December 2, 1998

DAR OPINION NO. 114-98

ATTY . VIRGILIO R. DE LOS REYES

6th Floor, Strata 200 Building

Emerald Avenue, Ortigas Center

Pasig City

Dear Atty. De los Reyes:

This refers to the consolidated letters dated 16 September 1998 and 06 October 1998 respectively, seeking opinion on the queries posed therein, to wit:

1.         Is DAR Clearance still necessary before the Municipal Council can act on the locational clearance application? and

2.         What are the guidelines/procedures that local government units have to observe before granting development permits to owners/developers, whose properties are still agricultural (i.e., fishpond) in character but were already reclassified as either residential, commercial or industrial by virtue of a zoning ordinance?

As culled from your letter together with the attachments appended thereto, you were retained as counsel by the R.N. Symaco Holding, Inc. in connection with their application for the issuance of locational clearance; that the project is intended to be a residential subdivision located at Vivencio Street, Niugan, Malabon, Metro Manila; and that as a condition to the grant of the application, the Municipal Council of Malabon required RM. Symaco Holdings, Inc. to secure clearance from the Department of Agrarian Reform.

Anent your first query, the issuance of DAR Clearance is a condition precedent if the lands in issue are agricultural lands to prevent circumvention of Republic Act No. 6657 (Comprehensive Agrarian Reform Law) and other agrarian related laws, rules and regulations. This is to give substance to Section 4 of R.A. No. 6657 which provides that "the Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of tenurial arrangement and commodity produced, all public and private lands as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture. Thus, all lands devoted to or suitable for agriculture shall be covered by CARP notwithstanding that they are located within the Metro Manila Area.

However, if the subject landholding was already reclassified as non-agricultural prior to the effectivity of the Comprehensive Agrarian Reform Law (CARL) on 15 June 1988, an application for exemption by the landowner shall be required pursuant to the provisions and requirements of DAR Administrative Order No. 6, Series of 1994 (Copy attached). On the other hand, if said landholding had been reclassified as nonagricultural after 15 June 1988, an application for conversion shall be required pursuant to the provisions and requirements of DAR Administrative Order No. 7, Series of 1997 (copy attached).

Anent your second query, the authority of the local government units to reclassify lands emanates from Section 20 of Republic Act No. 7160 (Local Government Code of 1991) which. pertinently provides in part that a city or municipality may, through an ordinance passed by the sanggunian after conducting public hearing for the purpose, authorize the reclassification of agricultural lands and provide for the manner of their utilization or disposition in the following cases: (1) when the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture or (2) where the land shall have substantially greater economic value for residential, commercial, or industrial purposes, as determined by the sanggunian concerned." Clearly, the authority to enact zoning ordinance and reclassify lands is lodged with the local government units concerned while the authority to approve or disapprove applications for conversion belongs to the Department of Agrarian Reform. The provisions of DAR Administrative Order No. 07, Series of 1997 (cited earlier) shall likewise serve as guide for local government units on matters pertaining to applications for land use conversion.

Lastly, it bears stressing here, however, that before a Local Government Unit (LGU) could properly enact an ordinance reclassifying agricultural lands into nonagricultural use, the Sanggunian concerned must first secure the following certificates:

1.         Certifications from DA indicating the total area of existing agricultural lands in the city or municipality, that such lands are not classified as non-negotiable for conversion or reclassification; and that the land has ceased to be economically feasible and sound for agricultural purposes; and

2.         Certification from DAR indicating that such lands are not distributed, or not covered by a notice of coverage or not voluntarily offered for coverage under CARP.

We hope to have clarified the matters with you.

Very truly yours,

(SGD.) DANILO T. LARA

Undersecretary for Legal Affairs, and Policy and Planning

Copy furnished:

Hon. Roberto R Romero, M.D.

Councilor

Municipality of Malabon