Can a city call an emergency meeting to impose a rental permit moratorium right after a court strikes down its housing ordinance?

Official title

04-IB01: Re: F.O.I.A. Complaint Against City of Newark

Plain-English summary

A Newark Chancery Court judge struck down the city's off-campus student-housing ordinance as discriminating based on marital status, in violation of the Delaware Fair Housing Act. The next day, the city posted notice of a special council meeting for the following evening to address what it saw as a sudden gap in its zoning authority over rental properties, and the council voted unanimously to freeze new rental permits until it could rewrite the housing code. A resident complained the city hadn't given the standard seven days' notice. The AG agreed the city had a real emergency justifying a special meeting on short notice, a court had just erased the city's tool for regulating a wave of new rentals, and there wasn't time to wait for the next regularly scheduled meeting three weeks later. But the city's notice for that meeting never actually explained why the usual notice period couldn't be met, which FOIA requires even for a legitimate emergency. The AG called this a technical violation, but found no point ordering a fix since the city council had already revised the flawed ordinance and lifted the temporary moratorium by the time this opinion issued.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can a court ruling that strikes down a city ordinance justify calling a special meeting with only a day's notice?
A: Yes, according to this opinion, when the ruling creates a genuine gap in the city's regulatory authority that can't wait for the next scheduled meeting, the AG found that kind of exigency satisfies FOIA's special-meeting standard.

Q: Does a special meeting notice have to explain why the usual seven-day notice couldn't be given, even in a real emergency?
A: Yes, according to this opinion. The AG found FOIA requires that explanation regardless of how obviously urgent the situation actually was; omitting it is still a violation, just typically a technical one.

Q: If a city later fixes the problem that led to a rushed emergency vote, does the Attorney General still order a do-over?
A: Not necessarily, based on this opinion. The AG declined to require any remediation because the city had already amended its ordinance and lifted the temporary rental moratorium by the time the complaint was resolved, making a redo pointless.

Background and statutory framework

The complaint concerned the City of Newark's November 20, 2003 special meeting, called the day after a Chancery Court ruling in Newark Landlord Association v. Bauscher et al. invalidated the city's off-campus rental housing ordinance under the Delaware Fair Housing Act, at which the council imposed a temporary rental-permit moratorium. Applying 29 Del. C. § 10004(e)(3) and its own line of prior opinions, including Att'y Gen. Op. 94-IO37, Att'y Gen. Op. 98-IB05, Att'y Gen. Op. 96-IB15, and Att'y Gen. Op. 97-IB18, the AG found the city had shown genuine exigent circumstances comparable to those in Att'y Gen. Op. 00-IB07, Att'y Gen. Op. 01-IB02, and Att'y Gen. Op. 03-IB16, justifying a special meeting under 29 Del. C. § 10004(e)(2)'s reduced-notice framework. But because the city's notice omitted the required explanation for skipping the standard seven-day period, the AG found a technical violation, declining to order remediation since the underlying ordinance flaw had already been corrected and the moratorium lifted by the council's own subsequent action.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(2), standard seven-day meeting notice requirement
• 29 Del. C. § 10004(e)(3), 24-hour special meeting notice with a required explanation for the shortened period

Cases:

• Att'y Gen. Op. 94-IO37 (July 26, 1994), only a reason, not a detailed factual basis, is required for shortened notice
• Att'y Gen. Op. 98-IB05 (July 6, 1998), a FOIA violation is found where notice gives no explanation at all for skipping the seven-day period
• Att'y Gen. Op. 96-IB15 (May 10, 1996), same rule on required notice explanations
• Att'y Gen. Op. 97-IB18 (Sept. 2, 1997), same rule on required notice explanations
• Att'y Gen. Op. 00-IB07 (Apr. 28, 2000), exigent circumstances can justify a special meeting
• Att'y Gen. Op. 01-IB02 (Jan. 30, 2001), a looming court deadline justified a special meeting
• Att'y Gen. Op. 03-IB16 (Aug. 8, 2003), the AG accepted a town's representations about the urgency of a road-improvement matter
• Newark Landlord Association v. Bauscher et al., C.A. No. 17583-NC (Del. Ch. Nov. 17, 2003), invalidating Newark's off-campus rental ordinance under the Delaware Fair Housing Act

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/01/28/04ib01-re-f-o-i-a-complaint-against-city-of-newark/
• Original PDF: not linked from landing page

Original opinion text

January 28, 2004

Civil Division-Kent County

Mr. Albert G. Porach

220 E. Park Place

Newark, DE 19711

Re: Freedom of Information Act Complaint Against City of Newark

Dear Mr. Porach:

Our Office received your Freedom of Information Act ("FOIA") complaint on November 25, 2003 alleging that the City of Newark ("the City") violated FOIA by not providing timely notice to the public of a special meeting on November 20, 2003.

By letter dated December 1, 2003, we asked the City to respond to your complaint. We received the City's response on December 17, 2003. We received a supplemental response from the City on January 7, 2004.

The City provided us with a copy of a Memorandum Opinion dated November 17, 2003 in Newark Landlord Association v. Bauscher et al., Del. Ch., C.A. No. 17583-NC (Noble. V.C.). In that litigation, the landlord association sued the members of the City council to enjoin enforcement of an ordinance regulating off-campus student housing. Vice Chancellor Noble held that the ordinance violated the Delaware Fair Housing Act because it discriminated on the basis of marital status.

On November 19, 2003, the City posted notice of a special meeting to be held at 5:00 p.m. on November 20, 2003 to discuss amending the municipal housing code in light of the Chancery Court decision. (You provided us with a copy of that notice as well as the minutes of the November 20, 2003 special meeting). The minutes of the special meeting show that the Council voted unanimously to impose a temporary moratorium on new rental permits until the Council had the opportunity to amend the municipal housing code to comply with state law.

According to the City, "[a]fter being advised of the [Chancery] Court's decision" on November 17, 2003, "the Mayor determined that the absence of any authority over the further proliferation of rental properties in residential neighborhoods constituted an exigent situation. At that point in time, there was essentially a vacuum with respect to the City's lawful authority to exercise its power to control certain zoning and land use practices." The City therefore decided "that a special meeting of the City Council should be scheduled to address that vacuum."

Relevant Statutes

FOIA requires that "[a]ll public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public at least 7 days in advance thereof." 29 Del. C. § 10004(e)(2) (emphasis added). For special meetings, FOIA requires a public body to give notice "as soon as reasonably possible, but in any event not later than 24 hours before such meeting." Id. § 10004(e)(3). The public notice of a special meeting "shall include an explanation as to why the [normal seven days notice] could not be given."

Legal Authority

FOIA "requires only a reason, not a specific detailed factual basis, why the seven-day [notice] requirement could not be met." Att'y Gen. Op. 94-IO37 (July 26, 1994). "But we have consistently found a FOIA violation where the notice failed "'to provide any explanation whatsoever concerning the reason why the normal seven day notice requirement could not be given.'" Att'y Gen. Op. 98-IB05 (July 6, 1998) (quoting Att'y Gen. Op. 94-IO37 (July 26, 1994) and citing Att'y Gen. Op. 96-IB15 (May 10, 1996) and Att'y Gen. Op. 97-IB18 (Sept. 2, 1997)).

Clearly, the City has shown "exigent circumstances or compelling need for the [public body] to hold a 'special' meeting." Att'y Gen. Op. 00-IB07 (Apr. 28, 2000. See Att'y Gen. Op. 01-IB02 (Jan. 30, 2001) (town properly called a special meeting to consult with its solicitor because the time to appeal a court decision would have expired by the time of the town's next regularly scheduled meeting); Att'y Gen. Op. 03-IB16 (Aug. 8, 2003) ("we will accept the Town's representations about the urgency of the road improvement matter"). After the Chancery Court's decision on November 17, 2003, the City was faced with exigent circumstances which could not wait to be addressed until the next regular meeting of the City Council (scheduled for December 8, 2003). The City took immediate steps to place a temporary moratorium on the issuance of new rental permits so as not to violate state law.

The City, however, does not dispute that the notice for the November 20, 2003 special meeting did not state an explanation why seven-days' notice could not be given. We find therefore that a technical violation of FOIA occurred. Conclusion

For the foregoing reasons, we determine that the City violated the open meeting requirements of FOIA by not providing an explanation in the notice of the November 20, 2003 special meeting why seven days advance notice could not be given. We do not believe that any remediation is required because the City Council met on December 22, 2003 and lifted the moratorium adopted at the special meeting on November 20, 2003. According to the City, "[i]n the interim the Council had amended a City ordinance found to be flawed by the Court of Chancery. That flaw was removed at a meeting of the City Council on December 8, 2003." Under the circumstances, remediation would not serve any purpose at this time.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

Lawrence W. Lewis, Esquire

Deputy Attorney General

Roger A. Aiken, Esquire

City Solicitor

Phillip G. Johnson

Opinion Coordinator