CB59-2018: Sections of Bill Expanding PSA Cannot be Severable

CB59-2018 “AN ACT amending the General Plan for Howard County (“PlanHoward 2030”) by adjusting the Planned Service Area” has the standard provision in most Council Bills that the sections are severable.  Normally, this section would serve to fulfill the will of the Council to allow the remaining sections of the bill to take effect if one section of the bill were to be declared invalid by a court,  However, in this case, that clause actually undermines the overall intent of the bill, and it must be stricken.

Plausibly, the only section that might be held invalid is Section 2 which protects the County and the community from changes to the PSA if the Erickson Continuing Care Retirement Community (CCRC) is not constructed. It sets a 3-year time limit on Zoning Board action and a 10-year limit on constructing a sewer and water connection.

Section 1 is the operable provision modifying the PSA. If it were stricken, the rest of the sections are effectively moot.

Section 3 amends PlanHoward 2030 and is meaningless if Section 1 is invalid.  Declaring Section 3 invalid would leave a change to the County Plan unamended; this is nonsensical.

Section 4 is the invalidity clause itself.

Section 5 is the standard language that the bill takes effect in 61 days.

Thus, Section 2 is the only section which might logically be declared invalid. At the Planning Board, Erickson’s counsel William Erskine referred to it somewhat inaccurately as “a poison pill.” Whereas a poison pill normally is used by a corporation to protect the status quo and thwart a takeover, the provision is Erskine’s idea to promote a development change in Clarksville and was written to assuage opposition to the PSA expansion; it is really a condition subsequent. This provision which he drafted is necessary to fulfill the overall intent of the bill to authorize construction of a CCRC and CANNOT be severed from the remaining parts of the bill. It would actually serve the intent of the Council and the stated position of Erickson (unless Erskine actually believes this is all game play and that he can have Section 2 declared invalid down the road) to amend Section 4 to state that “it is the intent of the Council that Section 2 is integral to the operation of the bill and if for any reason Section 2 or its operation is declared invalid by any court of competent jurisdiction than the entire bill shall be null and void.”




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