By JAIMIE JULIA WINTERS
Montclair could hold a special election on whether to implement the rent control ordinance first passed by the Township Council in April of 2020 — but never put into effect — on May 10.
That’s the date scheduled if the township clerk certifies signatures she first rejected on a petition by a group of landlords in late 2020. The petition effort was intended to force the matter to a referendum — instead of letting the ordinance go into effect 20 days after adoption, as would normally happen — and kicked off a legal battle that has continued for nearly two years.
But township officials say it’s still an open question whether all those signatures will be certified — despite rulings by Superior Court Judge Jeffrey Beacham and affirmed by an appellate court that the Township Clerk Angelese Bermúdez Nieves was “arbitrary and capricious” in her decision in earlier reviews to toss out some electronic signatures, for not appearing to match signatures on voter rolls. Landlords reject that, saying courts have been clear that the signatures should be accepted.
In the meantime, tenant advocates are lobbying for the extension of a separate, temporary rent increase freeze the township first authorized in May of 2020, and reauthorized every three months since, citing authority under New Jersey’s ongoing state of emergency. The latest authorization is set to expire March 31, and tenant advocates say hundreds of tenants will be hit with “unconscionable” rent increases without rent stabilization in place.
Last week however, the group of landlords asked a judge to stop further rent freeze extensions and to nullify past freezes. A court date is set for March 28.
The Township Council is expected to place a resolution that would extend the freeze once again, to May 31, on its March 15 agenda — keeping the measure in place until after the anticipated referendum date.
Multiple council members had expressed reservations about extending the rent freeze during the last vote, in December, though only Councilman Peter Yacobellis voted against it, saying both that he thought the rent freeze was on uncertain legal ground and citing signs of economic recovery since the start of the pandemic.
In the months since the latest court ruling, landlords and tenant advocates entered negotiations, aiming to come up with terms for a new, revised rent control ordinance that could render the 2020 version moot and head off a referendum, but talks fell apart last month. Yacobellis said this week if those talks had led to a plan for a new rent control ordinance, he would have considered voting for a short-term extension of the freeze, to bridge the gap until the new ordinance was in effect. “In that scenario, which didn’t come to bear, we wouldn’t have been sued over it,” he said.
Representatives of the landlords group say they were surprised the petition hadn’t yet been certified, after the court rulings.
“The township seems not to be able to understand a very clear directive from the appellate division,” Charles Gormally, who represents both the Montclair Property Owners Association landlords group and the committee of petitioners, said. “The court upheld the determination by the trial court that the clerk was arbitrary and capricious in rejecting signers of the petition. … The burden of proof is on the township to demonstrate that they could overcome the presumption that each e-signature was presumptively valid. Instead the clerk is now apparently doing what should have been done originally and trying to contact at least 18 rejected signers and confirm that they wanted to sign the petition.”
After the appellate ruling, the case was sent back to Beacham’s courtroom for an evidentiary hearing on Dec. 20, but township representatives failed to appear. Gormally said that he and his clients have “demanded” that either the township move ahead with an evidentiary hearing or certify the petition.
“In our judgment these are the only two options available to them,” he said.
At a March 1 Township Council meeting, interim Township Attorney Paul Burr said the clerk is in the process of trying to cure a “few” more petition signatures from a final 18 needed to certify the petition. He said the clerk was “still waiting for people to send in their petitions to cure the process,” adding that if she was unable to cure those signatures “they [the petitioners] hadn’t met their burden.”
The referendum petition, first submitted in September 2020, had been the first in New Jersey conducted electronically, because of the pandemic. It needed 1,020 validated signatures from Montclair voters — or 15% of the votes cast in Montclair at the then-most recent election with General Assembly seats up for a vote — to prompt a referendum.
Nieves rejected several hundred signatures, including 168 she said didn’t match the versions on voter rolls. That version, she found, ultimately fell short by 106 signatures. An amended petition was forwarded to her on Dec. 7, 2020, with several “cured” as well as new e-signatures, which she still deemed short by 18 signatures.
The appellate judges ruled it was “unreasonable, because of the limiting circumstance of the COVID-19 pandemic, and the governor’s emergency order precluding door-to-door solicitations, for the clerk not to reach out and provide voters with an opportunity to cure the alleged uncertain signatures before attempting to disenfranchise them from the referendum process.”
Ron Simonicci, executive director of the Montclair Property Owners Association, said that under the court rulings, the clerk shouldn’t be trying to cure or confirm signatures now — but to certify the petition with them as is.
“The judge did not, in fact, direct the clerk to make the confirmation that she should have made initially if she were concerned about signature validity,” Simonicci said. “He said her rejections of the signatures were improper, period. The appellates affirmed it, and did so, I have to say, in no uncertain terms. So, if the municipality wants to once again try and figure out a means of creating the impression, after two years, that it is unable to locate signatories and rely on that as a defense for not certifying, it is risking even more devastating litigation that it has already suffered.”
The 2020 ordinance limits annual rent increases to 4.25%, and to 2.5% for seniors. Instead of going into effect after 20 days, it was put on hold when a judge granted the landlords a stay, saying they intended to file a petition but citing the difficulty of signature-gathering during the early days of the pandemic.
In the recent negotiations, the landlords and tenant advocates had made some headway, representatives of both sides had said. According to Simonicci, they’d come to terms on a 4% overall rent increase limit, and agreed to do away with a 10% rent increase limit on apartments vacated by tenants, instead allowing increases after vacancies with no limits, but no more often than once every five years.
But the landlords group had problems with the tenants advocates’ attempts to set a 2.5% rent increase limit for seniors, to make the ordinance retroactive to April 2020 and to require landlords to release private information about tenants as part of the registration process with the township, Simonicci said. The landlords called those conditions unconstitutional.
At the March 1 council meeting, Landlord Tenant Advisory Committee Chair Deirdre Malloy suggested tenant advocates and landlords come back to the table instead of “ending in a stalemate.”
But Simonicci said that they would not go back to negotiating. And Montclair Mayor Sean Spiller said last month he, too, expects a referendum.
If rent control is voted down through a referendum, the township would have to wait another three years to create another ordinance.
This story has been updated to include further information about the Montclair Property Owners Association’s opposition to a rent increase freeze, and comments from Councilman Peter Yacobellis, the only member of the Township Council to vote against the last extension.