map shows identical color and captions for the lots stretching at some depth from EDSA, but running parallel to it, on both sides of Ortigas Avenue, including Lot 11, Block 4, and Lot 11, Block 20 on the Greenhills East Subdivision side.  The map tags both sides of Ortigas Avenue with the same C-2 classification.

In relying on the Mandaluyong zoning map, the HLURB took note of the standard procedure observed in fixing the boundaries of lands, where the preparation and drafting of the illustrative maps precede the drafting of the text that describes those boundaries.  Although the text of the ordinance is controlling, any doubt or vagueness in the meaning of its provisions may be cleared up by a reference to the official map.  As a quasi-judicial body, which enjoys an expertise in land zoning classifications, the HLURB can take judicial notice of such official maps as are generated and used in government zoning activities.  The Court has no reason to disturb its findings in this case.

Petitioner GEA argues, however, that even on the assumption that Ordinance 128 converted the lots on the Greenhills East Subdivision side of Ortigas Avenue into a C-2 zone, such conversion affected only Lot 11, Block 20.  It did not convert Lot 11, Block 4, which was adjacent to the controversial land site, and which retained an R-1 classification.

But, as the HLURB Board of Commissioners noted, using the sketch map submitted to it, although the land site indeed adjoins Lot 11, Block 4, it does so not in the manner that would properly call for the application of the zoning ordinance.  Based on the HLURB’s observation, Lot 11 of Block 4 and the land site do not have common boundaries that join them.  Rather, they touch each other only at a certain point due to the irregular shape of the properties, following the direction of the meandering creek that lies between them.  For this reason, it cannot be said that Section 10, Article V of MMZO 81-01, which sets height restrictions, applies to the project.

No matter how hard it tries to learn the technical intricacies of certain highly regulated human activities, the Supreme Court will always be inadequately equipped to identify the facts that matter when resolving issues involving such activities.  Invariably, the Court must respect the factual findings of administrative agencies which have expertise on matters that fall within their jurisdiction.[5] Here, since the HLURB has the expertise in applying zonal classifications on specific properties and since petitioner GEA fails to make out a clear case that it has erred, the Court must rely on its finding that respondent EGI’s land site does not, for the purpose of applying height restrictions, adjoin an R-1 zone.[6]

Petitioner GEA nonetheless contends that the proposed 77-storey building would have mixed uses, part residential, part office, and part commercial, which would not be accord with the patterns of land uses suitable to C-2 zones.  The buildings in C-2 zones, it suggests, should rise no higher than 40 or 50 storeys from the ground.  GEA invokes Article IV, Section 4, paragraph 5 of MMZO 81-01, which states that establishments in a C-2 zone should be sufficient to provide the needs of the district level.  GEA infers from this that a C-2 establishment must be such that it will provide the needs of the district level only and that, beyond those needs, the establishment should be in High Intensity or C-3 Zone.

But such contention has no basis.  MMZO 81-01 contains no provision that allows the construction of not more than 40 or 50-storey buildings in a C-1 or C-2 zone and restricts higher buildings to a C-3 zone.  There are just no height restrictions under the law for buildings located in  C-2 zones, save probably for height clearances prescribed by the Air Transportation Office.

The Court cannot find fault in HLURB’s assertion that the real test of whether a land use serves the need of a district is not in the size or height of the buildings but in the sufficiency or surplus of the business or human activities in a given district to which they cater.  Land use is affected by the intensity of such activities.  Extraordinary population density or overcrowding, brought about by competition for space in the scarce area of the district, is to be avoided.  Using this test, the HLURB, which is the clearing house for efficient land use, found no clear showing that respondent EGI’s project if finished would cause havoc in the population level of the land district where the project lies.

What is more, the houses of petitioner GEA’s members are separated by fence and guarded gates from the adjacent areas outside their subdivision.  Their exclusiveness amply protects their yen for greater space than the rest of the people of the metropolis outside their enclave can hope for.  Respondent EGI’s project offers no threat to the subdivision’s privacy.  It is on the other side of the fence, wholly unconnected to the workings within the subdivision.  The new building would be in the stream of human traffic that passes EDSA and Ortigas Avenue.  Consequently, it would largely attract people whose primary activities connect to those wide avenues.  It would seem unreasonable for petitioner GEA to dictate on property owners outside their gates how they should use their lands if such use is not in contravention of law.

Finally, petitioner GEA contends that the lack of approval of the project by the homeowners’ association or the Barangay precludes it from proceeding.  GEA invokes Section 14, Article V of MMZO 81-01 which provides that, where a proposed land use will necessarily affect the character of the residential zone, the proponent needs to get such approval.  It is a prerequisite for the issuance of a locational clearance and a building permit.

But, although Section 152 (c) of the Local Government Code requires a barangay clearance for any activity within its jurisdiction, such clearance cannot be denied when the activity is in a permissible zone.  The denial would otherwise be illegal.  Here, as discussed above, the applicable ordinance of Mandaluyong City does not preclude the construction of the project on the land site in question over the unreasonable objection of a nearby association of subdivision dwellers.  Indeed, the city or municipality to which the barangay unit belongs may still issue the required license or building permit[7] despite the withholding of the barangay clearance as had happened in this case.

The Court will not dwell on the other matters raised concerning environmental requirements respecting light, ventilation, drainage, sewerage, waste disposal, and pollution relating to the project.  These matters very well fall under the competence of other government agencies.  Surely, the HLURB decision does not and cannot in any way confer a blanket passport for constructing a building that does not meet the requirements of other laws.

ACCORDINGLY, the Court DENIES the petition for lack of merit and affirms the decision of the Court of Appeals dated December 21, 2004 and its Resolution dated September 14, 2005.

SO ORDERED.

ROBERTO A. ABAD

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice


ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice                                     Associate Justice

JOSE P. PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice



[1] Administrative Order 18, series of 1987.

[2] Section 1, Administrative Order No. 18, in relation to Section 2, Rule XVIII of the 1996 HLURB Rules.

[3] Roxas v. Court of Appeals, 240 Phil. 254, 258 (1987).

[4] C-2 Medium Intensity Commercial Zone

“The lot deep both sides of Shaw Blvd. from Mandaluyong-Manila Boundary to a block deep from EDSA, except for areas classified as C-3 and institutions.

“The block deep on the western side of EDSA from Pasig River to Mandaluyong-San Juan boundary except for portions classified as C-3 (high intensity commercial) and special district (utility).

“The lot deep on the eastern side of Gen. Kalentong St. from the Mandaluyong-Manila boundary to Mandaluyong-San Juan boundary.

“The areas bounded by Gen. Kalentong St., the railroad track (PNR) and the Mandaluyong-San Juan boundary.

“A lot deep along Ortigas Avenue from EDSA to Notre Dame St.”

[5] Villaflor v. Court of Appeals, 345 Phil. 524, 559 (1997).

[6] Id.

[7] Section 152 (c), Local Government Code:

Barangay Clearance - No city or municipality may issue any license or permit for any business or activity unless a clearance is first obtained from the Barangay where such business or activity is located or conducted.  For such clearance, the Sangguniang Barangay may impose a reasonable fee.  The application for clearance shall be acted upon within seven (7) working days from the filing thereof.  In the event that the clearance is not issued within the said period, the city or municipality may issue the said license or permit.