Judge gives Montclair 20 days to nix rent control, or send it to voters
By JAIMIE JULIA WINTERS
Montclair’s rent ordinance could be repealed by the township’s governing body, or could go to the voters to decide.
Monday, an Essex County Superior Court judge ordered the township clerk to certify a petition that the Montclair Property Owners Association — a landlords group challenging the law — filed after the township council first approved the ordinance last April, seeking to put the measure on the ballot. The judge’s ruling gives the council 20 days to repeal the ordinance or hold a special election on the issue.
The ordinance, which limits annual rent increases to 4.25%, and to 2.5% for seniors, was to take effect 20 days after its approval on April 27, 2020. State statute sets the 20-day buffer so residents can gather signatures to petition for a referendum, as the landlords group did.
Judge Jeffrey B. Beacham’s decision Monday vacated his own Jan. 15 ruling that upheld municipal clerk Angelese Bermudez Nieves’ rejection of both an original petition and then a “cured” petition the association had submitted last year. The association asked the judge on Jan. 25 to stay that order, and reevaluate it.
The petitioners were the first in the state to conduct an electronic signature-gathering petition, permitted because they couldn’t go door-to-door during the ongoing coronavirus pandemic. In September, they submitted 1,530 signatures to the township electronically — more than 500 more than they needed to get the measure on the ballot — but Nieves’ rejected several hundred votes. In the second cured petition, Nieves also rejected 27 votes because she found electronic signatures didn’t match the signatures in voting records. Ultimately, she found, the cured petition came up 18 signatures short.
Charles Gormally, the association’s attorney, has argued the voters whose signatures were rejected — all of whom were registered voters with valid Montclair addresses — were not offered a mechanism to cure their signatures. Beacham last month said a clerk isn’t required to reach out to signers to cure their signatures on a petition.
But Gormally, who said he “rarely” asks the court for a reconsideration, asked the court for just that, based on new evidence. He cited two cases, Stone v. Wyckoff and Matthews v. Deane — arguing they set precedents there is “no legal authority supporting a clerk to allow her to reject a signer of the petition outright based solely on a claimed non-matching signature.”
At Monday’s hearing, he argued the cases support that people have multiple signatures, and that while the clerk does have a broad discretion in certifying signatures, she should have gone beyond the “binary comparison” of signatures on petitions that were from registered voters with valid Montclair addresses.
Gormally argued that since the township has possession of phone numbers and emails of petition signers, the clerk should have reached out to the residents whose signatures were rejected, to allow them to be “cured.”
Gormally, in the past, has pointed to the Signature Guide issued by the state last summer, when New Jersey for first allowed for voters to cure their signatures. That guide does instruct clerks to contact voters whose ballots contain signatures the clerk feels do not match voter records. The guide requires that a customized “cure letter” with a “cure form” must be sent to each voter within 24 hours of identifying a discrepant signature.
Gormally also submitted a certification of evidence that he had been able to contact 20 of the 27 residents whose signatures were rejected, and they confirmed they had signed twice — once in the first round, and again in the attempt to cure the first petition. He said that demonstrated the signers wanted rent control on the ballot, and that the clerk could have easily allowed the signers to cure their signatures.
Township attorney Ira Karasick called that evidence “manufactured” and “late,” saying it easily could have been presented prior to the January ruling.
“The judge already ruled that the clerk went far enough. It’s not an argument that the emails to the rejected signers were readily available,” Karasick said.
In the end, Beachan said election laws are “liberally constructed” in order to have the will of the people heard, and allow for the greatest scope of participation.
Karasick — who said at a Feb. 16 township council meeting that Montclair would appeal if it lost after the judge agreed to reconsider his ruling — said that may not be the case now.
“Although I find it obnoxious to leave a decision like this standing without making an effort to overturn it, whether to appeal or not is a decision for the council based on multiple factors and timing,” Karasick said in an email to Montclair Local. “Remember that the practical result of the court’s fiat is to hold a referendum election. A sooner rather than later election, if one must be held, may be a better alternative (or not). The council plainly supports rent control. The question will be what’s the best way to get there. Appeal may or may not be the right answer.”
The Montclair Property Owners Association maintains it is not against rent control, but seeks changes to three parts of the ordinance that the group opposes: a 10% limit on a vacancy increase, a requirement that a unit be free of any housing-code violations before an increase can be made, and a $250 fee for vacancy rent increases.
The association has also maintained that the rent control ordinance was rushed through with no input from the landlords just as the pandemic set in and before the May elections.
“While the township is certainly free to file an appeal of this decision to the Appellate Division, the committee is hopeful that they will recognize the error of their previous enactment and not take this unlikely-to-succeed action,” Gormally said in an email to Montclair Local. “One could validly ask — why would the township fight against its registered voters who have asked that this important matter be subject of a public vote? Rather than storming the Capitol, Montclair voters demanded that their government listen to the electorate by following the law and putting the matter to a vote. Are the mayor and council listening?”
Past rent stabilization referendums in 1979 and 1986 both failed in Montclair.
Due to Montclair’s rent freeze during the state of emergency, rents cannot currently be increased. However, rents can be increased if an apartment becomes vacant, at the discretion of the landlord.
NAACP president Al Pelham said: “At this point we are extremely disappointed in the Judge's decision to vacate his Jan. 15 ruling.” He said the NAACP would have further comment once the township council decides on its direction.
But the Tenants Organization of Montclair is optimistic.
“It is the will of the people to have rent control. We know it is going to happen, but sorry to see another setback. Onward we go,” Toni Martin, vice president of Tenants Organization of Montclair, said.
If the matter goes to referendum, a special election will be held in late April or early May, said Katya Wowk, township communications director.