an ordinance that specifies set back requirement is invalid;tantamount to a taking of a total of 3,762.36 square meters of the respondents’ private property for public use without just compensation, in contravention to the Constitution.

White Light Corporation v. City of Manila,²⁵ discusses the test of a valid ordinance:

The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, 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.²⁶

x x x

We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.²⁷

Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series of 1994 must be struck down for not being reasonably necessary to accomplish the City’s purpose. More importantly, it is oppressive of private rights.

Under the rational relationship test, an ordinance must pass the following requisites as discussed in Social Justice Society (SJS) v. Atienza, Jr.:²⁸

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.²⁹

Lacking a concurrence of these two requisites, the police power measure shall be struck down as an arbitrary intrusion into private rights and a violation of the due process clause.³⁰

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x x x 

The petitioners cannot justify the setback by arguing that the ownership of the property will continue to remain with the respondents. 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.³² The Court is of the view that the implementation of the setback requirement would be tantamount to a taking of a total of 3,762.36 square meters of the respondents’ private property for public use without just compensation, in contravention to the Constitution.

Anent the objectives of prevention of concealment of unlawful acts and "un-neighborliness," it is obvious that providing for a parking area has no logical connection to, and is not reasonably necessary for, the accomplishment of these goals.

Regarding the beautification purpose of the setback requirement, it has long been settled 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 the aesthetic appearance of the community.³³ The Court, thus, finds Section 5 to be unreasonable and oppressive as it will substantially divest the respondents of the beneficial use of their property solely for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is invalid.
x x x 
Regarding the beautification purpose of the setback requirement, it has long been settled 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 the aesthetic appearance of the community.³³ The Court, thus, finds Section 5 to be unreasonable and oppressive as it will substantially divest the respondents of the beneficial use of their property solely for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is invalid.

EN BANC

G.R. No. 161107               March 12, 2013

HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of Marikina City, JOSEPHINE C. EVANGELIST A, in her capacity as Chief, Permit Division, Office of the City Engineer, and ALFONSO ESPIRITU, in his capacity as City Engineer of Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-MARIKINA, INC., Respondents.