REALTOR.COM
BY JAIMIE JULIA WINTERS
winters@montclairlocal.news
Opponents of Montclair’s rent-control ordinance have filed an amended referendum petition with the township after their first petition was rejected by the township clerk in October.
They have also filed a brief asking an Essex County Superior Court judge to compel the clerk to certify the first petition, which was rejected because of signature and voter status issues, and submit it to the Township Council for further proceedings.
“If the clerk again applies her flawed ‘methodology’ for examining e-signatures to these new e-signatures, the plaintiffs’ statutory right of referendum will be irreparably destroyed with no further amendments permitted by the referendum statute. Therefore, the risk of irreparable harm is not eliminated by the filing of an amended petition,” Charles Gormally, attorney for the petitioner group, wrote to the court on Dec. 4.
The amended petition was forwarded to the township clerk on Dec. 7, with 136 “cured” and new e-signatures. The original petition was deemed short by 106 signatures. If the amended petition is certified, Montclair’s rent-control ordinance, passed in April, could be put before the voters in a special election.
The ordinance never went into effect after a judge granted a stay following the filing of an injunction request by the petitioners, who are associated with the Montclair Property Owners Association, stating their intention of petitioning for a referendum but citing signature-gathering as difficult during a pandemic.
The ordinance, which limits annual rent increases to 4.25 percent, and to 2.5 percent for seniors, was to take effect 20 days after its approval, on April 27. The 20 days is set by state statute so that residents can gather signatures to petition for a referendum.
Pandemic petition
The petitioners were the first in the state to conduct an electronic signature-gathering, permitted due to the pandemic, and on Sept. 23 submitted 1,530 signatures to the township electronically. The petition needed 1,020 validated signatures from Montclair voters, or 15 percent of the total votes cast in the municipality at the last election in order to have the question placed on the ballot in a special election.
In a notice of insufficiency dated Oct. 14, Township Clerk Angelese Bermúdez Nieves stated that although 914 signatures were acceptable, the petition was short 106 signatures. She rejected 616 signatures based on the signatures themselves, addresses, registration status or incompleteness. The group had 10 days to amend the petition by filing a supplement, but on Oct. 19 they asked for injunctive relief from that time period. The judge agreed and gave the group more time, with the parties expected to have responses back to the court by Nov. 9 and 13.
But on Nov. 11 Gormally wrote to the judge asking for an extension until after Nov. 23, contending “the parties are joining in a request for an adjournment of the return date to a later date to give the parties an opportunity to explore a non-litigated resolution of the matter.”
What landlords want
Gormally called into the Dec. 1 council meeting, accusing the council of excluding landlords from the rent-control ordinance discussion from the very beginning.
“It’s incumbent of those elected officials who took an oath of office to involve both parts of the discussion to hear fully from tenants as well as the landlord community,” he said.
Gormally said further requests for discussion have been ignored. The petitioners group has reached out to the township and the tenants association group, which had lobbied for rent control, to negotiate amendments to the ordinance and to “prevent this from being on the ballot,” he said.
The group is not against rent control, Gormally told Montclair Local, but seeks three changes to the ordinance. The landlords are concerned with the 10-percent limit on a vacancy increase. The limit could be problematic for apartments that have been leased to long-term tenants, he said. After upgrades, the landlord should be permitted to raise the rent to market rate, he said.
Another issue is that the ordinance requires that the unit be free of any housing code violations before an increase can be made. Gormally said that if renters have issues with a negligent landlord, they can by law withhold the rent and also file a grievance with the Landlord/ Tenants Committee.
Finally, the landlords are against the $250 fee for vacancy rent increases.
Township Attorney Ira Karasick told Montclair Local that he agreed to the plaintiff’s request for adjournment “in order for the council to consider a settlement proposal by the plaintiffs.”
“It is an attorney’s ethical duty to communicate any such offers to his or her clients,” Karasick said. “This was not the first time plaintiffs had broached settlement. The recent proposal, which consisted of a brief list of changes sought, was duly presented to the council in executive session.
“I cannot disclose what took place in the closed session, but I can tell you that as a result, on Nov. 17 I sent the following email to the plaintiffs’ attorney: ‘The council last night discussed the settlement terms you proposed and rejected them as a basis for further negotiations.’
“Any statement or insinuation that the council or I have ignored or failed to respond to plaintiffs’ calls for settlement or compromise is completely untrue. The plaintiffs just do not like the answers they received.”
The problem with e-signatures
In April, after Gov. Phil Murphy signed an executive order allowing county and municipal clerks to accept referendum petitions electronically and to allow the signatures to be collected electronically, the rent-control petition signatories were reached via email or text message with a link to an online petition.
They then signed with their mouse, a stylus or a fingertip. The petitioners group argued that those signatures rarely look similar to a pen-and-paper signature on voter records.
Karasick told the court that the clerk acknowledges that because a signature signed on a screen or with a mouse or a finger would likely differ from one signed with a pen in a book, she gave broad latitude to the appearance of the signature when comparing it to the book.
“Nevertheless, she notes that it is both feasible and possible to provide an acceptable signature as demonstrated by the 914 she found valid,” Krasick wrote to the court.
Gormally said, however, that by law the clerk is not required to compare signatures on any petitions – paper or electronic.
In “curing” the signatures, the group emailed each of the voters whose signatures were rejected and requested that the voter revisit the petition website, re-sign the petition and add missing information as necessary. That resulted in 83 voters re-signing the petition.
In addition, 53 new voters signed the petition, “for a total of 136 cured and new signatures submitted, which well exceeds the shortfall of 106 signatures identified by the clerk,” according to the court documents.
But Karasick told Montclair Local: “It has been our unwavering position that the original 20-day period to submit a referendum should not have been extended, that the petition finally submitted was insufficient, that the cure period should not have been extended, that the clerk’s determinations are reasonable and correct, and that plaintiffs miserably failed to meet the requirements (as modified by the State of Health Emergency) to trigger a referendum election.” The plaintiffs contend, however, that the clerk should have gone beyond a “cursory review” and contacted any of the voters whose e-signatures were rejected.
“Simply put, the clerk did not do the research to learn how to examine e-signatures, she did not develop a sound methodology that could be easily replicated, and she did not contact any voters whose signatures were rejected to confirm her analysis. The sum of these failures equals arbitrary and capricious municipal action that should be rejected by this court,” Gormally wrote to the court.
Once the petition is resubmitted, the clerk has five days to review it. From there, if the petition is certified, the clerk passes it to the council for a 20-day review. If the council does not rework the ordinance or if the petitioners reject it, a special election would be held in 40 to 60 days, according to documents provided by the New Jersey League of Municipalities.
Gormally said that the group is hoping that once the petition is certified, the 20-day review could be extended to allow the landlords to work with the town to amend the ordinance, working through their three issues.
“We would like to avoid a special election, which could very likely result in voters voting down a rent-control ordinance of any kind,” he said.
A hearing date on the certification request has not yet been set. Karasick said depending on the judge’s decision and final order, the township will decide whether to appeal or file a motion for leave to appeal.
While Montclair’s rent-control ordinance is being held up in court, the township once again extended its rent-freeze moratorium, on Dec. 2, as the pandemic rages on.