Is a hotel in a "no build zone" a nuisance per se?

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Article 694 of the Civil Code defines “nuisance” as any act, omission, establishment, business, condition or property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) hinders or impairs the use of property.[1]In establishing a no build zone through local legislation, the LGU effectively made a determination that constructions therein, without first securing exemptions from the local council, qualify as nuisances for they pose a threat to public safety. No build zones are intended for the protection of the public because the stability of the ground’s foundation is adversely affected by the nearby body of water. The ever present threat of high rising storm surges also justifies the ban on permanent constructions near the shoreline. Indeed, in Aquino v. Municipality of Malay (G.R. No. 211356), the area’s exposure to potential geo-hazards could not be ignored and ample protection to the residents of Malay, Aklan should be afforded.

Challenging the validity of the the LGU’s actuations, Aquino (the petitioner) posits that the hotel cannot summarily be abated because it is not a nuisance per se, given the hundred million peso-worth of capital infused in the venture. Citing Asilo, Jr. v. People,[2] petitioner also argues that respondents should have first secured a court order before proceeding with the demolition.

Preliminarily, the Supreme Court agreed with petitioner’s posture that the property involved cannot be classified as a nuisance per se, but not for the reason he so offers. Property valuation, after all, is not the litmus test for such a determination. More controlling is the property’s nature and conditions, which should be evaluated to see if it qualifies as a nuisance as defined under the law.

As jurisprudence elucidates, nuisances are of two kinds: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance.[3]

In the case of Aquino v. Municipality of Malay (G.R. No. 211356), the hotel, in itself, cannot be considered as a nuisance per se since this type of nuisance is generally defined as an act, occupation, or structure, which is a nuisance at all times and under any circumstances, regardless of location or surrounding.[4] Here, it is merely the hotel’s particular incident––its location––and not its inherent qualities that rendered it a nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay West Cove could have secured the necessary permits without issue. As such, petitioner is correct that the hotel is not a nuisance per se, but to the Court, it is still a nuisance per accidens.
[1] Gancayo v. City Government of Quezon, G.R. No. 177807, October 11, 2011, 658 SCRA 853, 867.

[2] G.R. Nos. 159017-18, 159059, March 9, 2011, 645 SCRA 41.

[3] Salao v. Santos, 67 Phil. 550 (1939).

[4] 2 J.C.S. Sangco, Torts and Damages 893 (1994).