RTC orders Rosario: Issue building permit
PROLONGED LEGAL BATTLE LOOMS
DPWH backs city engineer
A protracted legal battle over the issuance of a building permit may have just begun.
After the Regional Trial Court in Dagupan City issued a writ of mandamus directing City Engineer Ma. Virginia Rosario to immediately issue a building permit to MetroState Realty Corporation for the halted construction of the tourism-commercial building at the former Magsaysay Park, the Dagupan City government is poised to seek a reversal of the decision.
City Legal Officer George Mejia, who is representing Rosario in the civil case, said he has been instructed by Mayor Alipio Fernandez Jr. and City Administrator Alvin Fernandez to file a motion for reconsideration.
Observers believe that the legal battle over the now contentious issue of issuing a building permit may reach all the way to the Supreme Court.
Mejia refused to comment on the decision of the court until after the appeal shall have been filed.
The decision was penned by Judge Rolando Mislang of RTC’s Branch 42 on October 22, 2007 in connection with a civil case filed by MetroState against Rosario following the continued refusal of the latter to issue a building permit.
The complaint against Rosario was for Mandamus with Prayer for Preliminary Injunction and Temporary Restraining Order charging that Rosario has illegally refused to issue a building permit.
The substantive portion of the decision reads: “Wherefore, premises considered, judgment is hereby rendered and a Writ of Mandamus is hereby issued directing the defendant, Engr. Ma. Virginia V. Rosario, in her capacity as the Building Official of Dagupan City, to immediately issue a building permit applied for by the plaintiff to prevent unnecessary delay and/or irreparable damage on the part of the plaintiff.”
In granting the motion of the plaintiff, Mislang ruled that the submission of the Sanggunian Panlungsod (SP) resolution is not a requirement for the issuance of a building permit.
The court maintained that the complaint raised was a purely legal question, stating that the belated argument of the defendant that plaintiff should have first appealed her refusal to issue the building permit before the Secretary of Public Works and Highways is of no moment.
“Exhaustion of administrative remedies is not required where the complaint raised is only a pure question of law,” the decision reads.
In her answer to the complaint, Rosario said the plaintiff has no cause of action because the city mayor at that time, Benjamin Lim, had no authority from the SP, and therefore MetroState had no clear legal right from the contract it signed with Lim.
SUPPORT
Meanwhile, a memorandum to Rosario by the executive director of the National Building Code Development Office of the Department of Public Works and Highways (DPWH) dated October 16, 2007, a copy of which was obtained by The PUNCH, supports Rosario’s stance.
The memorandum, signed by Emmanuel P. Cuntapay, acting Executive Director of NBCDO, may be introduced as additional evidence of the defendant, according to The PUNCH sources.
Cuntapay’s memorandum was in reply to Rosario’s letter dated June 15, 2007 to the officer-in-charge of the Legal Department of DPWH seeking guidance relative to the application for building permit of MetroState.
Rosario‘s letter pointed to the failure of MetroState copy to submit a copy of the resolution of the SP authorizing Lim to enter into a contract with MetroState as the reason for refusing the issuance of the building permit.
“We assume that the prerequisite imposed by the Sangguniang Panlungsod is vital for the proper implementation of the project, and therefore has to be respected,” said Cuntapay, who is Rosario’s immediate superior in her capacity as building official of the city.
“. . . . to avoid any legal problem that your office may encounter in the future, it would be prudent on your part to hold in abeyance issuance of a Building Permit for the subject project until after the said requisites are complied with,” the memorandum states.
For refusing to issue the building permit applied for by MetroState, Rosario is facing separate administrative and criminal cases, the latter of which before the Ombudsman, filed by an official of MetroState.
Sans any building permit, the construction was stopped by Rosario in just a few days after the new city administration of Fernandez took over on July 1.—LM
Share your Comments or Reactions
Powered by Facebook Comments
