UNDERSTANDING PARR’S NO “NO-BUILD ZONE” POLICY : Good, Bad, or What and Who Will Have the Final Say?

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
15 March 2014

Just the other day, the Office of the Presidential Assistant for Recovery & Rehabilitation (OPARR) issued a press release that they are not recommending a 40m “No Build Zone” policy for Yolanda-affected areas, saying that a blanket application of the policy will not address exceptional circumstances and may be impractical for certain areas, highlighting that in some areas, there will be fishing industries or tourism-oriented businesses that still need to build structures within 40m from the coastline while other areas (which are covered by the 40m “No Build Zone”) are located in high elevations which are not susceptible to storm surges.

The PARR recommended instead the creation of “safe zones”, “unsafe zones” and “no dwelling zones”. In areas set aside as “unsafe zones”, no structures would be build but in areas where structures are necessary for livelihood or commercial purposes, residential structures will be prohibited thus they will be considered as “no dwelling zones”. The press release does not elaborate it, but it appears that “safe zones” are areas where the usual buildings and structures of whatever kind will be allowed.

Local government units, residents in the affected areas, fisherfolk communities, NGOs, including businesspeople need to understand the implications of this policy. Offhand, it must be noted that, as reported online by Sunstar, Tacloban City passed already an ordinance on such a policy, institutionalizing it, at least in the City. This means that this policy will no longer apply to Tacloban City, the epicenter of almost all media events and celebrity visits thus far, to the detriment or non-highlighting of the similar situation experienced by other affected areas.

Judging from the news reports on the subject, the no-build zone policy is opposed by fishermen- they need their boats near the sea and as reported by Rappler.com, the fishermen need only to push their boats across the sand to get to the shore a few meters away; even the survivors themselves are opposed to the policy, as most of them have their homes and other forms of livelihood within these zones.

At first glance, the stated PARR policy seems reasonable, but are not the areas set for livelihood or commercial purposes, which is common practice in almost all areas in urban and rural areas in Philippines, also used as dwellings by those who run these establishments, thus, making them “no-dwelling zones” will add to the hardship of the residents and businesspeople running these places as they may have to incur expenses traveling to and from their residences and their places of livelihood or business. These people will, as a consequence of this policy, may have to incur twice the expense now, rebuilding their businesses and livelihoods and finding a shelter they can call their own. Can these people really afford it? Isn’t it that the usual way is one revive’s one business or livelihood first and then if business is good, sets aside some funds to build one’s house.

How about those earlier-mentioned fishing industries or tourism-oriented businesses, are they in the category of “safe zones” or “no-dwelling zones”, what can they do and not do being part of such zones? Can they expand their perimeters or there are certain limitations as to what they can do within their boundaries? What about if the business will shut down, will their status remain, and what about if they expand, are there limits to what they can do?

Finally, who gets to have the final say on what these zones will be, it is clear the PARR is only a recommendatory body, as its press release also said, it will all be up to the Sanggunians or legislative bodies of these areas, who will have the final say in this.

Perhaps to get a better sense of what kind of policy needs to be established, one may need to go back to a similar policy but may not be the same in intent – the easement of public use in water bodies, found in art. 51 of a Marcos-era Presidential Decree signed into law in 1976, the Water Code of the Philippines, which reads :

Article 51. The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40) meters in forest areas, along their margins are subject to the easement of public use in the interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind.

This law talks about a legal entity called an easement, which, according to a recent case decided by the Supreme Court (Pilar Development Corporation v. Ramon Dumadag, et.al., G.R. No. 194336, March 13, 2013) on this, is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community. In other words, an easement is an imposition or burden set on another property, which in this case is to benefit the broader public or the community. This is something that must be done by a property owner, to benefit the public. At the outset, an area set aside for this kind of easement cannot fence off an area to keep away the public as that area is for everybody, for everybody’s kind of purposes.

What the Water Code envisages is either a 3-meter (for urban areas), 20-meter (in agricultural areas), or a 40-meter (in forest areas) easements of public use, and as stated by the Code, “in the interest of recreation, navigation floatage, fishing and salvage.” To further elaborate what this easement for public use will entail, the Code further says : “no person shall be allowed to stay in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of any kind.”

The idea of a “no-build zone” is of a different kind, and as gleaned from the statements of the DENR Secretary, it means what it says, nothing will be built in these areas, but the reason is to prevent further hazards from natural calamities such as earthquakes, and as recent experience has made us realize, including storm surges. The DENR has not elaborated what further uses of the area may be possible in case nothing is build on it anymore, like what the Water Code easements provide as discussed.

The Supreme Court case earlier cited however mentions a DENR Administrative Order No. 99-21 which provides details on these public easements. So, perhaps to clarify what can be done and not be done in these no-build zones, perhaps a further administrative issuance maybe necessary.

What the PARR has proposed needs to be further debated and reflected upon, perhaps it may only call for the dusting-off and application of old laws that may actually suit what the situation calls for.

oOo

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8 Responses to UNDERSTANDING PARR’S NO “NO-BUILD ZONE” POLICY : Good, Bad, or What and Who Will Have the Final Say?

  1. jerry magallanes says:

    i need further explaination about this 40 meters NO BUILDZONE.how about improved areas for tourism and make business like dive resort

  2. Rene Ofreneo says:

    Hi Ping.
    Long time no hear.
    The Ayalas used the 40-meter no-build zone to ease out the poor in Sicogon Island, Carles, Iloilo, to pave the way for a new “Boracay” project, per documentation by NASSA of Fr. Edu G.
    Maybe you can write another piece on how noble reasons are used for ignoble plans of the rich.
    Btway, in Hawaii, the law requires all resort owners to have open and free access of the public to the beach areas, which are considered part of the commons.
    Hope to ehear from you again.
    Rene Ofreneo (reneofreneo@gmail.com).

    • Sir, thanks for that information. That easement set in the Water Code cannot be used to remove people and build in place of it a new structure. The groups there should have sued the Ayalas so they would have the leverage to use Ayala’s resources to let them secure a better area in which to live. The poor groups there don’t have a right just the same to make it their permanent abode as the concept of easement means it is for everybody and not for anyone specifically.

      Ping

  3. Jimmy says:

    Hi,
    Does it affect the ownership of the property? I have a lot near a beach. When they placed the no build zone marker, a person built a small hut next to it, and he claimed that it’s no longer my property, it’s the government already, so he insisted that only the government can make him leave.

    • hi Jimmy,

      The NBZ supposedly cannot touch vested rights, such as your property, if it was titled before the declaration of that area as NBZ. Now, vis-a-vis that person who build a small hut next to your property and claims it’s now his and not yours, why not sue him in court for ejectment so that he will find out. In a contest of rights in court, one who has a title over the property has a better chance of prevailing versus one who does not. The declaration of an area as a NBZ is a public safety measure and if your property was titled before the declaration, the govt or the LGU which declared the area as NBZ will have to compensate you for taking over your property. Talk it out with the proper agency that issued the NBZ, which is usually the LGU. Thanks for the question, please don’t hesitate to ask further if there are things that are not clear in what I just mentioned.

  4. Ann Diorec says:

    Hello,
    I hope you will receive this. I would like to ask if this national law does not allow temporary or movable materials like tables and chairs in the salvage zone? Here in our place, we were allowed to put tables and chairs from 5pm to 11pm on the beach for dining tourists. But just recently, the municipality prohibited us from doing so, I just wanted to clarify whether what is considerably allowed by law or not.

    thank you

    • Hi Ann,

      Can you email me a copy of the ordinance or order that prohibited you from doing what you were doing before? The rule on easements that was mentioned in the blog post meant no one can claim for his or her own exclusive use such areas as they are meant for the public in general though the things you just did is not in a way a violation of such rule since your scheme is open to the public, though it can be argued that the profit you earn is for your own, but that’s a separate argument. My email is pingperia16@gmail.com. Thanks for the query, hope the blog enlightened you somewhat.

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