WHAT JUST HAPPENED regarding the controversy between the Beverly Homeowners Association on one hand and the Cebu City Government and commuters using or wanting to use subdivision roads on the other: Mayor Michael Rama reportedly gave a “marching order” to start “recovering all public roads” that have been used “exclusively” by some subdivisions in the city.
What the local government will seek to “recover” is access or entry to the subdivision by vehicle owners who need to pass through Beverly Hills, or similar gated subdivisions, for them to get to their respective homes adjacent or nearby.
The Beverly Hills problem alone dates back to 2014 and 2017, when Councilor Pastor Alcover Jr. made separate privilege speeches in the City Council, scoring the alleged refusal of subdivision guards to allow them to pass through. The dispute even reached the Cebu Regional Trial Court, where it has been pending. In 2015, RTC-Branch 23 Judge Generosa Labra reportedly issued a writ or preliminary injunction against the homeowners association prohibiting the restriction of Veterans Village and Upper Kalunasan commuters. “Keep the roads open and accessible to the public at all times while the case is being heard,” the court reportedly read.
Yet last March 15, 2023, Councilor Alcover made another privilege speech complaining that he himself was denied entry by the subdivision checkpoint. In response to Mayor Rama’s vaunted order -- publicized by Alcover in SunStar’s July 31 Facebook interview “Behind the Headlines” -- Beverly Hills association announced August 3 that “it has maintained its position to maintain the security and privacy of its residents” since residents of neighboring subdivisions “have ample access to public roads in Kalunasan,” apparently referring to other road arteries, not Beverly’s.
NOT JUST A BEVERLY HILLS SITUATION. The clash on public access to a subdivision has not been happening in Beverly Hills alone. Similar scenarios, varying only in form and extent, are played out in other subdivisions, more so in gated communities and where right of way is not available.
Apparently, the City has not been able to pay much attention to the problem, more visibly in subdivisions where pressures from influential groups are stronger. That inattention becomes significant particularly in the drawing up of the rules on access, which more often than not is done solely by the subdivision.
WHAT CEBU CITY MAY DO under its threat couched in the phrase “marching order”? Surely not to recover ownership of the land being used as roads; they are already owned by the City. Alcover said Beverly Hills roads were donated to the City, under then mayor Eulogio Borres, on March 17, 1976.
The City, under an advocacy waged principally by Alcover, said it wants public access, meaning for the subdivision to allow entry of persons in vehicles or on foot to pass through.
The Beverly Hills association didn’t face that issue head-on; its latest official statement didn’t expressly say that it already allows access though strictly under its own rules. In a way, the association has been granting access through permits issued at the cost of P1,500 per sticker per year to vehicle owners they obviously screen before issuance. That would keep out a lot of commuters, including Alcover who obviously thought that his position as councilor made him exempt from fees.
QUICK LOOK AT THEIR RIGHTS. The City owns the roads, acquiring them from private subdivisions under Presidential Decree No. 1216, which required that upon the completion of “roads, alleys, sidewalks and playgrounds” in such subdivisions, they shall be donated by the private developer or owner to the city or municipality. And the LGU doesn’t have a choice: “it shall be mandatory for the local government to accept.” In the case of Beverly roads, they were in fact donated and accepted.
As cited in a News+One story on the controversy (“Seares: Issue of access to Beverly Hills roads raised anew at City Council,” SunStar, March 17, 2023), it was legal coercion, a statute of a gun on the head of the subdivision developer/owner and the LGU. Not surprisingly, ownership is being used by both sides to claim control on the use of the roads.
And check out their respective rights: While the City owns the roads, the subdivision owners have the right to regulate their use. Under Republic Act No. 9904 of 2010, the homeowners 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.” That right has been upheld in a number of Supreme Court decisions.
But while subdivisions are expressly granted by law the right to regulate the use of the roads, the rules have to undergo public consultations and given the authority from the LGU and other government agencies concerned, and the agreed rules contained in memorandum of agreement.
HOW CITY MAY ASSAIL BEVERLY RULES. The question to ask whether Beverly Hills can lawfully enforce its rules of access to its is apparently this: Were the law’s requirements followed: Were public consultations made, did Cebu City and other government agencies concerned give their authority (meaning, did they approve the rules), and do they have MOA/s to show that the rules were agreed upon by the parties involved?
City Hall can check through documents and testimony of witnesses whether all that was done.
If it was, it may order a review of the rules to see what worked and what did not. If it was not, then the City must insist that the steps prescribed by law be taken. And hey, are they talking to each other at all? Maybe not, which would explain the lawsuit that sadly can take ages to resolve.
COLLATERAL, NOT CORE, ISSUES. Ownership is thus not relevant to the question of regulation. Whether the land is already donated to the LGU or still owned by the developer or homeowners, the rules on regulation of access are specifically spelled out by law.
As to who’s actually maintaining the roads, that won’t change legal rules on public access. If Beverly Hill spent its own money for road maintenance, like any other individual or group paying taxes to the City, it can request for action; presumably, it’s more influential in lobbying than many other groups or citizens.
Regarding the availability of other public roads for the passers-through to use instead, that should’ve been taken up in Beverly Hills’ public consultations and the negotiation with the City and other government agencies concerned. If that was not done, that can be threshed out in a review of the process.