Opinion
C.A. No. 17583-NC
Date Submitted: January 28, 2003
Date Decided: June 13, 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
Plaintiffs, landlords within the territorial limits of Defendant City of Newark, Delaware (the "City"), and their representative association, attack two ordinances enacted by the City regulating the location and the terms of student housing within the City. Specifically, Plaintiffs claim that the challenged ordinances directly violate the Delaware Fair Housing Act (the "DFHA") because they impermissibly discriminate on the basis of age and marital status. Additionally, Plaintiffs contend that the ordinances directly violate the antidiscrimination provisions of the Delaware Residential Landlord-Tenant Code (the "DLTC"). Finally, Plaintiffs seek to invalidate the ordinances because they compel landlord Plaintiffs to engage in behavior which violates the prohibitions against discrimination enshrined in the DFHA and the DLTC and the procedural protections granted to tenants by the DLTC. Before the Court are cross-motions for partial summary judgment addressed to Plaintiffs' challenges based upon these statutes.
6 Del. C. Ch. 46.
25 Del. C. Ch. 51-59.
I. BACKGROUND
A. The Parties and Other Interested Persons
Plaintiffs, John Bauscher ("Bauscher"), Earle F. Anderson, Jr. ("Anderson"), Robert Bruner ("Bruner"), John Redden ("Redden"), Rosane M. Corullon ("Corullon"), Bruce Harvey ("Harvey") and Susan Heagy ("Heagy") (collectively, the "Individual Plaintiffs") are landlords renting residential properties within the City. The remaining Plaintiff, the Newark Landlord Association (the "NLA") (collectively, with the Individual Plaintiffs, the "Plaintiffs"), is a Delaware corporation established in 1997 to represent: the interests of landlords owning rental properties in the City.
Though its exact membership is disputed, apparently all landlords in the City are eligible for membership in the NLA.
The City is a municipal corporation of the State of Delaware, located in New Castle County, and home to the University of Delaware (the "University"). Like many institutions of higher learning and the mumcipalities where they are located, the University and the City have long grappled with the problem of providing suitable living accommodations to the student body. Currently, approximately one-half of the students attending the University reside in off-campus housing. Presumably, many of these students reside within the City's boundaries.
The Second Amended Verified Complaint added the Mayor, City Councilpersons, and certain City officials as defendants and brought constitutional claims under 42 U.S.C. § 1983 and claims of civil conspiracy. Those claims are not before the Court.
In the fall of 2001, 15,731 full-time undergraduate students and 2,942 graduate students were enrolled in the University. App. to Opening Br. in Supp. of Cross-Mot. of Def., City of Newark, for Partial Summ. J. on State Law Claims and Answering Br. of Def., City of Newark, in Opp'n to Pls.' Mot. for Partial Summ. J. on State Law Claims ("Def.'s App.") at A00668.
However, although students are an important constituency of the City, they are not the only constituency, for also living in the City are families and others who are not college students. This proximity of students and non-students has created tensions. Most students generally conduct themselves in accordance with accepted community standards, but, at times, some students have behaved . . . well, like college students. Non-student City residents have complained about a litany of offenses, including excessive noise, littering and various drinking violations, often occurring in concert. Responding to these complaints, and after much careful study and public comment, the City sought to limit such behavior by enacting, on April 26, 1999, City Ordinance 99-10 ("99-10") and, on May 24, 1999, City Ordinance 99-14 ("99-14") (collectively, the "Ordinances").
For example, the City reviewed data and ordinances from a number of university communities, including Lower Merion Township, Pennsylvania, and State College, Pennsylvania. See id. at A00580-606. The City also analyzed data comparing arrests and City code violations to housing type. The data collected showed that, although single-family rentals represented only 971 of 8,400 housing units, or 11.8%, such housing accounted for 41.9% of police department arrests and 58.0% of housing violations in the City. The City, in conjunction with a University economist, also developed data demonstrating that single-family rental properties, as contrasted with owner-occupied properties, accounted for a disproportionate number of arrests and violations, on a per unit basis. See id. at A00655-62.
Entitled, "An Ordinance Amending Chapter 17, Housing and Property Maintenance, Code of the City of Newark, Delaware. By Adding Additional Site Specific Violations to the Two-Time Conviction/Eviction Provisions of the Code."
Entitled, "An Ordinance Amending Chapter 32, Zoning, Code of the City of Newark, Delaware, By Establishing a Definition of a Student Home and Regulations for the Same."
B. The Ordinances
99-14 regulates the location where students may live in the City by first amending Section 32-4 of the Code of the City of Newark (the "City Code") by establishing a new classification of housing: a "Student Home." 99-14, by then amending Sections 32-9, 10, 11 and 13 of the City Code forbids Student Homes within the City's RH (single-family, detached residential), RD (single-family, semi-detached residential), RM (multifamily dwellings-garden apartments) and RR (row or townhouses) zoning districts unless the rental units are in compliance with certain conditions. These conditions include, inter alia, a minimum distance between Student Homes equal to ten times the minimum lot width in the zoning district where the Student Home is located and an occupancy limit of no more than three persons.
A Student Home is 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.
City of Newark, Del., Ordinance 99-14.
Also, expressly excluded from the definition of a "Student Home" are "single-family detached, semidetached, or row dwellings located within . . . subdivisions or fronting on [specified] . . . streets" (the "exempt areas"). Thus, while in the exempt areas landlords may freely rent dwellings that would otherwise be Student Homes, the ability of landlords to rent Student Homes in non-exempt portions of the City also located within RH, RD, RM and RR zoning districts (the "non-exempt areas") is subject to various conditions. The ultimate effect of 99-14 is to create tracts of the City which are unavailable for student housing of even modest density. This separation of student and non-student City residents, however, is tempered by the City's grandfathering of nonconforming uses: nonconforming uses, such as, for example, two Student Homes located next to each other in a non-exempt area, are permitted to continue only on the condition that the nonconforming use is not discontinued for a period of one year.
Id.
City of Newark, Del., City Code § 32-51(b); see also Williams v. Board of Adjustment of City of Newark, 1993 WL 331060, at *3 (Del.Super. 1993).
99-10 also is aimed at curbing student misbehavior, but it operates through a different regulatory channel. 99-10, which amends Chapter 17-4 of the Housing and Property Maintenance portion of the City Code, creates a lease-based penal regime by requiring that all rental agreements for units subject to a City rental permit:
[P]rominently stipulate that the conviction of any renter, boarder, or roomer, who violates Chapter 20A, Noise; the occupancy limitations of this chapter and Chapter 32, Zoning; any property maintenance requirements of this chapter attributable to a renter, boarder, or roomer; any on-site violations of Chapter 22, Police Offenses, attributable to a renter, boarder, or roomer; and on-site violations of Chapter 19, Minors, Section 19-5, Minors prohibited from possessing or consuming alcoholic beverages, of this code, more than one time within a one-year period, shall result in the termination of the rental agreement, contract, lease, or sublease as it applies to all renters, boarders, and roomers at the address of the violator, and provided that all said renters, boarders, and roomers have no more than seven days to vacate the dwelling from the date of the second such conviction. Offenses at any single leased premise shall be cumulative. Convictions under this section of two different persons for violations as expressed herein whose names are on the same lease shall result in imposition of the penalties set forth in this section. This section, however, shall not prohibit the execution of a new lease between the landlord and any individual on the prior lease who was not subject to either of the two convictions that resulted in the termination of the lease. It also shall be a further violation of this section to execute a new lease at the same address with an individual who has been evicted hereunder for a period of one year from the date of eviction.
City of Newark, Del., Ordinance 99-10.
Thus, 99-10 mandates the inclusion of terms in rental agreements that, upon certain infractions by a tenant, trigger the termination of the rental agreement and the ouster within one week of all tenants occupying the rental unit under that rental agreement. Furthermore, these measures not only act upon the offender, but also terminate the rights of others who live in the same household.
These infractions parallel those complaints voiced by non-student residents of the City.
The landlord may, but need not, enter into a new rental agreement with those other tenants who were not convicted of the criminal activity.
II. CONTENTIONS
The Plaintiffs attack the Ordinances both as directly violating the DFHA and the DLTC and as compelling the Individual Plaintiffs to violate the terms of the DFHA and the DLTC in their business dealings. First, the Plaintiffs allege that 99-14 directly violates state law by impermissibly discriminating against protected classes and traits in violation of the DFHA and DLTC. They argue that 99-14 facially discriminates against unmarried students, thereby contravening the DFHA's and the DLTC's prohibitions against discrimination based upon marital status. The Plaintiffs also maintain that, by regulating post-secondary students, 99-14, though not discriminatory on its face, disproportionately affects persons aged eighteen through twenty-five and runs afoul of the DFHA's and DLTC's proscriptions against age discrimination. The Plaintiffs finally claim that, by applying only to students, 99-14 discriminates on the basis of a person's occupation in violation of the DLTC.Next, the Plaintiffs attack the validity of 99-10 as directly violating the DFHA and the DLTC. They contend that, like 99-14, 99-10 violates the DFHA and the DLTC as specifically injuring people between eighteen to twenty-five years of age, thus constituting impermissible age discrimination. Therefore, the Plaintiffs conclude that the Ordinances are invalid and unenforceable because the Ordinances directly violate the antidiscrimination provisions contained in the DFHA and the DLTC.
Furthermore, the Plaintiffs seek a declaratory judgment that the Ordinances are invalid because they force the Individual Plaintiffs to engage in behavior forbidden by the DFHA and the DLTC. The Plaintiffs contend that, in order to comply with 99-14, they must inquire into a prospective tenant's student and marital status before agreeing to rent their property. Through this questioning and any subsequent decision based on the fruits of such questioning, they believe, they will be deemed to have violated the antidiscrimination provisions of the DFHA and the DLTC.
With respect to 99-10, the Plaintiffs argue that, by conforming to its dictates, including its mandatory termination of a tenancy and subsequent ouster of offending (and non-offending) tenants, its failure to allow for notice of breach to offending tenants, its preclusion of an offending tenant from curing any breach and its wholesale disregard for the procedural and substantive terms of summary possession, they will necessarily violate the DLTC. Moreover, the Plaintiffs note that the DLTC establishes a comprehensive regime governing the rights and obligations of landlords and tenants in. the State; as such, the City ordinances, which interject a layer of municipal regulation into the landlord-tenant relationship, are completely preempted. Thus, the Plaintiffs ask the Court to declare the Ordinances invalid as conflicting with state statutes.
The City defends the Ordinances against all charges that the Ordinances are the product of discrimination or are otherwise invalid under state law. Initially, the City challenges the motives and standing of the Plaintiffs to pursue this litigation. Even if the Plaintiffs have standing to pursue their claims, the City contends that the Ordinances are enforceable. It points out that, because the Ordinances are the result of a decision-making effort based upon numerous studies and a thorough legislative process, the Ordinances should be upheld. It also observes that the Ordinances, as local government land-use regulations, are entitled to a presumption of validity.
The City disputes the Plaintiffs' claims of discrimination on any ground. It denies that any one age group has been unlawfully impacted through the regulation of students or that "student" is a recognized occupation for purposes of asserting an employment status discrimination claim under the DLTC. It additionally contends that the Plaintiffs have not made the requisite showing of discriminatory motive necessary to state a claim for discrimination and, if the Plaintiffs have accomplished as much, that it has articulated a legitimate, non-discriminatory reason for enacting the Ordinances. Finally, the City distinguishes 99-14 from impermissible zoning ordinances, noting that 99-14 merely regulates where certain people may reside and allows for the targeted persons to live elsewhere within the City. The City concludes that, for these reasons, the Plaintiffs, if properly before the Court, have not met their burden and the Ordinances are not invalid under state law.
III. ANALYSIS
A. Applicable Standard
The parties have filed cross-motions for partial summary judgment. Under Court of Chancery Rule 56, summary judgment may be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When presented with cross-motions for summary judgment, a trial court is not relieved of its obligation to deny summary judgment if a dispute of material fact exists; a trial court is to examine each motion separately and may only grant a motion for summary judgment if the standards of Court of Chancery Rule 56 are satisfied. In considering the motions, "the Court must view the evidence, and all reasonable inferences taken therefrom, in the light most favorable to the non-moving party."
Mell v. New Castle County, 2003 WL 1919331, at *3 (Del.Ch. Apr. 11, 2003).
Continental Airlines Corp. v. American Gen. Corp., 575 A.2d 1160, 1164 n. 5 (Del. 1990), cert. dismissed, 498 U.S. 953 (1990); Fasciana v. Electonic Data Sys. Corp., 2003 WL 1016987, at *4 (Del.Ch. Feb. 27, 2003).
Acro Extrusion Corp. v. Cunningham, 810 A.2d 345, 347 (Del. 2002).
B. The Plaintiffs' Right to Challenge the Ordinances
The City initially challenges the standing of the Plaintiffs to pursue this action, arguing that none of the Plaintiffs has suffered an injury in fact or is under an imminent threat of harm. The Plaintiffs assert that their right to pursue this action arises from both specific statutory grants and general principles of standing. They claim that they are injured by the Ordinances in three distinct ways. First, by restricting the universe of possible lessees, the Ordinances deprive the Individual Plaintiffs of a "stick" in their bundle of property rights. Second, if the Individual Plaintiffs are to comply with the Ordinances, they will necessarily be forced to investigate a potential lessee's marital or student status, an inquiry which they believe violates the DFHA and the DLTC. In a similar fashion, if the Individual Plaintiffs are to comply with the directives of 99-10, their conforming actions will violate the substantive and procedural rules of the DLTC. Third, the stigmatization of having their properties labeled as "Student Homes" presents a palpable injury upon which standing to challenge 99-14 may be based.
I acknowledge that it is something of a puzzle that this challenge has been brought by landlords who arguably stand to benefit from the enforcement of the Ordinances and the resulting reduction in the supply of student rental housing within the City. The optimal plaintiff class, as that portion of the City populace most directly harmed, is one comprised of unmarried students. However, the concept of standing does not require a plaintiff to be the theoretical best plaintiff; and this economic benevolence is not fatal to the landlord Plaintiffs.
By challenging the Plaintiffs' standing to pursue this action, the City disputes the Plaintiffs' right "to invoke the jurisdiction of a court to enforce a claim or redress a grievance." For statutes, as well as constitutional inquiries, the general "test of standing is whether: (1) there is a claim of injury in fact and (2) the interest sought to be protected is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee in question." This analysis, however, is subservient to more specific directives from the General Assembly, for "[w]hile the general principles of standing are helpful . . . , the real determinant is the statutory language itself." Therefore, I begin my analysis of whether the Plaintiffs may pursue their claims by examining the statutes at issue.
Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991).
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994).
Gannett Co. v. State, 565 A.2d 895, 897 (Del. 1989).
Oceanport Indus., Inc., 636 A.2d at 900.
In so doing, I will not examine the standing of each and every Plaintiff to pursue a claim. The Plaintiffs seek the invalidation of the Ordinances and have not sought damages. As long as one of the Plaintiffs has standing, the merits and outcome of the Plaintiffs' arguments may be determined. Therefore, my endeavor to evaluate the Plaintiffs' standing will cease upon concluding that one or more of the Plaintiffs has the right to pursue the claims under the statutes at issue, and no decision will be necessarily made as to the remaining Plaintiffs.
1. The Plaintiffs' Right to Challenge the Ordinances as Violating the DFHA
Under the DFHA, "any law of the State or any political subdivision thereof that purports to require or permit any action that would be a discriminatory housing practice under this chapter shall to that extent be invalid," Section 4613(a) of the DFHA permits "[am aggrieved person [to] commence a civil action in the county in which the discriminating [sic] housing practice is alleged to have occurred" to challenge an allegedly discriminatory law. The DFHA defines an "aggrieved person" as any person who:
6 Del. C. § 4617.
Id. § 4613(a)(1)(a).
a. Claims to have been injured, directly or indirectly, by a discriminatory housing practice;
b. Believes that such person will be injured, directly or indirectly, by a discriminatory housing practice that is about to occur; or
c. Is associated with a person having a protected status under this chapter and claims to have been injured, directly or indirectly, as a result of a discriminatory housing practice against such person having the protected status.
Id. § 4602(2). The DFHA defines a "person" to include, among others, "1 or more individuals, corporations, partnerships rand] associations." Id. § 4602 (19)
For the reasons that follow, I conclude that Corullon and Bauscher, as "aggrieved persons" under the DFHA, have standing to pursue their claims that 99-14 violates the DFHA. Additionally, I conclude that all of the Individual Plaintiffs similarly have standing to pursue their claims that 99-10 contravenes the DFHA.
In order to understand why the Plaintiffs may pursue their claims under the DFHA, a review of their property holdings and business activities is needed. The Individual Plaintiffs, with the exception of Heagy, each currently own property within the City which is rented under a City rental permit. Corullon is the landlord of seven single-family, detached houses, all located in non-exempt areas, of which six presently are rented to students. Bruner is the landlord of thirteen properties, all of which are located on non-exempt streets, though the identity of the renters of those properties is unknown. Bauscher is the landlord of six properties in nonexempt areas, two of which are detached, single-family homes. One of those two detached, single-family homes is currently being rented to students. All of the properties of which Redden, Anderson and Harvey are landlords are located in exempt areas.
Since the filing of this action, Heagy has sold her only rental property, which was located in an area exempt from the restrictions of 99-14, after the City revoked her City rental permit.
The record demonstrates that all the Individual Plaintiffs rent their properties under City rental permits. First, I note that the Individual Plaintiffs are required by law to do so. See Def.'s App. at A00569. Second, three of the Individual Plaintiffs averred that they operate under a City rental permit. See Bauscher Dep. at 34; Anderson Dep. at 15; Harvey Dep. at 21. Thus, I conclude that there is no dispute about whether the Individual Plaintiffs rent their respective properties under a City rental permit.
Def.'s App. at A00029-30; Letter from Kevin J. Connors, Esq. (June 5, 2003) at 1.
For purposes of this evaluation, I have accepted the City's representations of whether a given property is located in an exempt area or non-exempt area. The chart prepared by the Plaintiffs and supplemented by the City indicates whether a particular property is located on an exempt or non-exempt street. I interpret the indication that a property is on a "non-exempt street" also to denote that it is located in a zoning district subject to 99-14. See Def.'s App. at A00029-39.
"Aggrieved persons" include those who "[c]laim to have been injured, directly or indirectly, by a discriminatory housing practice." "A common idiom describes property as a `bundle of sticks' — a collection of individual rights which, in certain combinations, constitute property." The Individual Plaintiffs' bundles include the right (subject to the valid exercise of governmental police powers) to rent to anyone deemed qualified by the property owner. 99-14 prohibits landlords in the City from renting their units in non-exempt areas to students unless the several conditions are first satisfied; here, for Corullon and Bauscher, 99-14 diminishes the pool of possible applicants for their rental units in single-family detached dwellings located in the non-exempt areas. Thus, for these two Plaintiffs, one of the sticks, or a portion of one of the sticks, in their bundles has been removed by the City through its adoption of 99-14, and they may challenge the City's enactment of 99-14 as a direct violation of the DFHA.
United States v. Craft, 535 U.S. 274, 278 (2002); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982); MacArtor v. Graylyn Crest III Swim Club, Inc., 187 A.2d 417, 419 (Del.Ch. 1963).
This form of economic injury has been recognized to confer standing in the federal arena. The federal equivalent of the DFHA is Title VIII of the Civil Rights Act, 42 U.S.C. § 3601-3631 (the "Federal Fair Housing Act"). In 1974, the Federal Fair Housing Act was extended to prevent discrimination on the basis of "sex." The scope of the Federal Fair Housing Act was again expanded in 1988 to prohibit discrimination based on "familial status" and "handicap status." See City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 (1995). The Federal Fair Housing Act confers standing upon "aggrieved persons." 42 U.S.C. § 3610(a)(1)(i). This statutory grant of standing has been interpreted to be "`as broa[d] as is permitted by Article III of the Constitution.`" Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109 (1979) (alteration in original) (quoting Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972)). Accordingly, plaintiffs claiming standing to pursue a Federal Fair Housing Act claim need show, inter alia, that they suffer an injury in fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In Hamad v. Woodcrest Condominium Ass'n, 328 F.3d 224 (6th Cir. 2003), a plaintiff was determined to have standing to challenge the defendant condominium's bylaws under the Federal Fair Housing Act "because, given that [the plaintiff] could not sell her third-floor unit to a family with children, the bylaws diminished the number of potential buyers for her unit." Id. at 231.
I reject the City's argument that any injury to the Plaintiffs is in the future and is, thus, insufficient to confer standing. As previously discussed, Corullon and Bauscher, who currently rent their detached, single-family properties located in non-exempt areas to students, have suffered an injury in fact. That some relief is found under the Ordinance's non-conforming use provision does not relegate the affected landlords' injuries to mere speculation. The burdens imposed on the landlords, if they do not rent in a conforming fashion for more than one year, are a real and present limitation on their property rights.
Another possible present injury is that stigmatization experienced by landlords who rent "Student Homes," wherever located. While this presents an intriguing argument, because I have found that other bases for standing exist to allow a consideration of the merits of the claims, I do not reach this issue.
Moreover, I note that, even if the City were correct in its characterization of the timeliness of the Plaintiffs' injuries, statutory standing under the DFHA is not expressly confined to present injuries because an aggrieved person is also one who "[b]elieves that such person will be injured, directly or indirectly, by a discriminatory housing practice that is about to occur." While some limit may be imposed concerning how far in the future an injury may occur, clearly the DFHA contemplates standing for more than those persons who suffer immediate injury. As such, Corullon and Bauscher may seek a relief from 99-14 on the grounds that it requires them to engage in discriminatory behavior in contravention of the DFHA. Therefore, having been injured by what they regard as a discriminatory housing practice, Corullon and Bauscher qualify as aggrieved persons and have the right to challenge the validity of 99-14 as directly violating the DFHA and to seek a declaratory judgment that 99-14 compels them to violate the DFHA.
Furthermore, all of the Individual Plaintiffs, except Heagy, have standing to challenge 99-10 under the DFHA. 99-10 applies to the entire City, specifically, to all rental agreements for units in the City that are subject to a City rental permit. The Individual Plaintiffs, who, with the exception of Heagy, each currently rent property in the City under City rental permits will be forced to comply with the provisions of 99-10, provisions which they allege run afoul of the DFHA. As such, all of the Individual Plaintiffs, except Heagy, are directly harmed by 99-10 and are "aggrieved persons" under Section 4602 of the DFHA. Thus, at least one Plaintiff has standing to challenge each of the Ordinances as violating the DFHA under each of the various theories asserted.
The City points out, citing the depositions of Individual Plaintiffs, that several of the Individual Plaintiffs neither fully comprehend how the Ordinances function, nor conform their practices to the Ordinances' dictates. These assertions are not relevant to the task of determining the Plaintiffs' rights to pursue this action.
2. The Plaintiffs' Right to Challenge the Ordinances as Violating DLTC
The City also challenges the Plaintiffs' standing to pursue their claims that the Ordinances violate the DLTC. The Plaintiffs contend that 99-14 directly violates the age and occupation antidiscrimination provisions of the DLTC. They additionally argue that 99-10 transgresses the DLTC by discriminating on the basis of age. Moreover, the Plaintiffs maintain that the Ordinances compel the landlords to violate the tenant-protective processes established by, and the substantive provisions of, the DLTC. Because the Plaintiffs have failed to demonstrate that the DLTC confers, through a statutory grant of standing, the right to challenge the Ordinances as directly violating its antidiscrimination provisions, I turn to the Plaintiffs' other argument that the Ordinances compel the Individual Plaintiffs to conduct their businesses in such a manner as to violate the terms of the DLTC.
I reject the Plaintiffs' argument that, "[b]ecause the DLTC expressly references and mimics the DFHA, Plaintiffs' Landlord-Tenant Code claims are subject to the same requirements for standing." Pls.' Reply Br. in Support of Its Mot. for Partial Summ. J. and Answering Br. in Opp'n to Def's Mot. for Partial Summ. J. at 3 n. 3 (citing 25 Del. C. § 5116). The DLTC's statutory grant of standing provides "[f]or any violation of the rental agreement or this Code, or both, by either party, the injured party shall have a right to maintain a cause of action in any court of competent civil jurisdiction." 25 Del. C. § 5117. I note that, because the City is not a party to the rental agreement, Section 5117 does not grant standing to the Plaintiffs to press their claims seeking to invalidate the Ordinances for directly violating the antidiscrimination provisions of the DLTC. This view is reinforced by subsection c of the antidiscrimination section of the DLTC:
(c) In the event of discrimination under this section, the tenant may recover damages sustained as a result of the landlord's action, including, but not limited to, reasonable expenditures necessary to obtain adequate substitute housing.Id. § 5116(c). Thus it is doubtful that the Plaintiffs have been granted by the DLTC any right to sue the City, a non-party to rental agreements entered into by the Individual Plaintiffs, for alleged direct violations of the antidiscrimination provisions of the DLTC.
Delaware's Declaratory Judgment Act provides:
Any person . . . whose rights, status or other legal relations are affected by a statute [or) municipal ordinance . . . may have determined any question of construction or validity arising under the statute [or] ordinance . . . and obtain a declaration of rights, status or other legal relations thereunder.
10 Del. C. Ch. 65.
This does not authorize Courts to render advisory opinions or to adjudicate hypothetical questions because "the courts will entertain declaratory judgment actions only where the alleged facts are such that an "actual controversy' exists and eventual litigation appears to be unavoidable." The oft-stated standards for determining whether an "actual controversy" exists are:
Leonard Loventhal Account v. Hilton Hotels Corp., 2000 WL 1528909, * 10 (Del.Ch. Oct. 10, 2000), aff'd, 780 A.2d 245 (Del. 2001).
(1) It must be a controversy involving the rights or other legal relations of the party seeking declaratory relief; (2) it must be a controversy in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claim; (3) the controversy must be between parties whose interests are real and adverse; (4) the issue involved in the controversy must be ripe for judicial determination.
Rollins Int'l, Inc. v. International Hydronics Corp., 303 A.2d 660, 662-63 (Del. 1973).
Though the parties have framed their arguments concerning the Plaintiffs' right to seek a declaratory judgment under the general principles of standing, and specifically the requirement that a plaintiff suffer an "injury-in-fact," their debate is best analyzed as whether there is a "controversy between parties whose interests are real and adverse."
I conclude that Corullon and Bauscher may challenge 99-14 as compelling discriminatory behavior prohibited by the DLTC. Furthermore, I determine that the Individual Plaintiffs may contest 99-10 under the theory that compliance with 99-10 requires the Individual Landlords to disobey the DLTC's procedural and substantive requirements. The Plaintiffs protest that, in order not to run afoul of 99-14, the Individual Plaintiffs must inquire into the student and marital status of a potential tenant, thereby contravening the antidiscrimination provisions of the DLTC. Moreover, in complying with the penal terms of 99-10, it is claimed that the Individual Plaintiffs are forced to ignore the procedural and substantive rules established in the DLTC. The afflicted parties are not mere intermeddlers, but instead, to act in conformity with the terms of the Ordinances, they must conduct themselves in a manner they believe violates state law. Persons so injured may seek judicial review in order to escape the impossible task of complying with regulatory schemes which command the undertaking of diametrically opposed courses of action. Thus, Corullon and Bauscher, in relation to 99-14, and the Individual Plaintiffs, in relation to 99-10, have a right to challenge the Ordinances on the grounds that the Ordinances impermissibly require them to contravene the DLTC. Having resolved the issues concerning the Plaintiffs' right to challenge the Ordinances, I turn to the merits of the Plaintiffs' arguments.
I note that the City has not suggested that the doctrine of exhaustion of administrative remedies is somehow pertinent. See Levinson v. Delaware Compensation Rating Bureau, Inc., 616 A.2d 1182 (Del. 1992).
Throughout the remainder of this opinion, I use the term "Plaintiffs" to refer to those Plaintiffs previously determined to have standing to pursue the claim at issue.
C. The Validity of the Ordinances
The City argues that the starting point for any evaluation of the validity of the Ordinances is that they should be respected as the product of careful study and the balancing of the competing land-use needs of its residents. In particular, regarding the question of the validity of 99-14, the City stresses that, as a zoning ordinance, 99-14 should be afforded a presumption of validity and accorded a corresponding degree of deference by the Court. It is true that municipal zoning ordinances are presumed to be valid and are afforded deference by a reviewing court. The City's retreat to this standard of review is not dispositive, though, for
Hayward v. Gaston, 542 A.2d 760, 769 (Del. 1988) ("As an attribute of governmental authority, zoning is a legislative function and is presumed to be valid unless shown to be arbitrary or capricious. The burden of rebutting the presumption of validity rests with the party challenging the zoning.") (citations omitted); Tate v. Miles, 503 A.2d 187, 191 (Del. 1986).
Mifflin Rd. Neighborhood Ass'n v. City of Dover, 1986 WL 13500, at *5 n. 1 (Del.Ch. Nov. 28, 1986).
[i]t is a necessary corollary to the relationship between the state, acting through its Legislature, and the municipal corporation that where a conflict exists between a state statute and a municipal ordinance, the statute must always prevail.
State v. Putnam, 552 A.2d 1247, 1249 (Del.Super. 1988). Similarly, zoning regulations have been invalidated if found to be in conflict with federal antidiscrimination statutes. See Potomac Group Home Corp. v. Montgomery County, Md., 823 F. Supp. 1285, 1294 (D. Md. 1993) ("Recognizing the purpose and breadth of provisions of the [Federal Fair Housing Act], courts have consistently invalidated a wide range of municipal licensing, zoning and other regulatory practices.").
I assume for purposes of my analysis that the Ordinances are the product of valid exercise of the City's powers. "[T]he question is whether the provisions of the [Ordinances], enacted pursuant to the grant of power by the General Assembly to the [City], conflict with other legislative enactments so as to preclude the application of the ordinance[s]." Therefore, I now turn to the Plaintiffs' claims that the Ordinances violate the DFHA and the DLTC.
Putnam, 552 A.2d at 1250.
1. The Validity of 99-14
The Plaintiffs attack 99-14 on several grounds. They contend that 99-14 discriminates on the basis of marital status and age, thereby violating the DFHA and the DLTC. Specifically, the Plaintiffs assert that 99-14 on its face discriminates based upon the marital status of a lessee. Furthermore, the Plaintiffs claim that 99-14 discriminates on the basis of occupation in violation of the DLTC. Accordingly, the Plaintiffs ask that the Court declare 99-14 invalid.
Responding to charges of discrimination, the City argues that "[e]ven if it can be shown that the majority of individuals who utilize rental housing in university communities are college students who fall predominantly into a certain age group or marital status, absent more and clear evidence of discrimination, the ordinances are valid." In its briefs and at oral argument, the City makes much about a perceived distinction between discriminating against a protected class and regulating where a person may reside. Accordingly, with respect to the charge of discriminating on the basis of marital status, the City contends that 99-14 is a valid exercise of the City's police power because "[u]nmarried couples who are students can live together, so long as it is in a specified student house location." Despite the City's arguments, I conclude that 99-14 is unlawful under the DFHA.
Opening Br. in Supp. of Cross-Mot. of Def., City of Newark, for Partial Summ. J. on State Law Claims and Answering Br. of Def., City of Newark, in Opp'n to Pls.' Mot. for Partial Summ. J. on State Law Claims ("Def.'s Opening Br.") at 30.
Id. at 35.
The task of interpreting a statute is essentially one of ascertaining and giving effect to legislative intent. The broad ameliorative goals of the DFHA cannot be disputed. The statute itself notes that its purpose is "to eliminate, as to housing offered to the public for sale, rent or exchange, discrimination based upon race, color, national origin, religion, creed, sex, marital status, familial status, age or handicap." The DFHA is to "be liberally construed to the end that its purposes may be accomplished and all persons may fully enjoy equal rights and access to housing for themselves and their families." When the language of a statute is unambiguous, the Court's only role is to apply the literal meaning of those words. In so doing, the words are given their common, ordinary meaning.
Coleman v. State, 729 A.2d 847, 851 (Del. 1999); Hudson Farms, Inc. v. McGrellis, 620 A.2d 215, 217 (Del. 1993).
6 Del. C. § 4601(a); see also Quaker Hill Place v. State Human Relations Comm'n, 498 A.2d 175, 181 (Del.Super. 1985) ("Saville I").
6 Del. C. § 4601(b). Achieving the desirable ends set forth is of such importance that, "in defining the scope or extent of any duty imposed by [the DFHA], . . . higher or more comprehensive obligations established by otherwise applicable federal, state or local enactments may be considered." Id.
Coleman, 729 A.2d at 851; Arnold v. Society for Sav. Bancorp., 650 A.2d 1270, 1287 (Del. 1994).
Hudson Farms, Inc., 620 A.2d at 217.
Pursuant to Section 4617 of the DFHA, "any law of the State or any political subdivision thereof that purports to require or permit any action that would be a discriminatory housing practice under this chapter shall to that extent be invalid." A "discriminatory housing practice" is "an act that is unlawful under § 4603, § 4604, § 4605, § 4606 or § 4618 of [the DFHA]." Under the DFHA, engaging in any of a number of forms of discrimination, including discrimination on the basis of "marital status" or "age," constitutes a discriminatory housing practice. Section 4603 of the DFHA provides:
Except as exempted by § 4607 of this title, it shall be unlawful:
(1) To discriminate in the sale or rental, to refuse to sell or rent, to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, national origin, religion, creed, sex, marital status, familial status, age or handicap.
(2) To discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, religion, creed, sex, marital status, familial status, age or handicap.
6 Del. C. § 4603(b)(1-2). Furthermore, the DFHA declares: "Notwithstanding the provisions enumerated in § 4619 of this title, it shall be unlawful to assist, induce, incite or coerce another person to commit any of the discriminatory housing practices prohibited by this chapter." Id. § 4606.
"Marital status" is "the legal relationship of parties as determined by the laws of marriage applicable to them or the absence of such a legal relationship." "Age," for purposes "of defining what is a discriminatory housing practice, . . means any age 18 years or older." In certain respects, the DFHA is broader in its antidiscriminatory protections than those of its federal counterpart, the Federal Fair Housing Act. Importantly, the DFHA, unlike the Federal Fair Housing Act, expressly includes "marital status" and "age" as bases for housing discrimination. Thus, in an expansion of its federal counterpart, the DFHA forbids discrimination on the basis of a person's status as married or unmarried, or on the basis of a person's age over 18 years old.
Id. § 4602(16).
Id. § 4602(1).
Compare 42 U.S.C. § 3604 with 6 Del. C. § 4603.
Delaware's Fair Housing Act is also broader in its prohibitions against discrimination on the basis of marital status and age than those of the Pennsylvania Human Relations Act. Compare 6 Del. C. § 4603 with 43 P.S. § 955(h) ("It shall be an unlawful discriminatory practice . . . for any person to: (1) Refuse to sell, lease, finance or otherwise to deny or withhold any housing accommodation or commercial property from any person because of the race, color, familial status, age, religious creed, ancestry, sex, national origin or handicap or disability of any person, prospective owner, occupant or user of such housing accommodation or commercial property"). The term "age" is defined under Pennsylvania law to include "any person forty years of age or older and shall also include any other person so protected by further amendment to the Federal Age Discrimination in Employment Act. Id. § 954(h). Furthermore, "[t]he term "familial status' means one or more individuals who have not attained the age of eighteen years being domiciled with: (1) a parent or other person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person." Id. § 954(t).
A municipal ordinance bearing a striking resemblance to 99-14, itself the product of a factual background similar to that currently before this Court, was upheld in a pair of related cases, Smith v. Lower Merion Township, 1992 WL 112247 (E.D. Pa. May 7, 1992), aff'd, 995 F.2d 219 (3d Cir. 1993), and Farley v. Zoning Hearing Bd. of Lower Merion Township, 636 A.2d 1232 (Pa.Commw. 1994). Lower Merion Township, which, like the City, is the residence of many college students, adopted a plan of zoning which regulated the location of, and established occupancy limits for, a category of housing labeled "Student Homes." A "Student Home" was defined by the Lower Merion Township ordinance as: "A living arrangement for students, unrelated by blood, marriage or legal adoption, attending or about to attend a college or university or who are on a semester or summer break from studies a [sic] college or university, or any combination of such persons." Smith, 1992 WL 112247, at *4; Farley, 636 A.2d at 1234-35. In Smith, "[t]he plaintiffs assert[ed] that the ordinance violated their constitutional rights. . ., thus falling under the statutory aegis of 42 U.S.C. § 1983 and the Fair Housing Act, 42 U.S.C. § 3601, et seq." Smith, 1992 WL 112247, at *1. The court, applying a rational basis review, denied the plaintiffs' motion for a preliminary injunction against the enforcement of the ordinance. Id. at *4. In a subsequent action, a Pennsylvania state court arrived at an equivalent outcome considering similar constitutional arguments. Farley, 636 A.2d at 1238-39.
Though the City relied upon the Lower Merion experience in both formulating, see supra note 6, and defending 99-14, see Def.'s Opening Br. at 31-33, I briefly note several differences between the actions in Smith and Farley and the one sub judice. First, of primary concern in Smith and Farley were constitutional, and not state or federal statutory law, claims. Second, even if the Smith and Farley plaintiffs had vigorously pressed claims for violations of the Federal Fair Housing Act and the Pennsylvania Human Relations Act to similar defeats, such cases would remain distinguishable based upon the noted differences between the DFHA and the narrower underlying antidiscrimination provisions of the Federal Fair Housing Act and the Pennsylvania Human Relations Act. Therefore, these companion cases are of limited utility in deciding the case at hand.
The parties have directed the Court to few decisions involving alleged violations of the DFHA. "In the absence of Delaware decisions construing this provision," I may also review "decisions construing various federal antidiscrimination statutes." A natural source of guidance, due to the similarity in structure, language and purpose between the underlying statutes, are decisions construing the provisions of the Federal Fair Housing Act. However, I am not limited to this particular line of jurisprudence.
Saville v. Quaker Hill Place, 531 A.2d 201, 203 (Del. 1987) ("Saville III").
See id. at 204.
Although such similarity exists between [ 6 Del. C. §] 4603 and Title VIII, federal case law indicates that there is considerable overlap between analysis under Title VII and analysis under other federal antidiscrimination statutes, including Title VIII. Additionally, a comprehensive body of decisional law has developed under Title VII involving analysis of the issue of whether particular evidence demonstrates an intent to discriminate.
Id. (citations omitted); see also Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997) ("We apply Title VII discrimination analysis in examining [Federal] Fair Housing Act . . . discrimination claims.").
Therefore, when helpful, I will consult these bodies of law for guidance.
Two families of discrimination claims may be brought by an aggrieved person under the DFHA. "To make out a prima facie case under Title VIII, a plaintiff can show either discriminatory treatment or discriminatory effect alone, without proof of discriminatory intent." "Disparate treatment occurs when a decision maker `simply treats some people less favorably than others because of [a protected trait].'" A claim by an aggrieved person that a statute or ordinance impermissibly discriminates on its face is a form of disparate treatment claim. Conversely, "when a decision maker's practices are facially neutral in their treatment of different groups but in fact unjustifiably disadvantage one or more groups," a claim for disparate impact exists. Hence, the Plaintiffs' arguments that 99-14 discriminates upon its face based upon the marital status of student renters are claims of disparate treatment, while the Plaintiffs' claims of age discrimination are properly treated as disparate impact claims.
Doe v. City of Butler, Pa., 892 F.2d 315, 323 (3d Cir. 1989) (citation omitted). It has also been noted that "[d]isparate treatment and disparate impact are two of four types of discrimination which commentators have identified as confronting the handicapped." Saville III, at 204.
Saville III, at 204 (alteration in original) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977)). An example of such an instance is when "an applicant is rejected based on an unlawful whim of [a] landlord." Quaker Hill Place V. Saville, 523 A.2d 947, 955 (Del.Super.) ("Saville II"), aff'd, 531 A.2d 201 (Del. 1987).
One court, in analyzing under the Federal Fair Housing Act a state statute found to be facially discriminatory, opined that "[s]ome courts have identified a third type of case [in addition to disparate treatment and disparate impact] where a challenged practice discriminates against the handicapped on its face." Larkin v. Michigan Dep't of Social Servs., 89 F.3d 285, 289 (6th Cir. 1996) (citing Potomac Group Home Corp., 823 F. Supp. at 1295; Horizon House Developmental Servs., Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 693 (E.D. Pa. 1992), aff'd mem., 995 F.2d 217 (3d Cir. 1993)). However, because other courts, notably the United States Supreme Court, treat facially discriminatory statutes as "just a type of intentional discrimination or disparate treatment," I will evaluate the claim that 99-14 discriminates on its face on the basis of marital status as a claim for disparate treatment. Larkin, 89 F.3d at 289 (citing U.A.W. v. Johnson Controls, Inc., 499 U.S. 187, 197-200 (1991); Bangerter v. Orem City Corp., 46 F.3d 1491, 1500-01 (10th Cir. 1995)).
Saville III, at 204.
The distinction between these two categories of claims is a critical one because "[t]he differences in the nature and quality of evidence required in such cases are significant." Saville II reaffirmed, and further refined, "the standards. . . applied when determining the order and allocation of the burdens of production and persuasion in private, non-class actions, Section 4603(1) discrimination cases" as set forth in Saville I. On the one hand, Saville II notes that when analyzing claims of disparate treatment, the respective burdens of proof of the parties in litigating claims of disparate treatment are measured under the test announced in the trilogy of McDonnell Douglas Corp. v. Green, Board of Trustees of Keene State College v. Sweeney, and Texas Dept. of Community Affairs v. Burdine. As described by Saville I,
Saville II, at 955.
Id. at 953 (citations omitted).
411 U.S. 792 (1973).
439 U.S. 24 (1978).
450 U.S. 248 (1981).
[t]he Courts of Delaware follow the standard established by McDonnell Douglas Corp. v. Green . . . that the complainant has the initial burden of establishing a prima facie case of discrimination. If that is done, then the burden shifts to the person charged with discrimination to articulate some legitimate, nondiscriminatory, reason for the rejection. Finally, if the respondent succeeds, the burden of going forward reverts to the complainant to prove that the stated reason was a sham.
Saville I, at 182-83. "The analysis [under the McDonnell Douglas/Burdine test] is neither rigid nor mechanized and the general requirements of proof must be flexibly tailored to the facts of each case." United States v. Town Hall Terrace Ass'n, 1997 WL 128353, at *3 (W.D.N.Y. Mar. 14, 1997).
In disparate treatment cases, "[p]roof of motive to discriminate . . . is an essential element of the complainant's case." On the other hand, the test for cases of disparate impact has evolved separately from that of the standard for deciding claims of disparate treatment. I first evaluate, under the framework of Saville IA the allegation by the Plaintiffs that 99-14 facially discriminates on the basis of marital status, resulting in the disparate treatment of a protected trait under the DFHA.
Saville II, at 955.
Saville II directed the Court to apply the test derived from Griggs v. Duke Power Co., 401 U.S. 424 (1971), in evaluating disparate impact claims. Saville II, at 955. In accordance with that methodology, Saville II noted that "[i]n [disparate impact] cases, statistical evidence without proof of motive usually is sufficient." Id.
Since the time of Griggs and Saville II, much has changed in the treatment of disparate impact claims under the Federal Fair Housing Act. As one judge summarized the evolution:
The disparate impact path begins, of course, with Griggs v. Duke Power Co. . . . Later, however, in a series of significant decisions culminating in Wards Cove Packing Co., Inc. v. Atonic, 490 U.S. 642 (1989), the Supreme Court redirected disparate impact analysis away from the principles voiced in Griggs. During this period, the Court recharacterized the relevance of a defendant's intent, shifted the burden of persuasion entirely to the plaintiff, and relaxed the employer's obligation to prove the challenged practice was a "business necessity."
After two years of intense dialogue about antidiscrimination policy approaches, much lobbying and political posturing, a presidential veto in 1990, innumerable amendments and revisions, and high level negotiations between congressional leaders and the Bush White House, Congress passed the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071, codifying certain developments and reversing others in an effort to shore up Title VII's protections for victims of discrimination.Hack v. President and Fellows of Yale College, 237 F.3d 81, 93-94 (2d Cir. 2000) (Moran, J., dissenting) (citations omitted), cert. denied, 534 U.S. 888 (2001). The ultimate outcome of this process is still being debated. This controversy, although intriguing, is not pertinent to the issues addressed by this memorandum opinion.
The Plaintiffs' contention that 99-14 facially discriminates on the basis of the affected students' marital status is a claim of disparate treatment. Accordingly, Saville II directs me to analyze the Plaintiffs' claim under the McDonnell Douglas Corp./Burdine test. Under this methodology, "the plaintiff must first make a modest showing that a prima facie housing discrimination claim exists. This burden is satisfied if a plaintiff demonstrates that the statute or ordinance at issue is facially discriminatory.
Town Hall Terrace Ass'n, 1997 WL 128353, at *3.
See Arc of N.J., Inc. v. New Jersey, 950 F. Supp. 637, 643 (D.N.J. 1996) ("A plaintiff makes out a prima facie case under Title VIII . . . by showing either: (1) intentional disparate treatment . . . ; or (2) disparate impact alone, without proof of discriminatory intent. A case of disparate treatment may be established against a public entity by demonstrating that a given legislative provision discriminates against [a protected class or trait] on its face.") (citation omitted); Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 876 F. Supp. 614, 620 (D.N.J. 1994) ("If the statute or ordinance is discriminatory on its face, then the burden is on the defendant to justify the discriminatory classification."); Horizon House Developmental Servs., Inc., 804 F. Supp. at 693-94; see also Hack, 237 F.3d at 90 (Plaintiffs failed to state a claim under the Federal Fair Housing Act "[b]ecause the complaint allege[d] neither intent to discriminate, nor a facially discriminatory policy, nor facts necessary to constitute disparate impact discrimination.").
There can be no doubt that 99-14 discriminates on its face based upon marital status. By its express terms, the operation of 99-14 turns upon the marital status of the students. A "Student Home" is "[a] living arrangement in a single-family detached dwelling comprised of post-secondary students, unrelated by blood, marriage, or legal adoption." Thus, by 99-14's express terms, post-secondary students who are married to each other are not subject to the various restrictions imposed by 99-14, but unmarried students, and the landlords who rent to them, are subject to a host of conditions if the rental unit is in a non-exempt portion of the City. This differing treatment, on the face of 99-14, constitutes facial discrimination.
99-14 (emphasis added).
See Marriott Senior Living Servs., Inc. v. Springfield Township, 78 F. Supp.2d 376, 388 (E.D. Pa. 1999) ("Thus, to establish that an ordinance is facially invalid, a plaintiff must show that the accused ordinance treats someone protected by the [Federal Fair Housing Act] in a different manner than others are treated."); Arc of N.J., Inc., 950 F. Supp. at 643 (A legislative provision discriminates on its face when it "applies different rules to the [members of a protected class] than are applied to others.").
The City strenuously argues that the Plaintiffs are unable to show any ill or impermissible motive on behalf of the City in enacting 99-14. However, while "`[p]roof of discriminatory motive is critical, . . . it can in some situations be inferred from the mere fact of differences in treatment.'" Saville III notes that "a comprehensive body of decisional law has developed under Title VII involving analysis of the issue of whether particular evidence demonstrates an intent to discriminate." The United States Supreme Court, in a Title VII case, addressed what evidence was needed to demonstrate art intent to discriminate in the context of a facially discriminatory statute:
Saville III, at 204 (quoting International Bhd. of Teamsters, 431 U.S. at 335 n. 15).
Id.
[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination. . . . The beneficence of an employer's purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under § 703(a) [of Title VII].
U.A.W. v. Johnson Controls, Inc., 499 U.S. at 199-200; see also Larkin, 89 F.3d at 290; Bangerter, 46 F.3d at 1500-01; Marriott Senior Living Servs., Inc., 78 F. Supp.2d at 388; Potomac Group Home Corp., 823 F. Supp. at 1295; Horizon House Developmental Servs., Inc., 804 F. Supp. at 694.
Thus, as explored in the jurisprudence of Title VII, and adopted in Title VIII litigation, in those instances of ordinances which facially discriminate against a protected trait, a plaintiff need not prove the malevolent motives of the legislative body. Therefore, I reject the City's contention that the failure to prove malevolent or discriminatory motive apart from the facially discriminatory ordinance is fatal to the Plaintiffs' claim, and conclude that the Plaintiffs have stated a prima facie case of discrimination on the basis of marital status.
That the Plaintiffs have stated a prima facie case does not end my inquiry. "Once [a] complainant establishes his prima facie case, the burden of production shifts to the person charged with discrimination to articulate a legitimate, non-discriminatory reason for [her discriminatory actions]." As distinguished from the burden of persuasion, the defendant, in order to satisfy this burden of production, need only produce
Saville II, at 954 (footnote omitted); see also Arc of N.J., Inc., 950 F. Supp. at 643 ("If a Title VIII plaintiff establishes that a statute or ordinance is facially discriminatory, the burden shifts to the governmental defendant to justify the disparate treatment.")
"`evidence [which] raises a genuine issue of fact as to whether it discriminated against the [plaintiff]. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for [the plaintiffs discriminatory treatment by the defendant]. The explanation must be legally sufficient to justify a judgment for the defendant. . . . Placing this burden of production on the defendant thus serves simultaneously to meet the [plaintiffs] prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the [plaintiff] will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions.'"
Saville II, at 955 (quoting Burdine, 450 U.S. at 254-56). "[T]he defendant need not persuade the court that it was actually motivated by the proffered reasons." Id. at 954-55.
The City has produced an immense record concerning the concentration of charges and arrests for the complained of activities in single-family units rented to students. This voluminous record evidences that students comprise the bulk of the offenders for the offenses complained about by non-student residents of the City. The record further demonstrates that the City relied upon this vast amount of evidence in formulating the Ordinances. The City argues that from this record, "reflect[ing] decades-long efforts to preserve single-family neighborhoods, not as a means of discriminating against others . . . [t]here is ample reason for th[e] Court to conclude that the City . . . has offered a legitimate, non-discriminatory reason for enacting the challenged Ordinances."
Br. of Def., City of Newark, in Reply to Pls.' Answering Br. in Qpp'n to Def.'s Mot. for Partial Summ. J. ("Def.'s Reply Br.") at 20-21.
The City relies upon Village of Belle Terre v. Boraas for the proposition that a legitimate, non-discriminatory reason for enacting the 99-14 is the preservation of single-family housing. In Village of Belle Terre, the Supreme Court held that "[t]he police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." Nevertheless, I reject the City's invocation of this rationale as a legitimate, non-discriminatory reason for 99-14's facial discrimination on the basis of marital status.
416 U.S. 1 (1974).
Id. at 9.
Saville II requires the City to articulate a legitimate, nondiscriminatory reason for the facial discrimination of 99-14. Village of Belle Terre might be of value were the City explaining why 99-14 is a valid exercise of its police power. However, I have assumed throughout this decision that the Ordinances are duly authorized exercises of the City's police power. The City cannot satisfy its burden by merely reiterating this justification; indeed, to allow so would render the City's burden of production illusory. Put another way, the City has failed to articulate any argument for discriminating upon the basis of marital status that raises a genuine issue of fact as to whether it discriminated against unmarried, student renters. Thus, the City has failed to articulate any legitimate, non| discriminatory reason for facially discriminating against unmarried couples. Accordingly, the City has failed to meet its burden of production under the second inquiry of the McDonnell Douglas/Burdine test.
See supra pp. 22-23.
See Bangerter, 46 F.3d at 1503 (rejecting "the district court's use of the rational relationship test to review [a city's] challenged actions").
This argument is underscored by the DFHA itself; which recognizes the validity of properly authorized single-family housing that does not offend its prohibitions against discrimination. Section 4607 of the DFHA provides:
(c) Nothing in this chapter limits the applicability of any reasonable local, state or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling as long as they are applied to all occupants and do not operate to discriminate or have the effect of discriminating on the basis of race, color, national origin, religion, creed, sex, marital status, familial status, age or handicap. Nor does any provision in this chapter regarding familial status or age apply with respect to housing for older persons as defined in § 4602(15) of this title.6 Del. C. § 4607(c); cf. City of Edmonds, 514 U.S. 725 (addressing the scope of the exemption to the Federal Fair Housing Act provided for by 42 U.S.C. § 3607(b)(1)). Ironically, the City cites this subsection of the DFHA, emphasizing the initial exemption, while failing to pay adequate heed to the ensuing qualification Def.'s Opening Br. at 39.
I also reject any argument that because the unmarried students may live elsewhere within the City, ( i.e., in exempt areas) the City is essentially free to create "student ghettoes" while violating, on the face of the operative ordinance, the terms of the DFHA. Such a novel concept has no known support in the law, nor should it.
In summary, the Plaintiffs have stated a prima facie case that 99-14 discriminates on the basis of marital status under the DFHA. The City did not satisfy its burden of production by articulating a legitimate, nondiscriminatory reason for the facial discrimination of 99-14 on the basis of marital status, and, accordingly, did not produce any evidence that raises a genuine issue of fact as to whether it unlawfully discriminated. Therefore, I conclude that 99-14, under the guise of a zoning ordinance, constitutes a discriminatory housing practice under the DFHA.
I do not address the Plaintiffs' remaining arguments that 99-14 discriminates on the basis of age or that it violates the DLTC.
2. The Validity of 99-10
The Plaintiffs challenge 99-10 on several grounds. They contend that, much like 99-14, 99-10 impermissibly discriminates based upon age. The Plaintiffs also argue that 99-10 impinges upon the exclusive jurisdiction of the DLTC by requiring that certain remedies and punitive measures be undertaken by a landlord which would violate the scheme prescribed by the DLTC. Examples of contradictory provisions provided for by 99-10 and cited by the Plaintiffs include mandatory termination of the tenancy upon certain convictions, termination of the tenancy without providing an opportunity for the offending lessee to cure, termination of the tenancy absent notice, vacation by the offending tenants within seven days, and the wholesale disregard by 99-10 for the statutory procedures for effecting summary possession. Finally, the Plaintiffs assert that any ordinance regulating the landlord-tenant relationship is preempted by the DLTC, which constitutes a comprehensive statutory scheme.
The City, in turn, disputes the Plaintiffs' allegation that 99-10 forces landlords to engage in discriminatory practices based upon age or occupation. Furthermore, the City maintains that 99-10 does not interfere with the jurisdiction of the DLTC. The City also notes that "the DLTC regulates the rights and remedies of parties and beneficiaries under an agreement to rent real property. It does not affect land-use regulation and its provisions are irrelevant to the zoning ordinances of the City." Next, the City argues that the DLTC does not preclude a landlord from terminating a lease and evicting a lessee if that lessee is convicted of engaging in illegal conduct. Finally, the City disagrees with the Plaintiffs' contention that the DLTC preempts any other regulation of the landlord-tenant relationship.
Def.'s Reply Br. at 21-22.
Initially, I reject the City's contention that the DLTC does not apply to zoning ordinances per se. 99-10 requires that rental agreements under a City rental permit contain specific provisions. If individual landlords would violate the DLTC, a state law, by including such provisions in their rental agreements, then the City is also precluded from requiring landlords to include a similarly offensive provision. To hold otherwise would negate the hierarchal relationship between state and local governments.
For these purposes, I accept, but with some skepticism, the City's position that 99-10, which amended the Housing and Property Maintenance portion of the City Code, is a zoning ordinance. See Def.'s Opening Br. at 40.
See supra note 46 and accompanying text.
At times, however, the Plaintiffs seem to assert that 99-10 may be struck down under 25 Del. C. § 5101. Section 5101(a) provides:
This Code [the DLTC] shall regulate and determine all legal rights, remedies, and obligations of all parties and beneficiaries of any rental agreement of a rental unit within this State, wherever executed. Any rental agreement, whether written or oral, shall be unenforceable insofar as the agreement or any provision thereof conflicts with any provision of this Code, and is not expressly authorized herein.
Municipal ordinances are not within the scope of 25 Del. C. § 5101(a) as this section only addresses the enforceability of "agreements" and, thus, cannot be invalidated pursuant to 25 Del. C. § 5101(a) Therefore, the enforceability of 99-10 is not governed by 25 Del. C. § 5101(a); instead, the question. is whether 99-10, a City ordinance, requires the landlords to implement a mandatory lease provision in violation of the DLTC.
Langley v. Elsmere Assocs., 1994 WL 149256, at *1 (Del.Super. Feb. 23, 1994).
Pursuant to 99-10, in the event of two or more convictions for a variety of detailed offenses by any tenant, the termination of the rental agreement results. Additionally, "all [tenants at the address of the violator] have no more than seven days to vacate the dwelling from the date of the second such conviction." However, this express, fixed time-frame for vacating the rental unit violates the protective provisions established in the DLTC. Under Section 5513 of the DLTC:
City of Newark, Del., Ordinance 99-10.
(a) If the tenant breaches any rule or covenant which is material to the rental agreement, the landlord shall notify the tenant of such breach in writing, and shall allow at least 7 days after such notice for remedy or correction of the breach.
* * *
(3) If the tenant's breach of a rule or covenant also constitutes a material breach of an obligation imposed upon tenants by a municipal, county or state code, ordinance or statute, the landlord may terminate the rental agreement and bring an action for summary possession.
The grounds for and procedures governing an action for summary possession are set forth in the DLTC and the Rules Governing Civil Practice in the Justice of the Peace Court of the State of Delaware. Notably, "notice of hearing [for summary possession) and the complaint shall be served at least 5 days and not more than 30 days before the time at which the complaint [for summary possession] is to be heard." Also, significantly, a defendant in an action for summary possession "may demand a trial by jury within 10 days after being served." Finally, the DLTC sets forth the procedures to be followed by the successful plaintiff in an action for summary possession:
See 25 Del. C. Ch. 57.
Id. § 5705(a).
Id. § 5713(a); J.P. Civ. R. 38.
(a) Upon rendering a final judgment for plaintiff, but in no case prior to the expiration of the time for the filing of an appeal or motion to vacate or open the judgment, the court shall issue a writ of possession directed to the constable or the sheriff of the county in which the property is located, describing the property and commanding the officer to remove all persons and put the plaintiff into full possession.
(b) The officer to whom the writ of possession is directed and delivered shall give at least 24 hours' notice to the person or persons to be removed and shall execute it between the hours of sunrise and sunset.
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(c) The plaintiff has the obligation to notify the constable to take the steps necessary to put the plaintiff in full possession.
(d) The issuance of a writ of possession for the removal of a tenant cancels the agreement under which the person removed held the premises and annuls the relationship of landlord and tenant.
I conclude that because the terms of 99-10 requiring ouster of the tenants within seven days of the second conviction totally ignore, and conflict with, procedural requirements imposed by the DLTC, it is unenforceable. While the DLTC demands adherence to certain procedures, 99-10 simply ejects offending tenants within a set time-frame, in complete disregard of the Individual Plaintiffs' obligation to satisfy the DLTC's requirements governing the removal of tenants. Although theoretically the statutory process could be completed within seven days, 99-10 provides no guidance in the event that compliance cannot be achieved in accordance with its schedule. Moreover, a tenant could lawfully demand a jury trial, a right obviously central to the American system of justice, and such a demand would result in delay beyond the seven-day limit of 99-10. Finally, 99-10 ignores the important roles of an independent judiciary, in providing an opportunity for the tenant to be heard and in issuing a writ of possession, and the constable or sheriff, who executes the writ of possession, in implementing the remedy of summary possession. No landlord could insist upon the inclusion of these provisions in a rental agreement, and neither can the City.
I note that, due to practical concerns, this theoretically efficient system does not, in fact, accurately reflect the summary possession action in practice. Moreover, such system is implicitly premised upon a landlord's almost immediate receipt of information regarding the second conviction.
I have determined that 99-10, as adopted, is unenforceable. Thus, I do not reach the other arguments asserted by the Plaintiffs in seeking the invalidation of 99-10 under state law.