SolGen urges SC to order Torre de Manila demolition

Ina Reformina, ABS-CBN News

Posted at Aug 26 2015 11:17 AM | Updated as of Aug 26 2015 08:43 PM

MANILA - The Office of the Solicitor General (OSG), representing the National Commission on Culture and the Arts (NCCA) and the National Museum, urged the Supreme Court (SC) on Tuesday to order DMCI Homes to demolish its high-rise condominium project in Manila, the Torre de Manila.

READ: Key events in the Torre de Manila controversy

In his opening statement during Tuesday's continuation of oral arguments on the petition of the Order of the Knights of Rizal (OKOR) against the controversial project, now dubbed as a "photobomber" of the Rizal Monument in Rizal Park, Luneta, Solicitor General Florin Hilbay raised the following arguments:

1. The Constitution enacts conservationist and protectionist policies with respect to the Rizal Monument, a cultural treasure of the nation.

2. The statutory mandate to protect the physical integrity of cultural artifacts covers the protection of the sightline of the Rizal Monument.

3. The zoning and building permits of DMCI were issued ultra vires (beyond one's legal power or authority), in patent violation of Ordinance No. 8119, 60, 61, 62, 63, 65, and 69.

"When the Constitution declares that the 'State shall conserve…the nation's historical and cultural heritage,' we believe that it means what it says, that is, to 'conserve' the Rizal Monument, we have to go back to this,'' Hilbay said.

"We take it as a given that the cultural artifact that is the Rizal Monument in Luneta is part of the 'cultural treasure of the nation' regardless of any formal declaration. There can be no doubt that of all the monuments of our national hero-and perhaps even of all monuments in the country-the Rizal Monument in Luneta is primus inter pares. It is sui generis."

Hilbay said the country's desire to protect the monument is "so overwhelming it is guarded seven days a week by the Philippine Marines."

"It is the site where our national hero's remains are buried. It has been formally declared by the [National Historical Commission of the Philippines] as a National Monument, by the former National Historical Institute as part of a National Historical Site, and by the National Museum as a National Cultural Treasure.

"These facts undeniably make the Rizal Monument in Luneta a prime object of the Constitution's conservationist and protectionist policies under Article XIV," Hilbay said.

READ: Why OSG dropped NHCP in Torre de Manila case (http://www.abs-cbnnews.com/focus/08/25/15/why-osg-dropped-nhcp-torre-de-manila-case)

While "there is no universal standard for protecting the physics or, in the language of R.A. 10066, 'the physical integrity' of a cultural artifact," Hilbay said the language of the law must accommodate this concept.

"The Rizal Monument, as an artwork, was intended to be, and has always been, seen with a clear sightline," he stressed.

As to the permits obtained by DMCI to construct the 49-storey building in a university cluster area that prohibits tall buildings, Hilbay raised the following arguments:

1. The City Planning and Development Office (CPDO) had no authority to issue the zoning permit it issued. This is clear from §63 of Ordinance 8119, which grants the CPDO authority to issue zoning permits only for "all conforming uses."

By the standards of Ordinance 8119, DMCI's zoning permit is invalid because it goes way beyond the floor-to-area ratio. Whereas the Ordinance allows only a floor-to-area ratio of 4, the zoning permit allowed 13. Whereas Torre de Manila should have been entitled to a maximum of 7 floors, its application was for 49 floors. This is 42 floors beyond the authority of the CPDO.

2. Ordinance 8119 is also clear about which institution has the authority to issue the permission for variance or exception from the ordinary zoning rules. It is the Sangguniang Panlungsod or City Council as per recommendation of the Manila Zoning Board of Adjustments Appeals or MZBAA, through the Committee on Housing, Urban Development and Resettlements, under §60 of the Ordinance. Following §63 of Ordinance 8119, this should have been done "prior to conducting any business activity or construction on the[ir] property/land."

3. The issuance of a zoning permit is no guarantee of its validity. Why? Because the Ordinance itself says so. Under §65 of the Ordinance, "[t]he issuance of a Zoning Permit (Locational Clearance) shall not be construed as an approval or authorization to the permittee to disregard or violate any of the provisions of this Ordinance."

4. These defects also taint the validity of the Building Permit and the Business Permit. According to §69 of the Ordinance, "[n]o building and business permit shall be issued by the Local Building Officer and Business Promotion and Development Officer, respectively, without a valid zoning permit (locational clearance) in accordance with this Ordinance."

"Given these facts and conclusions of law, what is apparent is that DMCI was less-than-prudent both in securing the required permits and in building Torre de Manila. A diligent developer would have gone through the required processes under the Ordinance; it would not have built the Torre de Manila with undue haste;

"Consequently, the government is asking the Honorable Court to order private respondent DMCI to demolish Torre de Manila, an illegal construction, to the extent that it impairs the sightline of the Rizal Monument. It also asks the Honorable Court to order the City of Manila and/or the concerned national agencies, by way of continuing mandamus, to oversee the demolition of Torre de Manila and provide the necessary reports to this Honorable Court until such time that its judgment is fully enforced," Hilbay said.

READ: Hundreds lose income as construction halts