Opinion
Docket No. 78-3799.
Decided December 6, 1979.
McLellan, Schlaybaugh Whitbeck (by Rex E. Schlaybaugh, Jr., and Stephen D. Winter), for plaintiff.
Baker, Durst, Marr Nelson, for defendant.
Defendant City of Adrian issued to plaintiff's predecessor in interest a special use permit to authorize construction and operation of a mobile home park. Plaintiff initiated suit seeking a declaration that § 27 of the special use permit was void and an injunction permanently to restrain enforcement of said section. The lower court denied the requested relief, but did modify the section, and plaintiff appeals as of right.
Initially, we note that this matter deals not with a zoning ordinance, but rather with a special use permit issued in accordance with the ordinance. Despite any technical similarities between the two, we apply principles of statutory construction to the special use permit as if it were strictly an ordinance. Section 27 states:
"No person under the age of 50 years shall be permitted to occupy any mobile home in this park as a resident. No children shall be permitted in the park except on visitation for a period of no more than one month in any calendar year."
Generally speaking a presumption of constitutionality favors the validity of an ordinance. Plaintiff has the burden of proving that the use permit bears no substantial relationship to the public welfare. If such relationship is debatable then the legislative judgment must be accepted. Grocers Dairy Co v Dep't of Agriculture Director, 377 Mich. 71; 138 N.W.2d 767 (1966). Furthermore, an ordinance must be effectuated as written when it is clear and unambiguous. It is subject to judicial construction or interpretation only when it is unclear and susceptible of different meanings. If the court finds an ordinance or portions thereof to be unconstitutional it has the power to strike it down or sever the invalid portions. It does not have the power to redraft a statute; that is the province of the Legislature.
Plaintiff contends: that § 27 is an arbitrary, unreasonable and capricious exercise of the zoning power; that in attempting to regulate which family members may live together, it constitutes a substantial intrusion into fundamental rights of individuals to privacy, marriage and procreation; that the impact of this invasion is not outweighed by any asserted, compelling state interest and, accordingly, § 27 must be determined to be unconstitutional as offensive to constitutional guarantees of due process; and that the trial court erred by modifying rather than severing the provision.
The city contends that there was not a significant interference with constitutional rights and that the 50-plus provision bears a rational relationship to the legitimate government interest of providing housing for senior citizens. In addition the city argues that the court intended the objected-to portion of § 27 to be severed, not redrafted.
If possible, an ordinance must be construed in such a way as to render it valid, not invalid. Where a court strikes down parts of an ordinance, it must declare the entire ordinance to be of no effect unless the invalid section can be severed from the rest of the ordinance and still leave it complete and operative. Orion Twp v Weber, 83 Mich. App. 712, 718-719; 269 N.W.2d 275 (1978). The trial judge acknowledged that one of the basic questions of law involved related to the validity of the remainder of the special use permit should § 27 be declared invalid. In the body of his opinion he stated that the age 50 provision of § 27 of the special use permit was reasonably related to the government's interest in the public welfare except as to requiring both spouses to be 50 years of age.
In its opinion the lower court held:
"Section 27 of the Supplemental Use Permit for Sterling Mobile Home Park is unconstitutional in part as being an unreasonable exercise of the zoning power, if interpreted to exclude persons as residents where one spouse is 50 years of age or more, but the other is not. Accordingly Section 27 is to be interpreted as permitting married couples to be residents, if either or both spouses is 50 years of age or more, and Section 27 is to be so administered and is modified accordingly."
We are in agreement with the lower court that the language of § 27 as written is unconstitutional in part by excluding residents where one spouse is 50 years of age or more but the other is not. Nevertheless, judicial construction of a statute or ordinance is inappropriate where the language of the statute is unambiguous. Oakland County Prosecutor v 46th District Judge, 76 Mich. App. 318; 256 N.W.2d 776 (1977). As the Supreme Court stated in The Raven, Inc v City of Southfield, 399 Mich. 853 (1977), adopting the dissenting opinion of Chief Judge DANHOF at 69 Mich. App. 696, 702; 245 N.W.2d 370 (1976):
"It is axiomatic in the law that where statutory language is plain, certain and unambiguous, such language is not subject to construction by the courts."
The trial judge emphasized that he intended to sever the age 50 provision rather than interpret it; however, the language used in his opinion indicates a construction rather than a severance. The expressed language of § 27 states that "no person" under the age of 50 shall be permitted to reside in plaintiff's mobile home park. The provision is clear, certain and unambiguous and is therefore not a proper subject for judicial construction.
The various provisions of § 27 of the special use permit are of such a nature that the effective operation and validity of the remainder of the permit would not be negated if the § 27 provisions are stricken, therefore severance is not only permissible but required. Eastwood Park Amusement Co v Mayor of East Detroit, 325 Mich. 60; 38 N.W.2d 77 (1949). The approach taken by the lower court was an interpretation of a restriction that was clear, unambiguous and not capable of interpretation.
We reverse the lower court's judgment and remand the case for entry of a declaratory judgment that § 27 of the special use permit is void and for issuance of a permanent injunction restraining its enforcement.
The award of costs to defendants in the lower court is set aside, each party to bear their own costs, a public question being involved.