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Kelli•Lawrence, Esquire <br /> October 29, 2002 Davis MALm CY <br /> Page 6 DAG®suN E Pc. <br /> construction. "The general rule is this: Whenever various portions of a statute have independent <br /> force, thus justifying the inference that the enacting body would have passed one without the <br /> other, this court will uphold the remainder of the enactment after the offending portion has been <br /> stricken." Del Duca v. Town Administrator of Methuen, 368 Mass. 1, 13 (1975). "On the other <br /> hand, "[i]f the court is unable to know whether the Legislature would have enacted a particular <br /> bill without the unconstitutional provision, it will not sever the unconstitutional provision, but <br /> will strike the entire statute". Murphy v. Commissioner of Department Of Industrial Accidents, <br /> 418 Mass. 165, 169 (1994), quoting, Mayor of Boston v. Treasurer & Receiver General, 384 <br /> Mass. 718, 725 (1981). Even with a severability clause, where the invalid and valid sections of <br /> legislation are "so entwined that the Legislature could not have intended that the part otherwise <br /> valid should take effect without the invalid part", Opinion of the Justices, 330 Mass. 713, 726 <br /> (1953), the entire legislation must be invalidated. <br /> Because Section 174-25.1 is by far the most substantial and significant change the Amendment <br /> makes to the Bylaw, providing all standards for use and development in C-3 Districts, and <br /> because either all or the majority of the subparts of Section 174-25.1 are an invalid exercise of the <br /> Town's zoning power,2 the entire Section must be invalidated. The severance of any one of these <br /> Sections would completely alter the substantive operation of the Amendment and it cannot be <br /> determined whether the Town Meeting would have passed the Amendment without the offending <br /> Sections. Accordingly, the entire Amendment must be invalidated. <br /> For all of the reasons stated above, we urge the Attorney General to disapprove Article 22, <br /> approved by the October 7, 2002 Town of Mashpee Town Meeting. <br /> Very ly yours, <br /> J. ' Cockfield <br /> SGC/ew <br /> Enclosure <br /> cc: Town Clerk(w/enclosure) <br /> Clients (w/enclosure) <br /> a Section 174-25.1(1) is invalid as regulatory,taking; Section 174-25.1(2) is facially invalid; and Section 174-25.1(3) is <br /> invalid because it violates the Fire Code and is impermissibly vague. <br /> J:\COCKFLD\TEDESCHI\Mashpee\Attorney GeneralAndoc <br />