[] The public works chief, under the National Building Code law, is 'the building official,' the original chief enforcer before local OBOs were created. Appeals from adverse rulings of local OBOs on NBCP matters, two sources say, may be made to DPWH secretary.
[] CPA contends, and Cebu Capitol agrees, that as an independent port created by special law, it is outside the jurisdiction of Cebu City Government, specifically on matters related to the National Building Code. But NBCP law expressly and categorically requires building permits for all government agencies, instrumentalities. The CPA law grants broad powers to the Port Authority but doesn't expressly make an exception in its favor regarding building permits.
[] LGUs and even the PPA may need to understand fully the extent and limits of their respective authority: when they're autonomous and can operate like kingdoms and when they're required by law or courtesy to submit to some other agency's authority or cooperate.
[1] WHAT LIT FUSE IN RECENT ERUPTION in the ongoing dispute between the Cebu City Government (CCG) and Cebu Port Authority (CPA) is the issue of whether the local government can compel CPA to secure building permits for its multiple structures in the port area, brought to a head by a "raid" on the Aduana.
Despite several warnings from City Hall's Office of the Building Official (OBO), the constructions allegedly continued. Last March 15, 2024, City Legal Office chief Vincent Gimena and OBO chief Florante Catalan charged Glen Castillo, former CPA general manager, and Francisco Comendador, current CPA GM with:
-- criminal complaints for 18 counts of violations of the National Building Code; and
-- violation of the Anti-Graft and Corrupt Practices Act (Section 3-e), and administrative complaints for "grave misconduct gross neglect of duty, and conduct prejudicial to the best interest of the service."
Last April 1, 2024, city officials allegedly (a) "forcibly entered" the port to confront CPA on the violations "despite the fact that the area is outside the territorial jurisdiction of Cebu City" and (b) "defied" the writ of injunction issued by the court in CPA's favor.
[2] MAJOR ISSUE IS PERMITS. Cebu Governor Gwen Garcia who has taken CPA's side in the public debate -- "because CPA's service also affects the province and the rest of the country" -- told me Wednesday, April 10, is "whether or NOT, the Cebu City building official can insist on a building permit from CPA."
All the "cease-and-desist" orders from OBO were aimed just for CPA to secure building permits because that's required by the National Building Code and because, according to Atty.-Engr. Jose Maria Poblete -- a former OBO chief and now a Cebu City assistant city administrator -- the law says so and OBO is accountable if the building later collapses.
It is part of the system and process, Poblete said Thursday, April 11. The National Building Code order to secure a building permit from the building official is express and categorical. Section 301 covers:
-- any construction activity ("erect, construct, alter, repair, move, convert or demolish any building or structure") and
-- every person, firm, corporation, agency ("including any agency or instrumentality of the government."
All CPA had to do was to apply for the permits and didn't have to pay any local fees. "Public buildings shall be exempt from payment of building permit, inspection and other fees." And "regulations on building permit, inspection and other fees, and for compliance with the same shall be regulated by city and municipal ordinances."
The exemption apparently applies to the fees, not the requirement of a building permit.
[3] HOW ABOUT CPA BEING A SPECIAL BODY, WITH ITS OWN TERRITORY? Does that exempt CPA from the building permit requirement? Does being special and autonomous/independent do away with the National Building Code requirement?
NBCP or the National Building Code of the Philippines (Republic Act#6541) is express and categorical in listing entities covered by the law. And yet the Cebu Port Authority law (RA #7621) also gives CPA broad powers to fulfill its mandate as "an independent authority."
Can one law be reconciled with the other?
Provisions of the CPA law cited by the Port Authority and Capitol in arguing for their common stand don't specifically mention any building permit exemption. In contrast, the NBCP law expressly and categorically provides non-exemption of government agencies and instrumentalities from securing building permits.
Instead, the National Building Code provides under its section on building permits (Section 1.02.03 [e]) that "all public buildings shall conform to the provisions of this Code and the Building Official of the city or province where the public building is located shall issue the building permit therefor, stating in writing that such public building conforms to the requirements of the Code. For national public buildings, the Secretary of Public Works and Communications shall issue a certification that such building conforms to the Code. Public buildings shall be exempt from payment of building permit, inspection and other fees."
[4] CITY OBO IS UNDER SUPERVISION OF DPWH CHIEF. Governor Garcia is right about who "the building official" is: the DPWH secretary. Under the law creating the National Building Code, "for the purpose of enforcing the Code, the building official shall be under the supervision of the public works (and communications) secretary..."
Before Cebu City created its OBO, its building official was the city public works head or the city engineer, duly designated by the DPWH secretary.
The City Council approved on April 11, 2012 -- and Mayor Michael Rama signed on April 26 in the same year -- Ordinance #2323 creating the Office of the Building Official. From then on, the OBO has been a City Hall department under the city mayor.
The building official, under the said ordinance, is required to attend a seminar-workshop on NBCIP Law or PD #6541 and its implementing rules and regulations issued by DPWH. He is "primarily responsible for enforcement of the National Building Code and IRR, the city ordinances and circulars, memoranda, opinions and decisions/orders pursuant thereto."
Note the primacy of the NBCP and DPWH rules and regulations. The city's OBO has the duty, "upon complaint or motu propio and after due notice and hearing, to initiate ... (b) issuance of stoppage order or an order of discontinuance, or use of the occupancy of the building/structure or portion thereof." The building official shall also "undertake such other duties and tasks as may be assigned by the Mayor or the Sanggunian from time to time." The mayor appoints the building official with the concurrence of the City Council. The city's OBO shall be led by a registered architect or civil engineer who is recommended by an accredited professional organization.
[5] CPA MAY SKIP CITY'S OBO BUT BUILDING SCRUTINY CAN'T BE AVOIDED. Nigel Paul Villarete -- former Cebu City administrator and one of two urban planners consulted by the City Council on planning its move regarding the controversial Cebu Bus Rapid Transit (CBRT) project -- indicated how CPC could've avoided running into a collision with OBO and the mayor over building permits.
Villarete told me Wednesday, April 10, that MCIAA or Mactan-Cebu International Airport Authority doesn't have to submit building permit application to Lapu-Lapu City's OBO for its building activities because then DPWH secretary Hermogenes Ebdane Jr. (2/15/2005 - 2/1/2007; 7/4/2007-10/22/2009) designated a building official for the Airport Authority. Villarete said the same action was done for the AFP military bases on March 13, 2019 by then DPWH secretary Mark Villar (8/1/16-10/6/21).
NBCP law's Section 205, on building officials, which Villarete cited, authorizes the secretary to make appointments of temporary building officials, including the tapping of district, city or town engineers from DPWH or the LGU concerned. But the appointment has a qualifier: the DPWH secretary's designation "shall continue until regular positions of Building Official are provided or unless sooner terminated for causes..." Then DPWH minister Jesus Hilpolito, in a May 30, 18, 1985 memorandum, ordered that in local governments that still didn't have an OBO, the chief district engineer or city engineer shall automatically carry the designation building official.
Cebu City stopped having a DPWH-secretary-designated building official in April 2012 when it created its own OBO.
What this instructs the protagonists is that CPA may shun Cebu City's OBO but it must undergo the building permit process in which its construction or repair plans are reviewed and approved. Have the DPWH chief create your own OBO or submit building plans straight to the public works secretary. But the catchphrase is public safety, stupid.
[6] APPEAL TO DPWH SECRETARY. The DPWH chief might no longer appoint an OBO for CPA, even if asked, as Cebu City already has a functioning building official. But if he would, would the City Government, particularly Mayor Mike, use the NBCP law to complain?
Atty.-Engr. Poblete told me he thinks CPA can appeal to the DPWH secretary, as "the building official," against an adverse ruling of the local OBO. But then there's no negative ruling yet regarding any structure being built or improved by CPA, simply because the port authority has yet to file a single application for a building permit. Cebu City's OBO action so far has been to prod CPA to secure building permit/s.
Villarete said he knew that in cases of conflict of interpretation of the National Building Code in a city or municipality, the issue is raised first to the DPWH regional director and if unresolved, to the DPWH secretary.
[7] COLLATERAL ISSUES LIKE MAYOR MIKE'S AUTHORITY, 'FORCIBLE ENTRY.' Mayor Rama was quoted by news reports Wednesday, April 10, that despite
Governor Garcia's intervention, he "insisted he has authority over the agency and there is no other government agency that it is under."
The Aduana or port area, the mayor was quoted as saying, "cannot be under the territorial jurisdiction of another LGU." He said that was "not written in the book" of his grandfather, the late Vicente Rama, a congressman who authored the Cebu City charter.
Apparently, the autonomy legislated for the CPA is not well understood by local officials like Mayor Rama and maybe CPA itself. The CPA is not under another LGU but neither is it under the Cebu City Government through its mayor. And it operates separately from the Philippine Ports Authority or PPA.
In a sense, the land where CPA is located and operates is within the territory of Cebu City and therefore covered by Cebu City's applicable local laws and governance. In another sense, there are functions of CPA that it is empowered to do, without the interference of other government agencies, including the PPA. CPA began operations, taking over all ports in Cebu on January 1, 1996.
When Mayor Mike said the CPA is under him, he must refer only to matters that the law allows the local government to regulate or take part or get involved in.