Fernando vs. St. Scholastica's College

For an ordinance to be a valid exercise of police power, there must be a concurrence of a lawful subject and a lawful method; the means employed must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. A regulation that permanently divests owners of the beneficial use of their property or amounts to a taking without just compensation is invalid.

The case arises from Marikina City's efforts at urbanization and modernization under its "Clean and Green Program." The Sangguniang Panlungsod enacted Ordinance No. 192 (1994), as amended, to regulate fence construction, ostensibly to prevent the concealment of criminal activity, promote public safety, enhance aesthetic beauty, and encourage "neighborliness" by discouraging high, solid walls.

• Respondents filed a petition for prohibition with an application for a writ of preliminary injunction before the RTC of Marikina, Branch 273 (SCA Case No. 2000-381-MK).
• RTC issued a writ of preliminary injunction on June 30, 2000, and granted the petition on October 2, 2002, permanently enjoining enforcement of the ordinance.
• Petitioners appealed to the CA (CA-G.R. SP No. 75691).
• CA dismissed the appeal and affirmed the RTC decision on December 1, 2003.
• Petitioners filed a petition for review on certiorari under Rule 45 with the SC.

• Respondents: St. Scholastica’s College (SSC) and St. Scholastica’s Academy-Marikina, Inc. (SSA-Marikina) are educational institutions. SSC owns a 56,306.80 sqm property in Marikina Heights, used for SSA-Marikina, a residence for Benedictine sisters, a novices' formation house, and a retirement house.
• The Property: The property is enclosed by a tall concrete perimeter fence built approximately 30 years prior to the dispute. Abutting the fence are various structures including guards' posts, waiting areas, a shrine, and utility buildings.
• Ordinance No. 192, Series of 1994 (as amended):
  • Section 3.1: Requires front yard fences to be no more than 1 meter high; fences exceeding 1 meter must be an "open fence" type with at least 80% see-thru capability.
  • Section 5: Prohibits walls and fences within a 5-meter parking area allowance located between the front monument line and the building line for educational institutions.
  • Section 7: Grants a 5-year transitory period for educational institutions to conform.
  • The Dispute: On April 2, 2000, the City Government ordered respondents to demolish their solid fence, replace it with an 80% see-thru fence, and move it back 6 meters to provide parking space. Respondents refused, arguing this would destroy structures and appropriate over 3,700 sqm of their property without compensation.

• Ordinance No. 192 is a valid exercise of police power under the General Welfare Clause (Section 16, RA 7160) to promote public safety, security, health, morals, and aesthetics.
• The 5-meter setback does not constitute a taking; ownership remains with respondents, intended primarily for the use of students and faculty, with public use being merely incidental.
• The 80% see-thru requirement is reasonably necessary to prevent the concealment of unlawful acts and to promote "neighborliness."
• The ordinance is a curative statute retroactively applicable to correct alleged defects or insufficiencies in the National Building Code (PD 1096).
• The invalidity of Section 5 was cured by the subsequent enactment of Zoning Ordinance No. 303, Series of 2000.

• The setback requirement constitutes a taking of 3,762.36 square meters of private property for public use without just compensation, violating Section 9, Article III of the Constitution.
• Demolition and setback would result in the destruction of beneficial improvements (guards' posts, waiting areas, etc.) and permanent loss of property use.
• The 80% see-thru requirement violates the right to privacy of the Benedictine sisters residing on the property and is not reasonably necessary to prevent crime; solid walls provide superior security.
• Aesthetic goals cannot justify the deprivation of property rights under the guise of police power.
• The ordinance is not a curative statute as it does not cure any defect or irregularity in existing law.

• Procedural Issues:
  • Whether the SC should consider Zoning Ordinance No. 303, Series of 2000, raised for the first time on appeal.
• Substantive Issues:
  • Whether Section 5 (5-meter setback requirement) of Ordinance No. 192 is a valid exercise of police power or an unconstitutional taking without just compensation.
  • Whether Section 3.1 (80% see-thru fence requirement) is a valid exercise of police power or an unreasonable and oppressive regulation violating property and privacy rights.
  • Whether Ordinance No. 192 is a curative statute that may be given retroactive application.

• Procedural: The SC refused to consider Zoning Ordinance No. 303. A party cannot change the legal theory of the case or raise new points of law for the first time on appeal, as it offends basic rules of fair play, justice, and due process. Furthermore, Ordinance No. 303 (a zoning ordinance) could not "cure" Ordinance No. 192 (a fence regulation) as they have different purposes and subjects.
• Substantive:
  • Section 5 is invalid. It constitutes a taking of private property for public use without just compensation. The deprivation of beneficial use—not merely the transfer of title—is the determinative factor of a taking. The requirement to dedicate 3,762.36 sqm for public parking permanently divests respondents of the beneficial use of their property. The means (setback) are not reasonably necessary for the stated goals of crime prevention or beautification.
  • Section 3.1 is invalid. The 80% see-thru requirement is not reasonably necessary to prevent the concealment of unlawful acts; there is no logical connection between transparent fences and crime deterrence. The requirement is unduly oppressive, violates respondents' right to property, and infringes on the right to privacy of the Benedictine sisters residing on the property. The State may not, under the guise of police power, permanently divest owners of the beneficial use of their property solely for aesthetic purposes.
  • The ordinance is not a curative statute. Curative statutes validate acts that were invalid under existing laws or cure defects in prior legislation. Ordinance No. 192 merely adds new requirements to the National Building Code; it does not cure any irregularity or invalidity in that Code.
  • Separability: The invalidity of Sections 3.1 and 5 does not affect the validity of the remaining provisions of the ordinance, which remain enforceable.

• Police Power (Rational Relationship Test) — The power vested in the legislature (and delegated to LGUs) to enact ordinances promoting public health, safety, morals, and welfare. For a valid exercise: (1) the interests of the public generally require its exercise; and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The SC applied this to strike down Sections 3.1 and 5 for failing the second requisite.
• Taking (Eminent Domain) — A taking occurs when there is a deprivation of beneficial use or value, even if title remains with the private owner. The SC applied this to find that the 5-meter setback requirement, which allowed public parking on private land, was a compensable taking requiring just compensation under Section 9, Article III of the Constitution.
• Curative Statute — Legislation enacted to cure defects in a prior law or validate legal proceedings that would otherwise be void for want of conformity with legal requirements. By their essence, they are retroactive. The SC rejected the application of this doctrine because the ordinance did not cure any defect in the National Building Code.
• Right to Privacy — The right to be let alone, inherent in the concept of liberty and guaranteed by the Bill of Rights. The SC held that requiring a see-thru fence for a property containing a private residence (the nuns' convent) violated this fundamental right.

• "The test of a valid ordinance is well established... it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable."
• "As with the State, local governments may be considered as having properly exercised their police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require its exercise and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and lawful method."
• "It is a settled rule that neither the acquisition of title nor the total destruction of value is essential to taking. In fact, it is usually in cases where the title remains with the private owner that inquiry should be made to determine whether the impairment of a property is merely regulated or amounts to a compensable taking."
• "The State may not, under the guise of police power, permanently divest owners of the beneficial use of their property solely to preserve or enhance the aesthetic appearance of the community."
• "The right to privacy is essentially the right to be let alone..."

• White Light Corporation v. City of Manila — Cited for the test of a valid ordinance and the levels of judicial scrutiny (rational basis, intermediate, strict).
• Social Justice Society (SJS) v. Atienza, Jr. — Cited for the requisites of valid police power (lawful subject and lawful method).
• City of Manila v. Laguio, Jr. — Cited for the principle that personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded under the guise of protecting the public interest.
• Office of the Solicitor General v. Ayala Land, Incorporated — Cited for the principle that taking is determined by deprivation of beneficial use, not merely transfer of title.
• People v. Fajardo — Cited for the principle that the State cannot divest owners of property use solely for aesthetic purposes.

• Section 16, Republic Act No. 7160 (Local Government Code of 1991) — The General Welfare Clause, delegating police power to local government units.
• Section 9, Article III, 1987 Constitution — Eminent domain clause prohibiting the taking of private property for public use without just compensation.
• Section 1, Article III, 1987 Constitution — Due process clause.
• Presidential Decree No. 1096 (National Building Code of the Philippines) — Referenced as the law allegedly sought to be supplemented/cured by the ordinance; Rule XIX thereof cited regarding parking requirements for educational institutions.