Newark Landlord Association v. City of Newark

• Decision Date: 17 November 2003
• Docket Number: C.A. No. 17583-NC.
• Parties: NEWARK LANDLORD ASSOCIATION, a corporation of the State of Delaware, JOHN BAUSCHER, EARLE F. ANDERSON, JR., ROBERT BRUNER, JOHN REDDEN, ROSANE M. CORULLON, BRUCE HARVEY, and SUSAN HEAGY, Plaintiffs, v. CITY OF NEWARK, Defendant.
• Court: Court of Chancery of Delaware

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NEWARK LANDLORD ASSOCIATION, a corporation of the State of Delaware, JOHN BAUSCHER, EARLE F. ANDERSON, JR., ROBERT BRUNER, JOHN REDDEN, ROSANE M. CORULLON, BRUCE HARVEY, and SUSAN HEAGY, Plaintiffs, v. CITY OF NEWARK, Defendant.

C.A. No. 17583-NC.

Court of Chancery of Delaware, New Castle County.

Date Submitted: July 16, 2003.

Date Decided: November 17, 2003.

Arthur G. Connolly, Jr., Esquire, M. Edward Danberg, Esquire and Max B. Walton, Esquire of Connolly Bove Lodge & Hutz LLP, Wilmington, Delaware, Attorneys for Plaintiffs.

Kevin J. Connors, Esquire of Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware, Attorney for Defendant.

MEMORANDUM OPINION

NOBLE, Vice Chancellor

I. Introduction

By memorandum opinion, dated June 13, 2003,¹ the Court concluded that two ordinances of Defendant City of Newark (the "City") regulating student housing conflict with state law. Specifically, the Court found that City Ordinance 99-14 ("99-14") discriminated on the basis of marital status in violation of the Delaware Fair Housing Act² (the "DFHA") and that City Ordinance 99-10 ("99-10") was unenforceable because it vitiated certain procedural provisions of the Delaware Residential Landlord-Tenant Code.³ Plaintiffs are landlords to students within the City and the landlords' representative association.

The parties now address the question of severability, an issue expressly reserved in NLA I.⁴ Although the parties agree that the contested language of 99-10 may not be severed, they differ as to the severability of 99-14. The City claims that, by striking the offending language of the ordinance, the discriminatory effect will be eliminated, while leaving intact the intent of the City Council. The Plaintiffs, on the other hand, argue that it is not severable because removing the offending language would broaden the scope of the ordinance beyond the legislative intent.

II. Background⁵

The City, through 99-14, sought to impose various housing or zoning restrictions on certain student rental units through a new classification known as the "Student Home" which was defined as:

A living arrangement in a single-family detached dwelling comprised of post-secondary students, unrelated by blood, marriage, or legal adoption attending or about to attend a college or university or who are on a semester, winter, or summer break from studies at a college or university, or any combination of such persons. Student homes shall not include RM zoning-permitted boarding houses, rooming houses, fraternities, and sororities; nor shall they include the taking of nonstudent nontransient boarders or roomers in any residence district; nor shall they include dwellings with one occupant only. . . .⁶

In NLA I, the Court concluded that the definition of a living arrangement as "a single-family detached dwelling comprised of post-secondary students, unrelated by ... marriage" operated, in conjunction with other provisions of the City's zoning code, to discriminate on the basis of marital status and, thus, constituted a discriminatory housing practice under the DFHA. The City now contends, and the Plaintiffs dispute, that 99-14's infirmities may be cured by excising "marriage," in order that the restrictions resulting from 99-14 would apply not just to unmarried students but, instead, to all students, whether married or not.

III. Analysis

A. Legislative Intent

In Delaware, ordinances "enjoy the same presumption of validity as statutes and will not be declared void except on unescapable grounds."⁷ When an ordinance or statute faces constitutional or statutory challenges, a Court may preserve its valid portions if the offending language can lawfully be severed.⁸ The reason for this is that "`[a] court should refrain from invalidating more of a statute than is necessary. . .."'⁹

The general rule for severability has been articulated by the United States Supreme Court: "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law."¹⁰ The basic inquiry for severability, accordingly, is "whether the statute will function in a manner consistent with the intent of Congress."¹¹

As in the federal courts, the issue of severability in Delaware is governed by the legislative intent behind the statute or ordinance if it can be ascertained with reasonable certainty.¹² This analysis also requires that two additional questions be answered in the affirmative in order for the Court to sever the unlawful portion:

1. Is the unobjectionable part, standing alone, capable of enforcement?

2. Did the legislature intend the objectionable part to stand alone in case the other part should fall?¹³

Severability will not be deemed appropriate if the unconstitutional (or otherwise unenforceable) part of a statute or ordinance is so connected with the other portions that they are mutually dependent and complementary.¹⁴ In such a case the reasonable conclusion is that the legislative body must have intended all portions of the statute to rise and fall together.¹⁵ The valid segment of the statute or ordinance may stand alone, however, when severance of the invalid provision results in "a residual component having separate purpose and independent legislative significance."¹⁶

The dominant purpose of 99-14 is clear. The City Council wished to limit the availability of rental housing for students, except in certain specified areas, in order to address various problems resulting from disorderly student behavior. While choosing to limit students' housing options, the City Council made some very specific exclusions — those students related by blood or adoption, and married students. The City Council's reasons for exempting married students have not been developed in the record.¹⁷ That the exclusion for married students violated the DFHA does not necessarily mean that it can now be severed from the ordinance and the law made applicable to married students. This would violate the will of the City Council as evidenced by its clearly expressed decision to exempt married students.¹⁸ It is difficult to see how a provision in a law excluding certain persons from its reach is not a portion of the law that was intended to rise and fall with the rest of the law.

This conclusion is in accord with the approach of most other courts that have considered legislative enactments containing invalid limitations or exceptions — they have struck down the entire act instead of merely severing the offending portion.¹⁹ The general rule has been framed:

Where an exception, exemption, proviso, or any clause which limits the scope of an act's applicability is found to be invalid, the entire act may be void on the theory that by striking out the invalid exception the scope of the act has been widened and therefore cannot possibly represent the legislative intent. To extend the scope of an act's operation by invalidating a provision of limitation while allowing the remainder to continue in effect invites criticism on the ground that it amounts to judicial legislation.²⁰

Similarly, the Maryland Court of Appeals formulated the standard as follows:

[W]hen the General Assembly enacts a prohibition with an excepted class that is subsequently found to be constitutionally infirm, ordinarily it will not be presumed that the General Assembly would have enacted the prohibition without the exception. Such a presumption would extend the prohibition to a class of persons whom the General Assembly clearly intended should not be reached.²¹

With these general rules in mind, the Court concludes that 99-14 cannot be severed as the City seeks here. The express exclusion of married students from the ordinance's reach is a clear manifestation of legislative intent. To hold otherwise would be to expand the scope of 99-14 beyond the City Council's intent when it enacted the ordinance. While the reasons the legislative body chose to exclude married students may not be clear, the Court will not override the express choice to exclude them and expand the scope of the ordinance by severing this unlawful exclusion from the rest of the ordinance.

The City relies upon Equitable Life Assurance Society of the United States v. Murphy,²² which invalidated an exemption to a municipal real estate transfer tax, as an example of a finding of severability that increased the scope of the invalid ordinance. Transfers of "real estate corporations" were subject to real estate transfer tax. The legislative exemption from the transfer tax where less than one percent of the ownership of the real estate corporation was transferred was deemed to violate the constitutional mandate of uniformity in the imposition of taxes. The Court concluded that the exclusion could be stricken from the ordinance with the result that small transfers, which had previously been exempt, would thereafter be subject to the transfer tax. In substance, the tax was then assessed on a broader basis as a result of the Court's holding that the offending provision was severable. The Court concluded that the overriding legislative intent was preservation of the transfer tax revenue stream and that exemption for de minimis, 1% transfers did not reflect any particular concern of the legislative body to provide special protection for those transfers. In contrast here, the City Council chose to exclude married students from the reach of 99-14 as the product of an apparent policy judgment that imposing the burdens on married students was not justified.

Thus, as set forth above, the Court concludes that 99-14 may not be severed because, if the offending language were removed, the remaining portion would impose new and significant burdens on the housing choices available to married students, a group to which the City Council intended to award special status.

B. The Severability Provision

The City's last...