BOSTON — Legal memos are starting to fly in the early battle over a ballot question that would repeal Massachusetts’ ban on rent control, with the latest arguing the proposed question meets constitutional muster and should appear before voters in 2024.
After real estate, property owner, landlord, development, and fiscal associations sent letters to Attorney General Andrea Campbell in opposition to a ballot question that would hand municipalities the power to regulate rents and fees, a lawyer representing the original drafters is striking back.
Attorney Gerald McDonough said it is not surprising that the real estate industry, “which has extracted untold profits from our communities and reaped the gains of housing inflation, opposes the initiative petition.”
“Those interests who have realized the most benefit from the housing emergency and the ongoing inflation in residential rents are trying to stop the public from voting on the Tenant Protection Act, on speculative rationales before any municipality is even able to consider acting upon the power that would (be) delegated to municipalities pending voter-approval of the act,” McDonough wrote to Campbell in a Tuesday letter.
The ballot question, filed by state Rep. Mike Connolly, a Cambridge Democrat, scraps a portion of state law banning rent control and replaces it with new language allowing municipalities to set the rules for residential evictions, brokers fees, the removal of housing units from the rental housing market, and rents.
But it has drawn the ire of the real estate industry, fiscal groups, and even housing advocates. A New England fiscal group argued earlier this month that the question violates two state constitutional provisions governing whether questions make it before voters.
In Maine, Portland voters this November will consider a citizen-initiated referendum seeking to exclude landlords with nine or fewer units from the city’s rent control ordinance. The City Council voted 6-2 Monday to place the referendum on the Nov. 7 ballot.
Campbell, the Massachusetts attorney general, has until Sept. 6 to decide which of the 42 proposed laws and constitutional amendments filed with her office will advance. Questions range from removing the MCAS as a high school graduation requirement to giving the state auditor the power to audit the Legislature.
The Fiscal Alliance Foundation said Campbell should reject the proposal because it addresses multiple unrelated policies in the same question.
“The petition’s proposed regulation of both rents and evictions fails to satisfy the related subjects requirement,” the chair of the foundation wrote. “Although rents and evictions may be related at ‘some high level of abstraction,’ the petition fails to present a ‘unified statement of public policy’ that may be accepted or rejected as a whole by voters.”
McDonough argued the question has “but a single purpose – to empower municipalities.”
The attorney said the proposed change to state law focuses on a single purpose and subject and rejected arguments that it should be thrown out because it covers too many unrelated subjects.
“The opponents plainly and admittedly do not like the breadth of this proposal, but that is a policy disagreement to be resolved by the voters, not a legal basis for its exclusion by the attorney general or a court,” McDonough wrote.
Voters banned rent control in Massachusetts when they approved a 1994 ballot question that barred the practice. McDonough pointed Campbell to that 1994 “anti-tenant initiative,” arguing the question before the attorney general today “is quite similar in structure” to the law it seeks to replace.
Opponents “apparently feel that it was fine to combine a provision applying to evictions, condominium conversions, and the removal of properties from a rent control scheme in an anti-rent control initiative petition, while they contend that it is improper to do so in an overall tenant protection scheme,” McDonough wrote.
The Fiscal Alliance Foundation also argued Campbell should toss Connolly’s proposal because it violates state constitutional provisions barring takings of property without just compensation by granting municipalities “plenary power” to regulate rents and fees, brokers fees, residential evictions, and the removal of housing units from the rental markets.
The regulation of rents and removal of units from the rental market “will result in significant appropriation of private property value, given high market value rents and high demand for rental units across the commonwealth,” the foundation wrote.
“This fact is not merely ‘implicit’ in the language of the petition,” the group wrote. “It is express and inherent in the petition’s grant of ‘plenary’ municipal authority to regulate rents.”
But McDonough said that argument “has even less legal weight than the other arguments asserted” by opponents.
The attorney pointed to language in the proposed ballot question that bars municipalities from taking actions that would “deprive an owner of fair net operating income.”
McDonough said both the Supreme Judicial Court and the U.S. Supreme Court have upheld Massachusetts rent control and related removal restrictions against similar takings challenges, a fact that opponents “fail to acknowledge.”
“If the opponents desire to invalidate these precedents, they should be clear about their intentions and not fail to acknowledge them as they failed to do in their memoranda, but the attorney general’s review of an initiative petition is certainly not the place where such judgments can be made,” the attorney said.
Press Herald Staff Writer Rachel Ohm contributed to this report.
Comments are not available on this story.
Send questions/comments to the editors.
