CHAPTER 13

CLOSURE AND OPENING OF ROAD, ALLEY, PARK OR SQUARE

A local government unit may pursuant to an ordinance, permanently or temporarily close
or open any local road, alley, park, or square falling within its jurisdiction. This is expressly
provided for by law, but it is submitted that such power to close or open public places shall be
deemed implied in the General elfare power of every local government unit.
!losure of road, alley, park or square may be permanent or temporary. "t may also
involve local or national road, alley park or square.
Permanent Clo!re
"n case of permanent closure, the ordinance authori#ing it must be approved by at least
two$thirds %&'() of all the members of the sanggunianconcerned, and when necessary, an
adequate substitute for the public facility that is subject to closure is provided.
*o such way or place or any part thereof shall be permanently closed without making
provisions for the maintenance of public safety therein. A property thus permanently withdrawn
from public use may be used or conveyed for any purpose for which other real property
belonging to the local government unit concerned may be lawfully used or conveyed. +owever,
no freedom park shall be closed permanently without provision for its transfer or relocation to a
new site.
"n addition, no permanent closure of any local road, street, alley, park, or square shall be
affected unless there exists a compelling reason or sufficient justification therefore such as, but
not limited to, change in land use, establishment of infrastructure facilities, projects, or such
other justifiable reasons as public welfare may require.
"n Macasiano vs. Diokno, the ,upreme even required that aside from the requirement of
due process which should be complied with before closing a road, street or park, the closure
should be for the sole purpose of withdrawing the road or other public property from public use
when circumstances show that such property is no longer intended or necessary for public use or
public service.
"n order to comply with the due process requirement announced earlier in the case of
Macasiano vs. Diokno, the "mplementing -ules now specifically require that public hearings
shall first be conducted before any ordinance authori#ing permanent closure of any local road,
alley, park, or square is enacted. *otices of such hearings and copies of the proposed ordinance
shall be posted for a minimum period of three %() consecutive weeks in conspicuous places in the
provincial capitol, or in the city, municipal, or barangay hall of the local government unit and
within the vicinity of the street or park proposed to be closed.
"n Cebu Oxygen and Acetelyne Co. vs. Berciles, the !ity !ouncil of !ebu, through a
resolution %which was then the legal requirement), declared the terminal road of ..
/orcess,treet, .abolo, !ebu !ity as an abandoned road, the same not being included in the !ity
0evelopment 1lan. Thereafter, the !ity !ouncil passed another resolution authori#ing the sale of
the said abandoned road through public bidding. The ,upreme !ourt held therein that the !ity of
!ebu is empowered to close a city street and to vacate or withdraw the same from public use.
,uch withdrawn portion becomes patrimonial property which can be the object of an ordinary
contract.
As a rule, property of public dominion ceases to be such and becomes private property of
the ,tate only upon a declaration by the government through the executive or legislative
departments to the effect that it is no longer needed for public use or service. "t is the submitted,
however, that !ongress has already declared, through the 2G! of 3443, that 5a property thus
permanently withdrawn from public use may be used or conveyed for any purpose for which
other real property belonging to the local government unit concerned may be lawfully used or
conveyed.6
Tem"orar# Clo!re
Any national or local road, alley, park, or square may be temporarilyclosed during an
actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs, or an
undertaking of public works and highways, telecommunications, and waterworks projects, the
duration of which shall be specified by the local chief executive concerned in a written order. "n
case of fiesta celebrations, the closure should not exceed nine %4) days.6 *o national or local
road, alley, park, or square shall be temporarily closed for athletic, cultural, or civic activities not
officially sponsored, recogni#ed, or approved by the local government unit concerned.
Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily close
and regulate the use of any local street, road thoroughfare, or any other public place where
shopping malls, ,unday, flea or nigh markets, or shopping areas may be established and where
goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold and
dispensed to the general public.6
No $!t Com"enat%on %n &eneral
The closure of a road, alley, park or square presupposes an exercise of police power.
+ence, for nay loss or inconvenience caused to a property owner, is a 5damnumabsqueinjuria
%literally 5damage without injury6), hence, no compensation.6
The argument in Sangalang vs. IAC, that the demolition of the gates at 7rbit and 8upiter
,treets in order to open a road to vehicular traffic amounts to deprivation of property without due
process of law or expropriation without just compensation was brushed aside by the ,upreme
!ourt as there was no taking of property involved there. The act of the .ayor that was
challenged in that case was, rather, in the concept of police power. "ndeed, unlike the power of
eminent domain, police power is exercised without provision for just compensation. Article 9(:
of the !ivil !ode of the 1hilippines also explicitly provides that when any property is
condemned or sei#ed by competent authority in the interest of health, safety or security, the
owner thereof shall not be entitled to compensation, unless he can show that such condemnation
or sei#ure is unjustified. +owever, it may not be done arbitrarily or unreasonably. /ut the burden
of showing that it is unjustified lies on the aggrieved party.
Po'er to (loe roa), et(* )%(ret%onar# to t+e LGU
The local legislative body has the competence to determine whether or not a certain
property is still necessary for public use. ,uch power therefore is discretionary and this
discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of
abuse or fraud or collusion. ;aithfulness to the public trust will be presumed. ,o the fact that
some private interests may be served incidentally will not invalidate the vacation ordinance.
"n Pilapil vs. CA, the establishment, closure or abandonment of the camino vicinal was
found to be the sole prerogative of the .unicipality. The ,anggunian has the power to adopt
#oning and subdivision ordinances or regulations subject to the provision of existing laws, and to
provide for the construction, improvement, repair and maintenance of municipal streets, avenues,
alleys, sidewalks, bridges, parks and other public places, regulate the use thereof and prohibit the
construction or placing of obstacles or encroachments on them. There he ,upreme !ourt ruled,
thus<
5The property of provinces, cities and municipalities is divided into property for public
use and patrimonial property. The first consists of the provincial road, city streets, municipal
streets, squares, fountains, public waters, promenades and public works for public service paid
for by the said provinces, cities or municipalities. They are governed by the same principles as
property of public dominion of he same character.
A camino vicinal is a municipal road. "t is also property for public use.
1ursuant, therefore, to the above powers of a local government unit, the
.unicipality of 2"loan had the unassailable authority to< %a) prepare and adopt a
land use map, %b) promulgate a #oning ordinance which may consider, among
other things the municipal roads to be constructed, maintained, improved or
repaired, and %c) close any municipal road.6