Mears v. Town of Oxford

• Decision Date: 07 September 1982
• Docket Number: No. 1542,1542
• Parties: John H. MEARS, Jr. v. TOWN OF OXFORD.
• Court: Court of Special Appeals of Maryland

Page 407

52 Md.App. 407

449 A.2d 1165

John H. MEARS, Jr. v. TOWN OF OXFORD.

No. 1542.

Court of Special Appeals of Maryland.

Sept. 7, 1982.

Warren K. Rich, Baltimore, with whom were Stephen P. Kling, Niles, Barton & Wilmer, Baltimore, on the brief, for appellant.

David R. Thompson and Thomas T. Alspach, Annapolis, with whom were Goldsborough, Franch & Collett, Annapolis, on the brief, for appellee.

Argued before GILBERT, C.J., and MacDANIEL and MOORE, JJ.

MOORE, Judge.

This appeal tests the validity of an ordinance that established a Board of Port Wardens, ¹ pursuant to Art. 23A § 2(23A), Md. Ann. Code (1981 Repl. Vol.), in the historic and picturesque town of Oxford, Maryland. The appellant urges error by the Circuit Court for Talbot County (Clark, J.) in:

1) failing to find that Ordinance 165, which regulates wharf construction in municipal waters, was an abuse of police power as applied to him;

2) holding that Section 3, Clause 3, unconstitutionally limited commercial marina expansion, but was severable from the rest of Ordinance 165; and

3) upholding the validity of Ordinance 165 on a motion for summary judgment.

If none of these arguments prevails, appellant contends that the ordinance still cannot properly be applied to his proposed marina expansion.

We find that Ordinance 165 is a valid exercise of legislative power by the municipal government of Oxford, that the offending clause 3 is severable, that summary judgment was proper, and that appellant's proposed expansion is subject to the regulatory powers of the Board of Port Wardens. Accordingly, for the reasons stated herein, we shall affirm.

I

Appellant, John H. Mears, Jr., purchased the marina, called Mears Yacht Haven, in March 1978. The property is located in Town Creek at Oxford, Talbot County, and is within a "C-3 Maritime Commercial District." The marina consisted of 80 spaces for mooring boats, known as "slips," plus storage and parking areas. In April 1978, Mr. Mears applied to the U.S. Army Corps of Engineers for permission to build 88 additional slips. ² After some informal discussion with Oxford planning officials, Mr. Mears submitted a second scaled-down plan for 47 slips in October 1978. The next month, the Town Commissioners voted to oppose the revised application and sent notice of their disapproval to the Corps. Undaunted and still anxious to compromise, Mr. Mears tried again; he submitted another revised plan for 38 slips to the Corps. On April 25, 1979, the Town Commissioners voted to oppose this revision. Sensing that the Commissioners would not favor any expansion, Mr. Mears amended his fourth application to 68 new slips, which was also opposed by the Commissioners. ³

On September 29, 1979, the Commissioners adopted an emergency moratorium on all marina expansion for 10 months. On October 14, 1979, the Commissioners adopted Ordinance 165, which tracks the language of Art. 23A § 2(23A) (Enumeration of express powers--Port Wardens) except for clause 3; it prohibited any expansion of a commercial marina beyond a line formed by existing structures. ⁴

Mr. Mears challenged the constitutionality of this provision and Ordinance 165 in a petition for declaratory judgment, filed on March 26, 1980. The town of Oxford demurred on the ground that Mr. Mears had not applied for any permit pursuant to the town's zoning laws or Ordinance 165 and, thus, had not exhausted administrative remedies. The demurrer was overruled on June 19, 1980. Subsequently, both sides filed motions for summary judgment. ⁵

After two hearings, the court ruled on August 21, 1981, that clause 3 was "an unconstitutional exercise of the police power in that it is so vague as to violate [appellant's] right to due process of law and is so arbitrary as to result in an invidious discrimination, all in violation of the Fourteenth Amendment to the United States Constitution."

The court also held that clause 3 was severable, leaving Ordinance 165 intact and valid, and granted summary judgment to the town of Oxford on Counts I through VI and XI of the declaration. ⁶ Only Counts I, relating to substantive due process, and II, relating to "special laws" are contested on appeal, as well as the issue of severability.

II

Neither party challenges the court's ruling that Section 3, Clause 3, of Ordinance 165 is unconstitutional. From appellant's point of view, however, that clause cannot be severed because it constitutes the "dominant aim of the whole statute" Mayor of Baltimore v. A. S. Abell Co., 218 Md. 273, 290, 145 A.2d 111 (1958), in that the Commissioners would not have enacted the whole if they had known clause 3 was invalid. Board of Public Works v. Baltimore County, 288 Md. 678, 683, 421 A.2d 588 (1980). Thus, appellant urges, the whole intent of enacting Ordinance 165 was to prevent Mr. Mears from expanding his marina, ⁷ not to set up a rational scheme for management of Town Creek.

The plain language of Ordinance 165 ⁸ belies this factual argument. As Judge Clark pointed out in his opinion below, the Board of Port Wardens has power to "regulate the placement, erection, or construction of structures or other barriers within or on the waters of the municipality," taking into account the effects this development may have on those waters. Through the ordinance the town would gain control over the uses of one of the town's major assets. Thus, the board could exercise the regulatory powers delegated by the State to a municipal corporation through Art. 23 § 2 (23A).

Further, Ordinance 165 contains a severability clause, see n. 8, Section 8, which creates a presumption that any portion of a statute can be invalidated without affecting the rest. Sanza v. Maryland Board of Censors, 245 Md. 319, 338, 226 A.2d 317 (1967). The purpose of such a clause is to manifest a legislative body's intent that if any part of the enactment is declared invalid, the body would still have enacted the remainder. Casey Development Corp. v. Montgomery County, 212 Md. 138, 148, 129 A.2d 63 (1957). A severability clause should be given effect whenever the legislative intent can be carried out minus the invalid portion. Anne Arundel County v. Moushabek, 269 Md. 419, 430, 306 A.2d 517 (1973). The court must look to what would have been the intent of the legislative body if it had known that its enactment could be only partially effective. O. C. Taxpayers for Equal Rights, Inc. v. Mayor of Ocean City, 280 Md. 585, 600, 375 A.2d 541 (1977).

As the lower court observed, the fact that Mr. Mears was the only applicant for marina expansion when the ordinance was enacted indicates that his plans forcefully focused the town's attention on the scope of potential development, with its attendant consequences, of Town Creek. Judge Clark stated:

"If the intent were solely to stop Mears, the enactment of an expansion limitation like that in Section 3, Clause 3, would have been sufficient. But the fact that the town enacted the whole ordinance and appointed a Board of Port Wardens clearly indicates a motive to give the local citizens a means to affect the uses of a local public asset."

Even if Mr. Mears is the only riparian owner affected by the ordinance, that fact does not necessarily amount to a due process violation. In Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962), the Court rejected a due process challenge to a zoning ordinance that prohibited the further operation of a gravel pit in Hempstead, Long Island, thereby depriving the owner of the property's most beneficial use. Even though the ordinance seemed aimed solely at the appellants who ran the only gravel pit operation in the town, the ordinance was upheld as a proper exercise of the police power. Id. at 596, 82 S.Ct. at 991. The Court stated: "Indulging in the usual presumption of constitutionality, we find no indication that the prohibitory effect of [the ordinance] is sufficient to render it an unconstitutional taking...." Id. at 594, 82 S.Ct. at 990. See Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).

Appellant argues that since Section 3, Clause 3, was the only portion of Ordinance 165 not copied verbatim from Art. 23A § 2 (23A), the "unavoidable inference" is that the Town's only purpose in creating the port wardens was to establish a mechanism to stop Mr. Mears' expansion. Further, the Town had the right to create a Board of Port Wardens for decades, but never did so until Mr. Mears came along. Thus, the Commissioners would not have enacted Ordinance 165 if they had known clause 3 was invalid because their "personal biases" and the absence of any supporting evidence that expansion would harm Town Creek belie any intent of harbor management, according to appellant.

However, an equally fair inference is that the Commissioners were trying to set up a "Maginot Line," in Town Creek to prevent any channel-ward expansion and preserve the existing "open space" for the use of the public. See n. 3, supra. Clause 3, although void for vagueness, is in harmony with the intent of the ordinance and does not negate "the dominant aim of the whole statute." Abell, supra, 218 Md. at 290, 145 A.2d 111.

III

Absent the offending Clause 3, Ordinance 165 must still pass constitutional muster. Appellant argues that the ordinance is an improper exercise of police power because its enactment (1) was motivated by a plebiscite of protest, (2) was not a "rational action reasonably related to the advancement of the general welfare," and (3) constituted impermissible and improper special legislation.

First, appellant fails to distinguish between comprehensive municipal legislation, which treats all property owners alike, and decisions that restrict or expand the property rights of specific individuals or the permitted uses of specific parcels of land. The distinction was delineated in Benner v. Tribbitt, 190 Md. 6, 20, 57 A.2d 346 (1948):

"On purely public or political questions regarding...