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Opening private village roads to motorists

There are many gated subdivisions in Metropolitan Manila today.  Quezon City and the cities of Makati, Mandaluyong, and San Juan host most of them.  

One of the main reasons why gated subdivisions exist is security.  A subdivision without gates is a subdivision without security guards and is, therefore, a subdivision vulnerable to burglars and other criminal elements.  Subdivision residents, especially those who regularly use the streets inside the village, are potential targets for kidnappers, drug pushers, con men, rapists, and killers.  The risk of getting victimized increases considerably after the daylight hours.  Policemen can be summoned but they usually arrive at the scene of the crime way too late.  Some policemen even give all sorts of excuses for refusing to go to the crime scene, including the lack of fuel for their patrol cars.

On the other hand, a gated subdivision is a village protected by private security personnel, 24 hours daily.  Unlike policemen, private security guards can be summoned immediately and can be expected to show up forthwith when a crime or similar problem occurs within the village.  Because of this, the residents feel safer inside their enclave, and this translates to greater peace of mind.  In exchange for all that, the homeowners maintain village associations and finance their operations by paying their monthly dues.  

Inevitably, the village associations restrict entrance to their subdivisions to village residents. Visitors who wish to see a resident are asked to identify themselves by the security guards manning the gate.  The guards call up the household concerned to ask if the visitor should be allowed inside the village.  Once permission is given, the visitor is made to leave an identification card, usually his or her driver’s license, at the gate.  The ID card is returned to the visitor upon his or her exit from the village.    

Sometimes, the restrictions are so strict even local government officials and policemen find it difficult to gain access to the subdivision.  Look what happened to Makati City Mayor Jun-Jun Binay months ago, when he tried to leave one of the exclusive villages within his territorial jurisdiction.

It must be emphasized that homeowners associations and barangay councils are not one and the same entities.  Barangay officials are elected by the voters of the barangay, including the residents of the villages within its political jurisdiction.  They are public officials.  Officials of village associations, on the other hand, are elected by the homeowners only, and they are not public officials.  In theory, the barangay officials are supposed to be more powerful than officials of the village association.  There are, however, a number of village associations which are more powerful than the barangay council on account of the powerful people who live in that village, and the big amount of money the village association has in its coffers.     

Because these gated subdivisions refuse to open their gates to the motoring public, motorists will just have to make use of the usual public roads.  Traffic eventually accumulates on these roads, especially during the morning and evening rush hours.

More than a decade ago, the mayor of one of the major cities of Metropolitan Manila made a bold attempt to address the traffic problem.  He tried to open a few roads of some of the gated subdivisions in his city during the rush hours in the hope of decongesting the streets leading out of his city.  After the homeowners put up a tough fight in the courts of law, the experiment was discontinued.  Today, the closed gates remain closed to the public, but open to its residents.

With the worsening traffic problem haunting Metropolitan Manila today, some sectors are demanding that these gated subdivisions be made to open their gates to the motoring public during the rush hours.  Supporters of this move are setting their sights on exclusive subdivisions north of the Pasig River like White Plains, La Vista, Xavierville, Corinthian, Horseshoe, Wack-Wack, Greenhills, Valle Verde, Greenmeadows and San Antonio, and those south of it such as Forbes Park, Dasmariñas, San Lorenzo, Urdaneta, Bel-Air and San Antonio.      

Representative Rufus Rodriguez is planning to pursue legislation which will compel certain gated subdivisions to open one or two of their strategic roads to motorists during the morning and evening rush hours.  He is also open to the idea of allowing these villages, through their homeowners associations, to charge fees for such use, e.g., 5 pesos per entry or 300 each month.

The first part of the proposal is legally viable but the second part is fraught with legal infirmity.

Roads of all subdivisions, gated or otherwise, are subject to the police power of the State, i.e., the power of the State to restrict full enjoyment of private property in order to promote public welfare.  Since the proposal is to open only strategic village roads (streets that are vital to easing the movement of vehicles) and not all village roads, and during the morning and evening rush hours only, the proposal has a strong chance of passing judicial scrutiny.   

Allowing the village associations to charge fees will create legal problems.  Since the money to be charged by the associations are exactions mandated by law, then the money collected has a public character.  This means that the funds cannot automatically go to the coffers of the associations.  Allowing the associations to keep the money under these circumstances is class legislation (a law favoring a select group) which violates the equal protection clause of the Constitution.

The roads inside these gated subdivisions are illuminated by electric light posts.  If the local government pays for the electricity consumed by these light posts, then public money is somehow being spent on those roads.  This means that the use of those roads cannot be limited to the residents of the village.  On this premise, allowing the village association to charge fees for the use of such roads will be illegal also on the ground of class legislation.

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