When Police Power Oversteps: The Marikina Fence Ordinance and Property Rights

The Supreme Court's 2013 ruling in Fernando v. St. Scholastica's College (G.R. No. 161107) provides a clear lesson for local governments: the power to regulate private property has constitutional limits. When Marikina City ordered a school to tear down its concrete perimeter wall, replace it with an 80% see-through fence, and move it back six meters to create public parking, the Court said no. The ordinance, enacted under the banner of public welfare, was an unconstitutional intrusion into private property rights.

The Facts of the Case

St. Scholastica's College owned a 56,306.80-square-meter property in Marikina Heights, enclosed by a tall concrete fence built some thirty years earlier. The property housed the school, the residence of Benedictine sisters, a novitiate formation house, and a retirement home for elderly nuns.

In 1994, the Sangguniang Panlungsod of Marikina enacted Ordinance No. 192, regulating fence construction. The ordinance required front-yard fences to be no more than one meter high, with any taller fence needing to be at least 80% see-through. It also prohibited walls and fences within a five-meter parking allowance along streets for commercial, industrial, educational, and religious institutions.

In April 2000, city officials ordered the school to demolish its wall, build an 80% see-through fence, and move it back about six meters. Compliance would have cost the school at least 1,808.34 square meters along West Drive and 1,954.02 square meters along East Drive—roughly P18.8 million in land value—plus the destruction of a garbage house, covered walk, electric house, storage rooms, guard posts, waiting areas, a shrine, a P.E. area, and a multi-purpose hall.

The Issue

Was Ordinance No. 192 a valid exercise of police power, or did it amount to an unconstitutional taking of private property without just compensation?

The Ruling

The Supreme Court struck down Sections 3.1 and 5 of the ordinance. Applying the rational relationship test, the Court held that a valid police power measure requires both a lawful subject and a lawful method: the means employed must be reasonably necessary for the purpose and not unduly oppressive upon individuals.

The setback requirement. Section 5, requiring the five-meter setback for parking, failed this test. The Court found that the real intent was to make the parking space free for public use. Under Section 9, Article III of the 1987 Constitution, private property cannot be taken for public use without just compensation. The Court noted that neither acquisition of title nor total destruction of value is essential to a "taking"—the substantial deprivation of beneficial use suffices. Since the requirement would divest the school of 3,762.36 square meters for public parking, it was an exercise of eminent domain disguised as police power.

The see-through fence. Section 3.1 also failed. The Court found no evidence that an 80% see-through fence deters crime better than a solid wall—indeed, exposed premises might tempt criminals. Beautification alone cannot justify infringing private rights, and the Court could not see how a see-through fence fosters neighborliness. Critically, the Court held that requiring the exposure of the property violated the respondents' right to privacy, a fundamental right protected by the Bill of Rights. The property included the residence of the Benedictine nuns, who were entitled to be let alone.

Retroactivity. The Court also rejected the argument that the ordinance was a curative statute that could apply retroactively. Curative statutes validate acts that were invalid under existing law; they do not add new requirements to fill gaps in other legislation.

Practical Takeaways

• Police power has limits. Local governments may regulate property for public welfare, but the means must be reasonably necessary for the purpose and not oppressive. An ordinance that destroys beneficial use of property for aesthetic reasons crosses the line into an unconstitutional taking.
• Eminent domain requires just compensation. If a regulation effectively takes private property for public use—even without transferring title—the government must pay just compensation. Local governments cannot use police power to evade this constitutional duty.
• Privacy is a constitutional shield. Government regulations that expose private residences to public view may violate the right to privacy, particularly where religious communities or families reside.
• New theories cannot be raised on appeal. The city's attempt to rely on a later zoning ordinance, raised for the first time before the Supreme Court, was rejected. Legal arguments must be presented at the trial court level.
• Valid parts of an ordinance may survive. The Court emphasized that where one part of a statute is void, the valid portion may stand if separable. Only Sections 3.1 and 5 were struck down.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.