Carpio On Manila ZO, Variance 'Rule' Vs Exception, 2015

7/6/2016
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Carpio on Manila zoning laws: Applying for variance 'rule' instead

of exception?
During the oral arguments on the controversial Torre de Manila, SC justice Antonio Carpio
says applying for a variance to get around the limits of Manila's zoning laws appears to be
the rule rather than the exception
Katerina Francisco
@kaifrancisco
Published 7:33 AM, August 26, 2015
Updated 7:33 AM, August 26, 2015
http://www.rappler.com/nation/103746torredemanilasupremecourtargumentsmanilazoninglaw
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7/6/2016
49-STORY STRUCTURE. The high-rise building is the subject of a petition before the High Court, with critics
saying it violated both heritage and local zoning laws. Photo by Mark Saludes/Rappler Mark Z.
Saludes/Rappler.com
MANILA, Philippines Local zoning laws that limit the height of buildings in the city of
Manila are more of the exception rather than the rule, a Supreme Court (SC) justice said on
Tuesday, August 25, during the 5th round of oral arguments on the controversial Torre de
Manila condominium project.
In his interpellation of Manila city legal ofcer Jose Alberto Flaminiano, SC justice Antonio
Carpio said that most commercial residential buildings in the city have applied for a
variance or exemption from Manila's zoning laws, and did not comply with the prescribed
maximum oor-area ratio (FAR) of 4.
"If you look at the commercial residential buildings in Manila in the last 10 years, they are
all variances. They did not follow the original FAR 4," Carpio said.
"So the rule really is variance, and the exemption which is never followed is FAR 4," he
added, to which Flaminiano responded: "It appears that way."
The High Court is hearing a petition led against the 49-story Torre de Manila, which
heritage advocates have slammed for ruining the sightline of the historic Rizal Monument
as it can be clearly seen rising behind the statue of the national hero.
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The petitioner, Knights of Rizal, also said the Torre de Manila violated local zoning laws. In
the university cluster where the condominium stands, Ordinance No. 8119 prescribes a
maximum FAR of 4. Torre de Manila's building plans show that it will have a oor-area ratio
of 7.79. (READ: SC justice questions Torre de Manila zoning permit)
Executive function
To get around this limit, a real estate developer must apply for a variance which has to be
approved by the city council upon the recommendation of the Manila Zoning Board of
Adjustments and Appeals.
But the SC justice questioned the power of the city council to perform an executive
function.
"What's happening now is that the executive function is exercised by the city council. Why
does the city council exercise this function? What's in it for them?" Carpio asked.
"Is the ordinance invalid because the executive function is exercised by the legislative
body? What is the role of the city mayor now? There is something terribly wrong," he added.
Carpio also noted that it seemed to be the "business model" in Manila to compel real estate
developers to apply for a variance because it would not make good business sense to
comply with the zoning limits and risk losing money.
"Isn't that sad? Every businessman has to go to the city council and practically ask for a
zoning ordinance for this particular lot Why does the city council want every developer to
ask for a variance?" Carpio asked.
Flaminiano did not categorically answer Carpio's questions, but agreed with the points
raised by the magistrate.
In last week's oral arguments, Flaminiano said that the city ofcials who issued the permits
for Torre de Manila "acted beyond the scope of their authority." The permits were issued
under the term of former Manila mayor Alfredo Lim. Rappler.com

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PHILIPPINES
TIMELINE: The Torre de Manila case

After 6 hearings, the Supreme Court has wrapped up oral arguments on Torre de Manila.
Rappler looks back at the progression of the controversy from online petition to the high
court.
Katerina Francisco
@kaifrancisco
Published 12:01 PM, September 06, 2015
Updated 11:09 AM, September 28, 2015
Manila Mayor Joseph Estrada led the wreath laying ceremony at the Rizal Park in Manila Friday in celebration
of Dr. Jose Rizal's 154th birth anniversary. Photo by Joel Leporada/Rappler
MANILA, Philippines After 6 hearings, the Supreme Court has wrapped up oral arguments
on the controversial Torre de Manila condominium in Manila.
The 49-story residential project, dubbed the national photobomber by critics, is the
subject of a petition led last September 2014 by the Knights of Rizal.
The group wants to have the building demolished because it mars the sightline of the
historic Rizal Monument and because it allegedly violated zoning laws in the city of Manila.
Torre de Manilas developer, DMCI Homes, has denied this, saying that the building sits on
private property away from the protected heritage area and was given clearances by city
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ofcials.
The issue over Torre de Manila has spanned 3 years, beginning in 2012 when heritage
advocate Carlos Celdran began raising concerns over the building.
Rappler looks at the progression of the complaint against Torre de Manila from its
beginnings in an online petition, to being the topic of discussion in the highest tribunal of
the land.
Updated as of September 28, 2015
2012
DMCI Homes begins construction of Torre de Manila, during the time of former Manila
Mayor Alfredo Lim.
The residential project began receiving ak from heritage groups and prominent
personalities, like tour guide Carlos Celdran. A Change.org petition also called for the
demolition of the "offensive" condominium, which it dubbed "Terror de Manila."
June 2012
In June, Manila city's planning and development ofcer, Resty Rebong, approved the zoning
permit for Torre de Manila, allowing variance (exemption) for 49-story construction.
But in hearings at the Supreme Court 3 years later, Manila city legal ofcer Jose Alberto
Flaminiano admitted that at the time the permits were granted, DMCI had not yet applied
for a variance. The approval of the Manila Zoning Board of Adjustments and Appeals
(MZBAA) came in 2014.
Also in June, the National Historical Commission of the Philippines (NHCP) said Torre de
Manila violated the agencys guidelines on monuments honoring national heroes.
But 6 months later, the NHCP reversed its stance.
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PHOTOBOMBING CONDO. President Benigno S. Aquino III leads the ag raising ceremonies for the
commemoration of the 188th Anniversary of the Martyrdom of Jose Rizal at the Rizal National Monument in
Rizal Park on December 30, 2014. At the back stands an unnished condominium which as gained opposition
among heritage advocates. Photo by Malacaang
July 2012
In July, former Manila city building ofcial Melvin Balagot granted DMCI a building permit.
City councilor DJ Bagatsing drafted a resolution to suspend this building permit; the
resolution was approved by the council.
November 2012
The NHCP backtracks on its stance: in a letter dated November 6, 2012, NHCP chair Maria
Serena Diokno told DMCI that as Torre de Manila sits outside the boundaries of the Rizal
Park and well to the rear of the Rizal National Monumentit cannot possibly obstruct the
front view of the said National Monument.
But Diokno also recommended that an ordinance be enacted designating a buffer zone
around Rizal Park to prevent a repeat of a similar dilemma.
2013
In March, the Manila city council approved Ordinance 8310, which prohibits any
construction or development that would ruin the sightline of all historical and cultural sites
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within the city.

The ordinance was led as early as July 2012 by Manila councilor DJ Bagatsing. It would
have made it illegal for DMCI to construct Torre de Manila to a height that would impair the
sightline of the Rizal Monument.
But a month later, then-Manila mayor Lim vetoed the ordinance "for being ultra vires," a
term which means that the act was beyond the legal power of the city council.
This was done while the council was on recess, and local ofcials were in the thick of the
electoral campaign season.
In November, under the term of current Manila Mayor Joseph Estrada, the city council
suspended the building permit for Torre de Manila to allow for a roundtable discussion
between DMCI and groups opposing the project.
FIGHTING FOR RIZAL. Members of the Knights of Rizal le a petition with the Supreme Court to stop the
construction of Torre de Manila which threatens the sightline of the Rizal Monument. Photo by Joel
Leporada/Rappler
2014
On January 24, the Manila zoning board approved the construction of Torre de Manila, after
DMCI appealed for an exemption from zoning laws.
The real estate developer had appealed to Mayor Estrada, citing the permits it obtained
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from city ofcials under the previous administration.

In August, the Senate conducted an inquiry into the issue. Senator Pia Cayetano questioned
DMCI on its assumptions of good faith in constructing the high-rise despite knowing the
zoning limitations in the area. DMCI explained that it considered the permits obtained from
the city government good enough to proceed with construction.
On September 12, the Knights of Rizal a group created in honor of the national hero
led a petition before the Supreme Court, seeking the demolition of the condominium.
The group said the high-rise building threatens to ruin the "visual dominance" of the
monument of the national hero.
The petitioner also said the building qualies as a "nuisance", and claimed that DMCI built
the building in bad faith.
Named respondents in the petition were DMCI, the city of Manila, and government
respondents National Museum, National Historical Commission of the Philippines (NHCP)
and the National Commission for Culture and the Arts (NCCA).
The Ofce of the Solicitor General (OSG) represents the government respondents.
2015
January
In January, the NCCA issued a cease and desist order (CDO) against Torre de Manila
because it destroys or signicantly alters the view of the Rizal Monument.
The NCCA cited the National Cultural Heritage Act of 2009, saying that the Rizal National
Monument, Rizal Fountain, Rizal Park, and the Execution Site are cultural property
characterized as built heritage.
DMCI, however, said only the Supreme Court can stop construction.
June
In June, the SC issued a temporary restraining order stopping the construction of Torre de
Manila. It also set dates for oral arguments on the petition led by the Knights of Rizal.
Also in June, Estrada openly blamed Lim for signing the permits for the controversial highrise. Lim earlier accused Estrada of extorting money from DMCI for building permits.
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DMCIs exemption from zoning laws, however, was approved in 2014, under Estrada's term.
The Supreme Court (SC) hears the oral argument against Torre de Manila led by the Knights of Rizal on July
21, 2015. Photo by Mark Saludes/Rappler
July
On July 21, the High Court began hearing oral arguments on the Torre de Manila petition.
Among the issues raised and discussed: does the SC have jurisdiction over the case?
Should constitutional provisions on heritage conversation be interpreted in a different way?
Did Manila city ofcials follow the rule of law when it allowed DMCI to construct the
building? Does NHCP have the legal obligation to stop the construction of Torre de Manila?
In July, the Solicitor General changed his stand on the case, reversing his earlier position
that there was no legal basis for the NHCP to stop the construction of the building because
Torre sits on private property way beyond the protected buffer zone of the Rizal
Monument and the Rizal Park.
Under the law, the NHCP can issue a CDO when the physical integrity of a cultural artifact
is threatened.
Solicitor General Florin Hilbays new position was that Torre de Manila is illegal and should
be removed because it violates constitutional provisions on the preservation of cultural
artifacts.
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He argued that in the case of the Rizal Monument, its physical integrity necessarily
includes its sightline.
The NHCP slammed Hilbay for reversing his position.
In August, the Solicitor General drops the NHCP as its client owing to differences in opinion
on the case.
On September 1, the Court held the 6th and last hearing on the Torre de Manila petition.
In a 46-page memorandum dated September 21, the Solicitor General asked the SC to order
DMCI to demolish Torre de Manila at its own expense.
The Solicitor General also said the NHCP "acted outside of its jurisdiction" by going against
its mandate when it said that there was no legal justication to stop the construction of the
building. Rappler.com
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Carpio On Manila ZO, Variance 'Rule' Vs Exception, 2015

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Carpio on Manila zoning laws: Applying for variance 'rule' instead

under the term of former Manila mayor Alfredo Lim. Rappler.com

TIMELINE: The Torre de Manila case

Updated as of September 28, 2015

But 6 months later, the NHCP reversed its stance.

within the city.

from city ofcials under the previous administration.

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elpoep rehto edam seirots esehT

THIS STORY MAKES PEOPLE ANGRY

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