Opponents challenge constitutionality of proposed rent control ballot question

By Chris Lisinski

AUG. 15, 2023…..A burgeoning campaign seeking to revive rent control in some communities already faces stiff, well-funded opposition on policy grounds, and now it will need to withstand a constitutional challenge as well.

The Fiscal Alliance Foundation, a government watchdog and advocacy group that opposes rent control, urged Attorney General Andrea Campbell’s office to halt the progress of an initiative petition that would replace a statewide ban on the practice with a new law allowing cities and towns to regulate rents, evictions and housing units set to leave the rental market.

In a seven-page legal memo submitted to Campbell’s office, Fiscal Alliance Foundation Chair Danielle Webb argued the potential 2024 question improperly combines multiple topics and wades into territory the Constitution rules off limits.

Article 48 of the state Constitution, which lays out the process for bringing initiative petitions to the ballot, requires measures to contain only “related” or “mutually dependent” topics.

Webb said the proposed ballot question led by Cambridge Rep. Mike Connolly should fail that test because limits on rents and limits on evictions are too different to be considered with a single yes or no vote.

“Regulating rents is legally, practically, and substantially different from regulating evictions. Tenants may be (and often are) evicted for numerous reasons other than — and entirely unrelated to — nonpayment of or disagreements about rent,” Webb wrote. “And it is not difficult at all to conceive of reasonable voters who may support allowing municipalities to regulate rents, but who oppose granting municipalities ‘plenary’ authority to prohibit evictions for reasons entirely unrelated to a unit’s rental value — for example, destruction of property, criminal activity, or any other lawful reason. Indeed, as drafted, the Petition authorizes municipalities to prohibit outright all residential evictions if they so choose.”

Campbell’s office by Sept. 6 must certify or decline to certify all 42 measures newly filed this year. Those decisions are designed to reflect only whether a question fulfills requirements laid out in the state Constitution, not how Campbell or her deputies feel about the policy merits.

Relatedness concerns are common during the initiative petition process. In the previous two-year cycle, former Attorney General Maura Healey declined to certify several proposals because they contained too many disparate topics. The Supreme Judicial Court also tossed a measure — which Healey had certified — affecting worker classification and benefits for drivers on platforms like Uber and Lyft because it improperly mixed issues.

Webb presented Campbell’s office with a second point of contention as well.

She argued that granting cities and towns “plenary power” to regulate rents, evictions and removal of rental units from the market as the question proposes runs afoul of the Constitution’s ban on initiative petitions that infringe on “the right to receive compensation for private property appropriated to public use.”

Webb said local governments setting limits on rent increases would amount to taking private property for public benefits without appropriately compensating both real estate owners and lenders for whom residential rental properties are security interests.

“Given the multibilliondollar value of the Massachusetts rental market, the Petition’s lack of meaningful guardrails for municipalities’ ‘plenary’ authority to regulate rents, and the ‘plenary’ authority of municipalities to restrict (or even prohibit outright) owners from removing their properties from the rental market, the Petition’s economic impact on Commonwealth property owners is clearly intended — by the Petitioners — to be significant, adverse, confiscatory, and uncompensated,” Webb wrote.

While Connolly stressed the committee is working with legal counsel to submit a formal response memo to Campbell’s office, he said Tuesday that supporters “fully anticipated these legal challenges, and we remain confident that our proposal meets all the Article 48 criteria for the Attorney General’s certification.”

He pointed out that the draft ballot question includes a clause declaring that any regulations cannot “deprive an owner of a fair net operating income,” arguing that it “cannot possibly take property without just compensation” because of that language.

“Moreover, we also feel confident this proposal will survive any potential ‘relatedness’ challenges,” Connolly said in a statement. “This is because our proposal presents the voters with a single question: namely, should your municipal government have the power to protect renters in the face of the ongoing housing emergency? Rent, eviction, and fee regulation are all examples of this single, plenary power.”

“Just because our proposal affects more than one statute and has multiple components doesn’t mean our opponents are correct when they attempt to challenge it on relatedness grounds — because in this case, the provisions of the petition are related by a common purpose that fits within the outlines of the SJC’s jurisprudence on this issue,” he added.

Connolly is leading a ballot question committee backing the measure, and he also filed a broader tenant protection bill that continues to idle in the Legislature with little support from top House and Senate Democrats.

Boston Mayor Michelle Wu and the City Council have been seeking approval from state lawmakers to bring rent control back to the capital city. The home rule petition they sent to the Legislature would cap annual rent increases at 6 percent plus the annual change in the Consumer Price Index, with a combined maximum of 10 percent, while exempting newer units, owner-occupied buildings with six or fewer units and the first year of a new tenant’s residence.

Although the ballot question would similarly exempt some cases, it does not suggest any specific rent limits and instead would leave those up to participating communities to decide.

GBH News radio host Jim Braude asked Wu on Tuesday whether she would support the question if it looked similar to her proposal.

“I haven’t seen the language yet, but if so, yes, absolutely,” Wu responded. “I will specify every city’s situation is different. Even though we have put forward really intentionally what would work for Boston — to be clear, how Boston would act if the ban statewide on cities regulating rents in some way, this is the balanced approach we would take — that wouldn’t necessarily work in other cities, either. So it’s not a copy and paste for other cities. We probably need much broader language that just empowers municipalities overall to take the actions that work for them.”