Seares: Issue of access to Beverly Hills roads raised anew at City Council. Kons Alcover says regulation by homeowners, allowed in SC ruling, amounts to prohibition. RTC ordered in 2015 to keep Beverly roads open.

Seares: Issue of access to Beverly Hills roads raised anew at City Council. Kons Alcover says regulation by homeowners, allowed in SC ruling, amounts to prohibition. RTC ordered in 2015 to keep Beverly roads open.

ON MAY 12, 2014, residents of Barangay Kalunasan complained to Mayor Mike Rama — also the mayor at the time, on his second term — that Beverly Hills homeowners had barred them from passing the roads of the subdivision, as access to and from the rest of Barangay Lahug.

Apparently, the problem to this day still has to be solved or has recurred. Councilor Pastor Alcover Jr. last Wednesday (March 15, 2023) raised it in a privileged speech at the City Council, which granted his motion to look into the dispute in a Sanggunian executive session next April 19. Representatives of homeowners at Beverly, Grand Legacy Veterans Village, and officials of the city’s planning office, Bureau of Lands, and Human Settlements, among others, will be invited.

Alcover said there’s still an ongoing litigation over the issue of right-of-way at the Cebu Regional Trial Court with the Beverly Homeowners Association as respondent. He recalled that he made a privileged speech on July 25, 2017 on the complaint of a resident regarding the same dispute. In Wednesday’s session, he rose again “on personal and collective privilege” because, he said, he himself was barred last week by a guard when he tried to enter Beverly Hills to reach Veterans Village where he resides.

(On the court case, there has been no publicity about its status. On November 11, 2015, though, it was reported the RTC-23 Judge Generosa Labra issued a writ of preliminary injunction, which ordered Beverly Hills Association represented by president Maria Franco from restricting residents of Veterans Village and upper Kalunasan in their access to public roads at Beverly. The order was “to keep the roads open and accessible to the public at all times while the case is being heard.” The petitioners led by Cecilia Yee were required to post a bond of P1 million.)

THEY’RE PUBLIC ROADS. The roads at Beverly are already public roads, having been donated, Alcover said, on March 17, 1976 with Eulogio Borres as the mayor. That fact was confirmed earlier, in May 2014, when the City “intervened” in the quarrel between Beverly and Kalunasan.

Alcover in this week’s Sanggunian speech said the City owns the roads and pays for their maintenance and clean-up, including garbage collection, and seeks an end to “oppression and discrimination. In 2014, Kalunasan residents, then estimated at 1,000 people, said “they were hoping that the City as owner of the roads will address their concerns.”

SC RULING ON ROAD OWNERSHIP, REGULATION. Can Beverly homeowners regulate passage into a subdivision even if they have donated the roads to the local government? Yes, based on the June 2019 ruling of the Supreme Court in Kwong vs. Diamond Homeowners, which said the association has “the right to set goals for the promotion of safety and security, peace, comfort and general welfare of its residents.”

The SC in the Kwong case held that subdivision homeowners are “not entirely powerless in protecting their interests.” It ruled that ”while the ownership of the public spaces is with the local government, enjoyment, possession and control are with the residents and homeowners.”

Law and jurisprudence tend to favor Beverly on the matter of regulating access to the roads, which Alcover himself recognized in his attack on Beverly’s policy of barred access. He said it’s up to Sanggunian lawyers to study the legal aspect.

LAW ON DONATING ROADS TO LGU. The transfer of subdivision roads to the local government has not been entirely up to the subdivision to its residents -- and the LGU concerned. Not a matter of choice since it has been required by law.

Presidential Decree #957 (as amended by PD #1216) requires that upon their completion, “the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local governments to accept.”

The LGU cannot say it’s doing the subdivisions a big favor by paying for the roads’ upkeep. The LGU got the roads for free and donated them with the barrel of the law pressed to their head. The same legal coercion is applied to the LGU, which cannot refuse the donation.

SUBDIVISION’S RIGHT TO REGULATE. The two presidential decrees are silent on the right of subdivision owners to regulate the roads donated. But a 2010 law, Republic Act #9904, expressly created the right. The association has “the right to regulate access to, or passage through, the subdivision village roads for purposes of preserving privacy, tranquility, internal security, safety and traffic order.”

There are conditions though, namely:

[1] Public consultations are held;

[2] Existing laws and regulations are met;

[3] Authority of concerned government agencies or units is obtained;

[4] Memoranda of agreement are executed by among the concerned parties.

Lawyers have noted that RA 9904 does not distinguish whether the roads have been donated or not. Despite the mandatory provision of that law, however, SC retired chief justice Artemio Panganiban wrote, in a newspaper column three years ago, that in Republic vs. Llamas (January 5, 2017), the high court ruled that a “positive act like a deed of donation must first be made by the owner/developer before the government can acquire dominion over the roads.”

Whatever the actual ownership of the roads, what looks certain is that subdivision owners have the right to regulate but those seeking right-of-way have also the right to demand a right of way by enforcing the law’s conditions.

ALCOVER’S ATTACK is less on the right of Beverly homeowners to regulate than on the nature of the regulation. He charged the Beverly rules with being “oppressive and discriminatory” and called them “prohibition in the guise of regulation.”

A more effective assault could be on the conditions of regulation laid down by RA 9904. IIt is not known if Beverly had held consultations, obtained authority from government agencies, and executed the required MOAs. Failure to meet any of the conditions would be a compelling reason to stop or suspend the “No sticker, no entry” policy and go through the required procedure.

NATURE OF PERSONAL COMPLAINT. Councilor Alcover said he showed his ID to the Beverly guard after identifying himself as a city councilor, “an official” of the City Government. The guard would accept only the association sticker, which presumably is issued only after verification and other steps.

Alcover suspected that a fee was being collected for the sticker and they’re making it a business (“mora’g negosyo na”). He didn’t give figures though to show that the standard toll is much higher than the actual expenses of sticker making, administrative cost and possibly the security guards’ pay.

OTHER SUBDIVISIONS AFFECTED. Many people, particularly those living in gated subdivisions, are watching the Beverly Hills case because many of them could be facing the same problem. Among them are residents of Casals Village, whose case reached the Sanggunian last March.

A solution by the City Government to the Beverly problem may also work in the other controversies involving right of way in subdivisions.

There’s enough of the law and jurisprudence on the issue. What seems lacking is mediators’ skill in balancing between the right of commuters to pass through a subdivision and the right of subdivision residents to be safe and secure in their homes.


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