Lex Rex Ph

Fernando v. St. Scholastica’s College Digest

“Unreasonable Ordinance”

Fernando v. St. Scholastica’s College
GR Number 161107. March 12, 2013

Complete Names of Parties
Hon. Ma. Lourdes Fernando, in her capacity as Mayor of Marikina, Chief of Permit Division, City Engineer, et. al,  petitionersvs.St. Scholastica’s College and SSA-Marikina, respondents

City of Marikina FILED a petition against SSA-Marikina/SSC on the grounds that their ordained city ordinance no. 192 that regulates walls and fences is a valid exercise of police power and protection of public safety.

The RELIEFS sought: That the standard height for fences or walls under section 3, and parking areas under section 5 of the enacted C.O. 192 be declared valid and imposed.


  • SSC and SSA Marikina own four parcels of land located in Marikina Heights. The property is enclosed in a tall concrete perimeter fence built some 30 years ago (1980’s).
  • Petitioners enacted City Ordinance 192 (Sept 1994) which primarily aims to regulate the construction of fences and walls within Marikina.
    • Reasons cited:
      • Public Safety. “High fences protected burglars from being seen from outside. High fences are a problem.”
      • Empowered by LGC of 1991
      • Accelerate development, improve modern design
      • Cure the defect of Nat. Building Code
      • Low fences promote beautiful environment.
      • High walls prevent neighbors to communicate
    • Provision:
      • Section 3 – fences on the front yard must be no more than 1 meter high, the excess must be 80% see-through
      • Section 5 – there must be no walls and fences within 5 meters from monument line including educational and religious institutions.
      • Educational inst. have 5 years to conform
      • Penalty: demolition of non-conforming walls at the owner’s expense
  • April 2000, Marikina ordered SSC/SSA to demolish and replace their fence with 80% see through, and move back around 6 meters.

Who filed to RTC: SSC/SSA

Valid exercise of police power
It’s for public safety and prosperity
Contravenes Article III Section 1 of Consti

Tantamount to appropriation without due process o flaw

High walls actually protected them for many years

THE RTC RULED: Favored St. Scholastica, Marikina to desist; SSA may file an action for expropriate.

  • (1) It is expropriation already under the guise of police power;
  • (2) SSA is already providing sufficient parking;
  • (3) See-through fence will violate right to privacy;
  • (4) No basis that higher fences are threats to security;
  • (5) Beautification should be used to impair substantive rights;
  • (6) Ordinance is not curative of Building Code because when the walls were built they were legal.

Who filed to CA: Marikina
The COURT OF APPEALS ruled: Affirmed RTC decision

  • (1) CO 192 does not regulate noxious, but is considered taking for public use.
  • (2) Failure to attend meetings for Marikina residents does not mean waiver of their right to question the ordinance
  • (3) 5 meter setback is not a legal easement, but a guise for public use
  • (4) Failed to point out the irregularity with National Building Code

ISSUE 1: Are sections 3.1 and 5 of CO 192 valid exercises of police power? No.

(1) Fails two tests – tests to determine if ordinance is valid (White light vs. Manila)

a. Reasonable relationship test

  1. Lawful subject (Public, not private, interest)
  2. If fail, it is tantamount to arbitrary intrusion of private rights.
  3. Lawful means – means is reasonable o accomplish purpose. Not oppressive.

b. Strict scrutiny test

(2) Real intent of the 5 meter setback requirement is not public welfare but taking of property for public use.

(3) 80% “See through” walls have no logical connection to safety.

  • May actually tempt criminals and burglars to go inside

(4) “Beautification” ratiocination is unreasonable and oppressive to private property. 1 meter walls” have no connect to beauty

Lesson: Real Property-has protection against encroachments-compensation

Are LGUs authorized to enact laws?

Yes, LGC empowers LGUS to enact ordinances but these must not be repugnant to law, safety, property.

Is the assailed ordinance curative of the National Building Code? No

Insufficiently pointed out the deficiencies of the parking provisions of the NBC.

Ponent: Mendoza

SUPREME COURT RULING: Marikina’s petition denied. RTC affirmed but modified as to specifying the unconstitutional provisions of City Ordinance 192. (Sections 3.1 and 5)

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