I'm reading about a case going on in Delaware between neighbors. It seems to come down to a particular line in county code law: Code requires a special-use exception for “private garages for more than four automobiles and with floor area of more than 900 square feet in a residential district."

There's two conditions: 1) more than four cars, and 2) larger than 900 square feet. One side believes the word 'and' to mean it has to fulfill both conditions, whereas the other believes the exception is intended to apply to both conditions separately.

My understanding is that in the English language, the use of and in this sentence structure means it's referring to both things in the totality of the condition. But, in this case, it is also talking about two different ways of measuring the space, namely by occupancy and size. I believe it would be a little tight but four cars within 900 square feet seems reasonable for the most part.

Is this a common problem in law? The use of the word and? Is this particular line of county code law open and shut as far as most lawyers see it?

Based on the answers that agree that the verbiage in this case is clear, if one is being taken to court because someone is interpreting the clause differently, why is a lawyer really required? If you have the law on your side, why isn't it as simple as stating that? This seems to be a good example of how someone with wealth (or too much time) can strain someone financially using the courts meant to protect everyone.

  • To be honest, the same argument can be made to question whether "in a residential area" applies to "for more than four automobiles". Law, like computer code, should use parentheses ... – MSalters Oct 20 '16 at 22:19
  • Problems like this come up all the time in law. It is not open and shut. There are a variety of interpretive canons but most have counter-canons that can be used to argue the opposite. For example, an appellate court ruled yesterday in a parking place case that I briefed on the meaning of the words "shall" and "must' in a statute which often means that the language is mandatory, but in this particular context for a variety of reasons, mere substantial compliance with those conditions was all that the law required. – ohwilleke Oct 21 '16 at 6:58

As a linguist who reads laws for a hobby, I would say that "and" legally means what it was intended to mean. There are often interpretive statutes which say that "and" can be read as "or" or vice versa, when necessary (as in ORC 1.02

"And" may be read "or," and "or" may be read "and" if the sense requires it.

Delaware doesn't have that as a rule, but it is a rule employed by courts "as required".

One approach to interpretation is to discern intent from surrounding text, so we would look at the whole code. The general context is the rule that "A building or land shall be used only for the following purposes". Following Article XXVII of the code, other uses could be permitted because "§115-32. Special use exceptions may be permitted by the Board of Adjustment and in accordance with the provisions of Article XXVII of this chapter and may include...". That section ends with "C:Other special use exceptions as follows", and includes "Private garages for more than four automobiles and with floor area of more than 900 square feet in a residential district". From the list of things enumerated in §115-32, there is no coherent pattern – some things are in the list of special exceptions, some things are in this list, some not. So the "surrounding text" approach doesn't help in this case.

Scrutiny of legislative debate is sometimes invoked, especially at the federal level, but there is negligible chance that there is any such evidence here. The almost-final approach is to spell out the competing interpretations, and see if anything jumps out as ridiculous (because it is assumed that lawmakers do not pass ridiculous laws). The two interpretations are "both must be true", versus "one must be true". Since the general rule is that you can go ahead unless it is restricted, then with the "both" interpretation, you need a special exception permit if you simultaneously plan to have more than 4 automobiles (which means, 5+, so 4 is allowed) and floor area greater than 900 sf. Thus if you plan for only 4 cars, or can fit the 5 cars into 900 sf, then you would not require a permit (on the "both" interpretation). Which btw is the literal interpretation of "and". This is not an absurd scenario (using a generous 10'x18' space, which I derived from parking slot regulations in Danbury CT). So it is reasonable to think they meant "both".

The "either of these" interpretation says that they are being even more restrictive – you need permission to have a 5+ car garage (regardless of size), and you need permission to have a garage larger than 800 sf (even if there were only 1 car in it). This seems a bit specific since there isn't generally a size restriction on structures in the code – except that playhouses are limited to 150 sf. and can't be tall enough for an adult to stand up.

Since the literal meaning of "and" is "both at once", and since no facts about the code say otherwise (i.e. that interpretation does not result in an absurd nullification of some other provision), an objective court should interpret this rule to mean "both at once", thus the government imposes the fewest restrictions on your property. No way to know what they will do.

| improve this answer | |
  • I wasn't going to say anything, but then I thought, "a linguist, for cryin' out loud!" – phoog Oct 21 '16 at 2:42
  • Excellent answer. Nice finding the exact county I was talking about (wish I could give you a couple extra pluses). Reading other areas leads me to believe that and is used consistently to mean "in conjunction with". Would you happen to also know why there's an A, B, and C for the special use exceptions (versus 1 section)? I don't think they add a new section every time they amend the legislation. I believe you're correct about the use of and in this sense as well. – John Oct 21 '16 at 14:30

As a mathematician, the choice of "and" instead of "or" tells me that both conditions must be met together.

That seems consistent with reading other legislation from around the world, where two clauses (usually separated to their own bullet point) are connected by the word "and" when they are all required or permitted or possible, and the word "or" when only one is required or permitted.

If one accepts a 20 foot by 10 foot recommendation per vehicle, four vehicles would only require 800 square feet. Adding a foot to a two-by-two-vehicle garage's dimensions brings the area to 863 square feet.

It is not unreasonable to expect the legislator intended to restrict very large garages (likely linked to apartments or multiplexes) without preventing reasonable use of the property to store vehicles in. Hence, the conditions can be construed as both necessary.

| improve this answer | |
  • A perfectly reasonable view, but probably incorrect. As jurist Oliver Wendell Holmes, Jr. put it, "The life of the law has not been logic. It has been experience." In practice, this provision would probably interpreted to bar both garages that are more than 900 feet and also garages with more than four cars. A 900 square foot garage could easily hold six cars as a 150 square feet is actually a pretty decent sized parking space. – ohwilleke Oct 21 '16 at 7:02
  • What it could easily hold isn't important; habitability laws that mandate minimum volumes or areas, or maximum occupancy based on those, would be pointless otherwise. California has the 20×10 minimum, for example (either strongly recommended or required, can't remember which). – Nij Oct 21 '16 at 7:10
  • Law is not math. Words in law do not have fixed universal meanings. I get it, I was math major before I became a lawyer. But, this simply isn't how statutes and contracts are interpreted. The other answer to this question is a pretty accurate description of how the analysis is done. – ohwilleke Oct 21 '16 at 8:19
  • The other answer says generally the same things, in more detail and explication. What exactly ate you disagreeing with, besides the fact that I haven't written an essay to explain every single aspect that might be relevant? – Nij Oct 21 '16 at 8:34
  • I am disagreeing with the concept that "and" or "or" have well defined meanings out of a particular context. There is no universal meaning of these words in all places at all times. That isn't how you interpret statutes. You look at the overall purpose of the statute and the context of what it is specifically trying to say. – ohwilleke Oct 21 '16 at 20:19

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.