462 Phil. 803
YNARES-SANTIAGO, J.:
Section 41 3(d). Funeral Establishments shall be at a minimum radial distance from the following:Under the same ordinance, funeral establishments are classified and allowed to operate in certain areas, as follows:[4]
d.1 restaurants, food center and other food establishments - at least 25 meters.
d.2 markets - at least 50 meters.
d.3 abattoirs, schools and hospitals - at least 200 meters.[3]
a) Funeral Establishments shall be classified as ...:On June 17, 2002, respondent applied with the City Zoning Board of Adjustments and Appeals (CZBAA) of Iloilo for the issuance of a permit to operate a funeral establishment on a 4-storey building located between a restaurant[5] and a bakery in the commercial zone of Iloilo City, classified as C2. Invoking Section 46 of the zoning ordinance which gives the CZBAA the discretion to grant exceptions from the provisions thereof,[6] respondent contended that since its business is classified under Category II, i.e., without embalming facilities, it should be excepted from the prohibition to operate a funeral establishment at a radial distance of less than 25 meters from food establishments.a.1. Category I - funeral establishments with chapels, embalming facilities and offering funeral services.
Category II - funeral establishments with chapels and offering funeral services without embalming facilities; and
Category III - funeral establishments offering only funeral services from house of the deceased to the burial place.
b) Funeral establishments shall be allowed in the following zones:Category I - C2 or an area within the city with quasi-trade business activities and services performing complementary/supplementary functions to principally commercial zone.
Category II - C1 or an area within the city principally for trade, services and business activities ordinarily referred to as Central Business District; C-2; and Institutional Zone.
Category III - C1; C2; and Institutional Zone.
WHEREAS, SECTION 47 sets the procedures for Granting of Exceptions and Variances, which is the specific issue raised by the applicant;Consequently, respondent filed a petition for mandamus[8] with the Regional Trial Court of Iloilo City, Branch 29 to compel the CZBAA of Iloilo to grant its prayer for exception and to issue the corresponding permit to operate a funeral establishment under Category II. Respondent claimed that Zoning Ordinance No. 2001-072 is unconstitutional insofar as it prohibits the operation of funeral establishments without embalming facilities (Category II) within a radial distance of less than 25 meters from food establishments; and assuming that the ordinance is valid, the CZBAA gravely abused its discretion in outrightly denying the application.
WHEREAS, the board took cognizance of existing HLURB Regulations, CLUP presentations on Flood-Prone Areas, the role of the Iloilo City Zoning Board of Adjustment and Appeals being a creation and implementor of the aforementioned ordinance;
WHEREAS, the said ordinance provides that Section 41.3(d) "Funeral establishments shall be at minimum radial distance from the following:
d.1. restaurants - at least 25 meters xxx" and shall conform with existing laws, rules and regulations, affecting the same;
NOW, THEREFORE, premises considered and on motion of Atty. Saturnino B. Gonzales, Jr., duly seconded by Mr. Florendo Besana and Atty. Mary Milagros A. Hechanova, resolve as it is hereby resolved to DENY the appeal of GEGATO-ABECIA Funeral Homes, Inc. for exception and for issuance of a Mayor's Permit to operate a funeral parlor at Brgy. Quintin Salas, Jaro, Iloilo City.
Unanimously APPROVED.[7]
WHEREFORE, premises considered, and finding the prayer for Mandamus to be impressed with merit, a Writ of Mandamus is hereby issued against the respondents directing them to grant the appeal for exception and to issue the corresponding Mayor's Permit for the Gegato-Abecia Funeral Homes, Inc. to operate a funeral establishment under Category II of the City Zoning Ordinance in the building standing on the property of petitioner along the Highway of Barangay Quintin Salas, Jaro, Iloilo City.A motion for reconsideration thereof was denied on February 12, 2003.[12]
SO ORDERED.[11]
Petitioner also argues that it is seeking to enforce, through the petition for mandamus, a clear legal right under the Constitution and the pertinent provisions of the Local Government Code granting tax exemption on properties actually, directly and exclusively used for educational purposes. But petitioner is taking an unwarranted shortcut. The argument gratuitously presumes the existence of the fact which it must first prove by competent and sufficient evidence before the City Assessor. It must be stressed that the authority to receive evidence, as basis for classification of properties for taxation, is legally vested on the respondent City Assessor whose action is appealable to the Local Board of Assessment Appeals and the Central Board of Assessment Appeals, if necessary.In the case at bar, respondent failed to exhaust the available administrative remedies before seeking judicial intervention via a petition for mandamus. Section 55C of Zoning Ordinance No. 2001-072, which was duly reviewed and ratified by the Housing and Land Use Regulatory Board, categorically provides that "[d]ecisions of the Local Zoning Board of Adjustment and Appeals shall be appealable to the HLURB."
The petitioner cannot bypass the authority of the concerned administrative agencies and directly seek redress from the courts even on the pretext of raising a supposedly pure question of law without violating the doctrine of exhaustion of administrative remedies. Hence, when the law provides for remedies against the action of an administrative board, body, or officer, as in the case at bar, relief to the courts can be made only after exhausting all remedies provided therein. Otherwise stated, before seeking the intervention of the courts, it is a precondition that petitioner should first avail of all the means afforded by the administrative processes.[15]
a) Promulgate zoning and other land use control standards and guidelines which shall govern land use plans and zoning ordinances of local governments;...On March 23, 1993, then President Fidel V. Ramos issued Executive Order No. 71 devolving the power of the HLURB to approve subdivision plans to cities and municipalities pursuant to the Local Government Code. Section 1 thereof reads:
b) Review, evaluate and approve or disapprove comprehensive land use development plans and zoning ordinances of local government[s];...x x x x x x x x x
f) Act as the appellate body on decisions and actions of local and regional planning and zoning bodies and of the deputized officials of the Commission, on matters arising from the performance of these functions.
SECTION 1. – Cities and municipalities shall heretofore assume the powers of the Housing and Land Use Regulatory Board (HLURB) over the following:Section 2 of E.O. No. 71, however, specifically states that "[t]he HLURB shall retain such powers and functions not otherwise expressly provided herein or under existing laws." One of such powers not expressly withdrawn by E.O. No. 71 is the power of the HLURB to act as an appellate body to which decisions and actions of local and regional planning and zoning bodies may be brought (Section 5(f) of Executive Order No. 648). Expressio unius est exclussio alterius. The express mention of one person, thing or consequence implies the exclusion of all others. Inasmuch as Section 1 of E.O. No. 71 does not include the appellate jurisdiction of the HLURB over decisions of local government units, it follows that said power was retained by it and not among those devolved to local government units. In fact, Section 4 of E.O. No. 71 affirms the power of the HLURB to review actions of local government units on the issuance of permits -
(a) Approval of preliminary as well as final subdivision schemes and development plans of all subdivisions, residential, commercial, industrial and for other purposes of the public and private sectors, in accordance with the provisions of P.D. No. 957 as amended and its implementing standards, rules and regulations concerning approval of subdivision plans;[18]
(b) Approval of preliminary and final subdivision schemes and development plans of all economic and socialized housing projects as well as individual or group building and occupancy permits covered by BP 220 and its implementing standards, rules and regulations;
c) Evaluation and resolution of opposition against the issuance of development permits for any of the said projects, in accordance with the said laws and the Rules of Procedure promulgated by the HLURB incident thereto;
d) Monitoring the nature and progress of land development projects it has approved, as well as housing construction in the case of house and lot packages, to ensure their faithfulness to the approved plans and specifications thereof, and, imposition of appropriate measures to enforce compliance therewith;
In the exercise of such responsibilities, the city or municipality concerned shall be guided by the work program approved by the Board upon evaluation of the developer's financial, technical and administrative capabilities;
Moreover, the city or municipality concerned may call on the Board for assistance in the imposition of administrative sanctions and the Department of Justice (DOJ) in the institution of the criminal proceedings against violators;
(e) Assessment and collection of fees incident to the foregoing.
SEC. 4. – If in the course of evaluation of application for registration and licensing of projects within its jurisdiction, HLURB finds that a local government unit has overlooked or mistakenly applied a certain law, rule or standard in issuing a development permit, it shall suspend action with a corresponding advice to the local government concerned, so as to afford it an opportunity to take appropriate action thereon. Such return and advice must likewise be effected within a period of thirty (30) days from receipt by HLURB of the application.Moreover, Executive Order No. 72, series of 1993 (Providing for the Preparation and Implementation of the Comprehensive Land Use Plans of Local Government Units Pursuant to the Local Government Code of 1991 and other Pertinent Laws), gives the HLURB the power to review and ratify land use plans of highly urbanized cities, like Iloilo City,[19] viz –
SEC. 2. x x x.Respondent cannot rely on the July 19, 2002 Order of the HLURB which declined to assume jurisdiction over respondent's application for a locational clearance to operate a funeral home. It appears from the record that respondent filed his application for the issuance of a permit with the HLURB before it filed a similar application with the CZBAA of Iloilo. In indorsing the application to the latter, the HLURB ratiocinated as follows:
(e) Pursuant to LOI 729, S. of 1978, E.O. 648 S. of 1981, and RA No. 7279, the comprehensive land use plans of provinces, highly-urbanized cities and independent component cities shall be reviewed and ratified by the HLURB to ensure compliance with national standards and guidelines.
Considering that Iloilo City has already updated its Comprehensive Land Use Plan and the same was approved and ratified by the Board on March 14, 2001, authority to issue Locational Clearance is now vested in the city government pursuant to Executive Order No. 71, Series of 1986, implementing Section 20 and other related provisions of the Local Government Code of 1991. In view thereof, the Board is divested of the power to act on pending applications therefore.We note that the HLURB's refusal to act on the application was not based on the absence of appellate jurisdiction, but on lack of authority to issue locational clearances. The HLURB correctly indorsed the application to the zoning administrator of the city because the power to issue permits and locational clearances for locally significant projects is now lodged with the city/municipality with a comprehensive land use plan. This is in accordance with Executive Order No. 72, which was issued to delineate the powers and responsibilities of local government units and the HLURB in the preparation and implementation of comprehensive land use plans under a decentralized framework of local governance.[21] Section 3 of Executive Order No. 72, provides:
WHEREFORE, let the records of this case be indorsed to the Zoning Administrator of the City or the body/official performing the equivalent function for its proper disposition.
SO ORDERED.[20]
SEC 3. Plan implementation. – (a) The authority of the HLURB to issue locational clearance for locally significant projects is hereby devolved to cities and municipalities with comprehensive land use plans reviewed and approved in accordance with this Order. Such cities and municipalities shall likewise be responsible for the institution of other actions in the enforcement of the provisions thereof. For this purpose, they may call on the HLURB and such other NGAs for any legal and technical assistance.The power of the HLURB to issue locational clearance is now limited to projects considered to be of vital and national or regional economic or environmental significance. Second paragraph of Section 3 of Executive Order No. 72, further states that –
Based on established national standards and priorities, the HLURB shall continue to issue locational clearances for projects considered to be of vital and national or regional economic or environmental significance. Unless otherwise declared by the NEDA Board, all projects shall be presumed locally significant.Clearly therefore, what were devolved to local government units were only the powers and responsibilities specifically stated in Section 1 of E.O. No. 71, as well the authority of the HLURB to issue locational clearance for locally significant projects as provided in Section 3 of E.O. No. 72. The power to act as appellate body over decisions and actions of local and regional planning and zoning bodies and deputized official of the board was retained by the HLURB and remained unaffected by the devolution under the Local Government Code.