By JAIMIE JULIA WINTERS
winters@montclairlocal.news

An appellate court’s ruling is likely to send the question of rent control in Montclair to voters in a referendum.

Three appellate judges Nov. 30 affirmed a previous judge’s ruling that Montclair’s township clerk “acted arbitrarily and capriciously” when she rejected a group of property owners’ petition to have voters decide the issue of rent control, and she tossed out electronic signatures she found didn’t match handwritten ones on voter rolls.

It’s the latest development in a legal fight that reaches back to the spring of 2020, when the Montclair Township Council first passed an ordinance to limit annual rent increases to 4.25%, and to 2.5% for seniors. It would have taken effect 20 days after its approval on April 27, 2020, but state law sets that buffer so residents can gather signatures for a petition.

Instead, the Montclair Property Owners Association got a court order delaying the effective date of the ordinance until after the state of emergency for the coronavirus pandemic ended — because social distancing restrictions got in the way of door-to-door petitioning. They then conducted the state’s first-ever electronic signature-gathering petition, allowed because of the pandemic restrictions.

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.”

Although Township Clerk Angelese Bermudez Nieves previously testified she and a staff member spent more than 20 hours analyzing the signatures, the appellate court held that the clerk should have phoned individual signers for confirmation of their signatures. 

The appellate court also notes the clerk had the individuals’ names, addresses, email addresses and other contact information, and said “common sense and a rational view of the clerk’s statutory role more than persuades that the time spent comparing doubtful signatures would have been more effectively utilized by reaching out to those voters” before disenfranchising them.

Charles Gormally, the Montclair Property Owners Association and committee of petitioners’ attorney, said that the opinion, which will be published, will set a precedent for certifications of signatures in future electronic signature-gathering petitions.

Township Attorney Ira Karasick has not yet returned an email sent Nov. 30 asking for comment on the decision. 

The appellate court’s ruling sends the matter back to a trial court for further proceedings, in conformity with the appellate decision. That’s likely to result in the referendum the property owners pursued.

There’s also the remaining issue of a suit the landlords filed against the township, claiming a civil rights act violation and requesting the judge order Montclair to pay the landlords’ legal fees, which Gormally said he’s confident the judge will do. That amount could be anywhere from $200,000 to $300,000, Gormally added.

The township could avoid some time in court by withdrawing its opposition to the petition — resulting in the petition’s being certified, and the referendum taking place.

The township could also repeal its ordinance, rendering the matter moot. Then, no referendum would take place, and no rent-control measure would go into effect. 

If the Township Council decides not to repeal the ordinance, it has 40 to 70 days to set a special election.

Gormally said he’s hopeful for yet another scenario — that in the next 10 days, township officials and his group would work together on a new version of the ordinance that would address landlords’ concerns, mainly about a vacancy clause in the current version. 

The landlords want the right to raise an apartment’s rent to market rates when a tenant vacates a unit, but the current ordinance caps those increases at 10%. If township officials and the landlords could come to an agreement, Gormally said, the petition would be withdrawn and no referendum would be necessary. 

Councilwoman Robin Schlager said she is disappointed with the outcome of the court case, as she supports rent control.  

“But now that it looks like a referendum is upon us, and to avoid the risk of no rent control at all, then yes, I would consider the option to meet with the landlords,” she said.

Mayor Sean M. Spiller said he is willing to have conversations “with anyone,” he said he will continue to be guided by residents “burdened by astronomical rent increases, struggling to remain part of the fabric of our community.

“The diversity, socioeconomic and otherwise, that we celebrate often, is something worth fighting for. Common-sense rent control measures need to be at the core of any solution, either by ordinance or referendum. The goal is to have something that works, not just to have something,” he said.

Ron Simoncini, executive director of the Montclair Property Owners Association, said landlords should have been consulted from the onset, and that requests by landlords to enter into “a good-faith dialogue” about amendments with township officials have gone unanswered.  

“The property owners recognize that rent control can provide a measure of protection to tenants and are in agreement that protections should be considered.  But absent a sincere dialogue on the impacts and unintended consequences — including the exorbitant costs of administering it — we have no choice but to seek a repeal of this ordinance,” Simoncini said.

He said that the landlords are expecting Montclair officials to “continue their attempts to disrupt the referendum process. ... The writing is on the wall: This matter is headed for the ballot and the voters will have a chance to decide.” 

BACKGROUND IMAGE BY KELLY SIKKEMA VIA UNSPLASH
BACKGROUND IMAGE BY KELLY SIKKEMA VIA UNSPLASH
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Rejected signatures

In September 2020, the property owners first 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 614 signatures, 448 for reasons that weren’t contested in court. She rejected 168 for failing to match the handwritten signatures on record. That version, she found, ultimately fell short by 106 signatures.

A trial judge gave the property owners time to submit a cured petition, and a new version included another 136 e-signatures, some intended to cure those that had been rejected the first time around. That time, Nieves rejected 27 signatures, finding the petition came up just 18 signatures short.

The matter then continued making its way through court.

Early this year, Judge Jeffrey Beacham overturned his own previous ruling in favor of the township, and instead ruled in favor of the landlords, ordering the clerk to certify the petition. After the township filed an appeal in April, Judges Clarkson S. Fisher, Heidi W. Currier and Patrick DeAlmeida heard both sides on Sept. 21 in Trenton.

Beacham’s more recent decision would have required a special election or that the township get rid of the ordinance entirely, but it had been on hold during the appeal process.

“The question, after all, was not whether, when analyzed in a vacuum, an e-signature matched a pen-and-ink signature but whether the voter ‘intended’  that the e-signature be an expression of intent to endorse the petition,” the appellate opinion reads. It references Matthews v. Deane, which it says recognizes “the term 'signature' to be that which an individual intends to be his [or her] signature.”

“The clerk could have ascertained the voter's intent by simply reaching out to the voter for confirmation,” the opinion reads.

Gormally called the decision a “complete victory for the committee” of landlords. 

Councilman Peter Yacobellis, in a message sent to media Tuesday, said that “regardless if you are for or against this version of rent control that will now likely end up on the ballot in early 2022, the last few years have taught us how important it is to protect the rights of the people to participate in their democracy, whether that is voting, petitioning or simply sharing their opinions.”

Yacobellis said the pandemic demands that government be more flexible and accommodating.

“In fact, now the court has said as much. In my view, that's a good and healthy thing for our local democracy,” he said. 

Councilman Bob Russo said in an email he continues to support "our very modest rent control ordinance and an extension of the [township’s separate] rent freeze, which I believe is necessary until the voters reject the petition and affirm our reasonable ordinance to protect our tenants and our Montclair diversity and affordability."

Toni Martin of the Tenants Organization of Montclair, a group of residents who lobbied for rent stabilization for over three years, noted the ruling wasn't about rent control itself, but about the procedural matter of signature-gathering. She said “gentrification has been on a rampage in Montclair and it is well past time to stop the dissolution of its diverse community.”

And she called the landlords’ contention their civil rights were denied “absurd on its face.”

In an email to Montclair Local, AhavaFelicidad, Tenants Organization president, said the group remained “unwavering in our commitment” to seeing the rent control ordinance implemented.

“Hope springs forward and with the same absolute certainty that this journey’s revitalization began,” she wrote.

Montclair’s separate rent freeze moratorium, first implemented in the pandemic, is set to expire on Dec. 31, unless the Township Council extends it further. That measure is allowed because of the state of emergency, and must be renewed regularly to stay in effect.

“There is great reason to fear what will occur between expiration of the pandemic-related freeze on rent hikes in Montclair and the referendum vote on rent control, which cannot be scheduled before early next year,” Martin said. “This will be a no-holds-barred time for landlords who may have suffered diminished profit during the pandemic.”

Rent-stabilization measures that went to referendums in 1979 and 1986 both failed in Montclair. If voters decline to pass rent control, it would be another three years before another rent control ordinance could be proposed, Gormally said.

Emails sent by Montclair Local on Nov. 30 to Mayor Sean Spiller and to other council members seeking comment on the ruling have not yet been answered.