HON. MA. LOURDES C. FERNANDO, IN HER CAPACITY AS CITY MAYOR OF MARIKINA CITY, JOSEPHINE C. EVANGELISTA, IN HER CAPACITY AS CHIEF, PERMIT DIVISION, OFFICE OF THE CITY ENGINEER, A…

Fernando versus St. Scholastica's College

The Case

This is a petition for review on certiorari brought by the officials of the City Government of Marikina — the City Mayor, the Chief of the Permit Division of the Office of the City Engineer, and other city officers — against St. Scholastica's College and St. Scholastica's Academy-Marikina, two educational institutions whose campus in Marikina Heights is enclosed by a tall concrete perimeter fence built some thirty years ago. The City sought to enforce Ordinance No. 192, series of 1994, which regulates the construction of fences and walls, requiring that fences in excess of one meter be at least eighty percent see-through and that walls and fences be set back five meters from the front monument line. The respondents obtained a writ of prohibition from the Regional Trial Court to stop the enforcement. The case matters because it is the Supreme Court's cleanest teaching on the limits of police power: a local ordinance may regulate property, but when it substantially divests an owner of the beneficial use of private property without just compensation, it crosses into eminent domain and falls under the due process clause.

Procedural History

The respondents filed a petition for prohibition with an application for a writ of preliminary injunction and a temporary restraining order before the Regional Trial Court of Marikina, Branch 273. The trial court issued a writ of preliminary injunction on June 30, 2000, enjoining the demolition. On the merits, in a decision dated October 2, 2002, the trial court granted the petition and issued a writ of prohibition commanding the petitioners to permanently desist from enforcing or implementing Ordinance No. 192 on the respondents' property. The trial court held that the demolition order and the six-meter setback would amount to an appropriation of property that could only be done through eminent domain, with payment of just compensation.

The petitioners appealed to the Court of Appeals. In its decision dated December 1, 2003, the Court of Appeals dismissed the appeal and affirmed the trial court. It ruled that the ordinance did not only regulate but involved the taking of the respondents' property without due process of law, and that although procedural due process was observed in enacting the ordinance, substantive due process was not. Aggrieved, the petitioners elevated the matter to the Supreme Court by petition for review on certiorari under Rule 45.

Facts

St. Scholastica's College owns four parcels of land in Marikina Heights, covered by Transfer Certificate Title No. 91537, with a total area of 56,306.80 square meters. Within the property are St. Scholastica's Academy-Marikina, the residence of the sisters of the Benedictine Order, the formation house of the novices, and the retirement house for the elderly sisters. The property is enclosed by a tall concrete perimeter fence built about thirty years earlier, and abutting the fence along West Drive are buildings, facilities, and other improvements.

On September 30, 1994, the Sangguniang Panlungsod of Marikina enacted Ordinance No. 192, regulating the construction of fences and walls. It was amended in 1995 and 1998. Section 3.1 requires that fences on the front yard be no more than one meter in height, and that fences in excess of one meter be of an open fence type, at least eighty percent see-through. Section 5 provides that in no case shall walls and fences be built within the five-meter parking area allowance located between the front monument line and the building line of commercial and industrial establishments and educational and religious institutions. Section 7 gave educational institutions five years to conform.

On April 2, 2000, the City Government of Marikina sent the respondents a letter ordering them to demolish and replace the fence to make it eighty percent see-through and to move it back about six meters to provide parking space. The respondents asked for an extension, but the City insisted on enforcement. The respondents then filed the petition for prohibition, arguing that compliance would cost them at least 1,808.34 square meters along West Drive and at least 1,954.02 square meters along East Drive, and would destroy the garbage house, covered walk, electric house, storage house, comfort rooms, guards' room, guards' post, waiting areas, the Blessed Virgin Shrine, the physical education area, and the multi-purpose hall. The City countered that the ordinance was a valid exercise of police power.

Issues

• Whether or not Sections 3.1 and 5 of Ordinance No. 192 are valid exercises of police power by the City Government of Marikina.
• Whether or not the five-meter setback requirement in Section 5 amounts to a taking of private property for public use without just compensation, in violation of the due process clause.
• Whether or not the invalidity of Section 5 was cured by Zoning Ordinance No. 303, series of 2000.
• Whether or not the ordinance may be given retroactive application against the respondents' existing fence and structures.

Applicable Provisions

Section 9, Article III of the 1987 Constitution provides:

Private property shall not be taken for public use without just compensation.

This is the provision the Court applies in striking down the setback requirement as a taking without compensation.

Section 16 of the Local Government Code of 1991, the General Welfare Clause, is the source of the delegated police power invoked by the City. The Court describes its two branches: the general legislative power, and the police power proper, which authorizes the municipality to enact ordinances as may be necessary and proper for the health and safety, prosperity, morals, peace, good order, comfort, and convenience of the municipality and its inhabitants, and for the protection of their property.

Section 3.1 of Ordinance No. 192 provides:

Fences on the front yard shall be no more than one meter in height. Fences in excess of one meter shall be an open fence type, at least eighty percent see-through.

This is the see-through requirement whose validity the Court examines.

Section 5 of Ordinance No. 192 provides:

In no case shall walls and fences be built within the five meter parking area allowance located between the front monument line and the building line of commercial and industrial establishments and educational and religious institutions.

This is the setback requirement the Court declares invalid as an uncompensated taking.

Ruling

On the first issue, the Court holds that the ordinance must be struck down for not being reasonably necessary to accomplish the City's purpose and, more importantly, for being oppressive of private rights. Applying the rational relationship test, the Court requires a concurrence of a lawful subject and a lawful method: the interests of the public generally must require the exercise, and the means employed must be reasonably necessary and not unduly oppressive upon individuals. Lacking that concurrence, the measure is an arbitrary intrusion into private rights and a violation of the due process clause.

On the second issue, the Court agrees with the lower courts that Section 5 is invalid. The real intent of the setback was to make the parking space free for public use, not for the exclusive use of the school. The Court holds that neither the acquisition of title nor the total destruction of value is essential to taking, and that implementation of the setback would take a total of 3,762.36 square meters of private property for public use without just compensation. The Court also holds that providing a parking area has no logical connection to the goals of preventing concealment of unlawful acts and un-neighborliness, and that 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 aesthetic appearance.

On the third issue, the Court rejects the argument that Zoning Ordinance No. 303 cured the defect. That argument was raised for the first time on appeal, and a party cannot change the legal theory of the case; moreover, the two ordinances have completely different purposes and subjects, so Ordinance No. 303 cannot cure Section 5.

On the fourth issue, the Court holds that the retroactive application of the ordinance cannot impair the respondents' vested substantive rights over the perimeter walls, the six-meter strips of land, and the improvements that would be destroyed.

Doctrine

A local ordinance enacted under the police power is valid only if it satisfies two requisites: the interests of the public generally require its exercise, and the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. There must be a concurrence of a lawful subject and a lawful method; failing that, the measure is an arbitrary intrusion into private rights and violates the due process clause.

Police power regulates; it does not take. When an ordinance substantially divests an owner of the beneficial use of private property, it amounts to an exercise of eminent domain and requires just compensation under Section 9, Article III of the Constitution. Neither the acquisition of title nor the total destruction of value is essential to taking.

Aesthetic purposes alone cannot justify the permanent deprivation of the beneficial use of property under the guise of police power. And a party cannot raise a new legal theory for the first time on appeal; the case must be reviewed on the same theory on which it was heard and decided below.

Disposition

The petition was denied and the decision of the Court of Appeals was affirmed; Sections 3.1 and 5 of Ordinance No. 192 were declared invalid, and the City was permanently enjoined from enforcing the ordinance against the respondents' property.

Remember This

Memorize the twin requisites of a valid police power measure — a lawful subject and a lawful method, with means reasonably necessary and not unduly oppressive — because that formula decides most ordinance cases. Examiners use this case to test the boundary between police power and eminent domain, and to test whether aesthetics alone can justify a taking.