Rent Control Protections Upheld Twice by Hoboken Voters

Rent Control Protections Upheld Twice by Hoboken Voters
Hoboken Fair Housing Association
November 15, 2013

Hoboken, New Jersey voters have decisively opted to maintain tenant protections in the November 5, 2013 election, exactly as they had in the November 2012 election. In spite of a well-funded opposition and concerns about vote-by-mail irregularities in both elections, the "NO" vote (upholding tenant protections) won by 122 votes, and by 52 votes last year.

These victories have a complicated history that began in the summer of 2012, when a developer/real estate investment group, Miles Square Taxpayers Association ("MSTA"), sponsored a petition-drive initiative to place a proposal on the November 2012 ballot as a local question.

The initiative allowed for permanent exemption from rent control all properties with 4 units or less whenever the current tenant vacated a unit voluntarily or by court-ordered eviction. For buildings with 5 or more units, the landlord would get complete vacancy decontrol (setting rents at whatever s/he wants) for each new tenant.

For the 2012 election, weeks in advance of the ballot printing, the Hoboken Fair Housing Association ("HFHA") members urged the city to change the misleading language of the initiative's ballot question, which read:

"Shall the city of Hoboken continue annual rental increase protections for current residents of rent controlled properties but allow property owners to negotiate rents for vacant apartments and exempt buildings with one-to-four units and condominium units from the rent leveling ordinance by adopting the proposed amendment to Chapter 155 of the Code of the City of Hoboken?”

HFHA contended that this language was an attempt to confuse the voter. Hoboken Mayor Dawn Zimmer agreed and filed an Order to Show Cause in a local court, requesting a change to this language. At the court hearing, when called to the stand, the Hoboken City Clerk stated that there had been internal discussions about the interpretive statement. Rather than make a determination based on a reading of the actual proposed language, the judge dismissed the Order to Show Cause, and the ballot language remained the same.

In the November 2012 election a record number of voters cast ballots on this public question, and 22 days later, after email and fax ballots were counted, tenants prevailed by 52 votes, winning the election and upholding tenant protections in Hoboken. However, fifteen MSTA-friendly registered voters filed an election contest with the Hudson County Superior Court against the Lt. Governor, who, in the aftermath of Hurricane Sandy, had issued emergency directives for the 2012 election. Also named were the Hudson County Board of Elections, the Superintendent of Elections and the City of Hoboken. They claimed that some Hoboken voters had been "disenfranchised" due to the storm. Unable to afford legal counsel, HFHA campaign manager, Cheryl Fallick, attempted to intervene in this contest as a pro se litigant but was denied this right because, as trial court judge Christine Farrington claimed, allowing Ms. Fallick to intervene would slow down the process, and that the case was being adequately represented by the named defendants. The judge claimed that Ms. Fallick was merely a single voter, and therefore did not have standing, in spite of Ms. Fallick being a tenant in a rent-controlled building, a member of Hoboken’s rent control board, and a leading local tenant activist.

After Fallick was denied intervention, the MSTA-friendly opponents submitted an entirely new brief to the court, containing an entirely new argument for why the election result should be overturned. This new brief was based on a list of 114 allegedly disenfranchised Hoboken voters that had cast their votes provisionally, outside of Hoboken, due to displacement from Hurricane Sandy. The brief argued that these 114 provisional voters should have been given a ballot containing the local Hoboken questions, regardless of where they voted, and that, had they been given a local Hoboken ballot, the election result could have changed. The trial judge agreed, and DE-certified the election.

After the verdict, Ms. Fallick (now represented by Renee Steinhagen of public-interest law group NJ Appleseed and co-counsel Flavio Komuves of Zazzali, Fagella, Nowak, Kleinbaum & Friedman filed a motion to intervene and was granted status as a "post-decision" intervenor. Ms. Steinhagen then obtained the list of 114 "disenfranchised" voters, and Ms. Fallick and other members of HFHA were finally able to see that on its face the list was suspect: it contained five duplicate names, reducing its number to 109.

Ms. Fallick therefore filed an Open Public Records Act ("OPRA") request, asking the Board of Elections to provide copies of the affirmation statements for each of these 109 voters who had cast provisional votes. Affirmation statements must be filled out by every provisional voter at the polls on Election Day. This statement certifies the voter's current address (and to a previous address in the event the voter has moved). The Board of Elections provided only 82 such statements. A quick review of these documents, however, amply demonstrated that the majority of these "disenfranchised" Hoboken voters had no longer lived in Hoboken on Election Day, and therefore were not entitled to vote on the Hoboken local ballot question. HFHA members contacted other voters on the list (for whom there were no affirmation statements) and obtained certifications from many of them that they either did not live in Hoboken on Election Day or, in some cases, had actually voted in Hoboken.

Ultimately, HFHA determined that at most there were 36 individuals that might have been displaced Hoboken voters. Ms. Fallick’s attorneys filed a motion to supplement the record with this new evidence that demonstrated that the "evidence" by which the election had been overturned was not credible. The court denied this motion.

Additional motions on both sides followed as MSTA litigants tried to get the question placed on the October 16th ballot (a special election scheduled by Gov. Christie after the death of Sen. Frank Lautenberg) before the appeal of the trial court decision was even heard.

Here, Fallick's attorneys prevailed, and the ballot question was *not* included on the October ballot. On September 10th, Ms. Fallick’s appeal was heard before the Appellate Court. Her appeal was denied the next day, and the ballot question was placed on the Nov 5, 2013 ballot.

MSTA proceeded with a deceitful and well-funded campaign, with multiple mailers depicting Hoboken as a blighted town and implying that unless citizens voted "yes" this blight would happen to Hoboken. Their signs were everywhere and stated in huge print, "Keep Rent Control..." (but, in smaller print) "Under Control."

The under-funded HFHA campaign consisted of one postcard mailer, 2 robocalls and lots of street canvassing and old-fashioned door-to-door campaigning, along with social-media messages, letters to the editor and a music fundraiser where local musicians donated their talent.

On election night it was erroneously reported in online media that the initiative had passed. The final results, however, are that the initiative failed by 122 votes, and tenant protections remain in full force and effect.

HFHA has expressed gratitude to all Hoboken voters for defending tenant protections and the for maintaining the will of the people ... AGAIN, in light of the courts having failed them in 2012. MSTA executive director Ron Simoncini, is already quoted in the online press HobokenNow as stating that they will not accept the final tally.

For additional information with links to prior articles, see