Thursday, December 19, 2013

Rental Permit Bylaw Upheld

Attorney General approves a bevy of Amherst Town Meeting bylaws

The road to the most important legislation passed by Town Meeting in over a generations has been rocky to say the least.  The Rental Registration Bylaw was bitterly opposed leading up to Town Meeting last Spring where it passed by a surprisingly w-i-d-e margin.

According to the state's Top Cop, "We acknowledge the letters and emails sent to us opposing the amendments adopted under Article 29 (Rental Registration Permit).  Interestingly the Attorney General's office goes on to say, "While we cannot conclude that any of these arguments furnish a basis for disapproval of the by-law, these letters and materials have aided our review."

One section of the bylaw states a registration form should be submitted to the "appropriate Town office."  Which in this case is the Principal Code Official (Rob Morra, Building Commissioner).  The AG has suggested the town clarify that section of the bylaw to identify the Principal Code official as the rental czar who issues permits, and can issue exemptions.

Apparently landlords had problems with the section of the bylaw that requires tenants to be made aware of the provisions of the new Rental Bylaw and inspection system, and that a copy of the lease be provided to the town.   The charge was that this is a violation of the "prohibition against regulation of a private civil relationship,"  which was used to strike down "rent control."

The AG found that section permissible because it is specifically limited. The boiler plate language in the bylaw clearly states: "Subject to and as limited by the Constitution of the Commonwealth."  So if a landlord finds something in the permit bylaw requirements that violates the state Constitution, then they can safely ignore it.

The new bylaw also requires the Select Board to appoint a Rental Appeals Board, to act as ombudsmen to help resolve issues amicably.  

Is the $100 permit fee a tax and therefor illegal because a municipality "has no independent power of taxation"?  The Attorney General thinks not. "Fees are collected not to raise revenues but to compensate the governmental entity providing the services for its expenses."

And in this case the Building Department has to hire a new full-time building inspector and administrative assistant to help oversee the program.  Amherst has identified 1,570 rental properties with a total of 5,265 individual rental units. That's a lot of oversight!

As of yesterday the Building Commissioner has received 160 applications (85% of them filed via the Internet) and issued permits for 56.  Or just a tiny bit over 10% of the rental properties in town. 

The law takes effect January 1st.

Town may want to think about stepping up PR outreach effort


Dr. Ed said...

US & MA Constitutions also prohibit Ex Post Facto laws which, arguably, would preclude this applying to any *existing* lease.

Of course there is that little part about "Bills of Attainer" which is what this truly is -- it's directed at rentals by a certain group of people (UM Students) and not rentals in general. (It will be the exceptions granted that lead to the successful challenge of this.)

Think of it this way -- imagine an ordinance that only applied to landlords who rented to tenants who had children. Imagine that if you rented to someone who didn't have children, you could get an exemption from the $100/year and the rest. Problematic????

And what the leftists running the UM student govts won't understand is that the Town of Amherst just raised everyone's rent by $100. Don't think this won't be passed on to the tenants -- the biggest issue may be with existing leases where it can't be.

Anonymous said...

And the dark side of me wonders what happens if the landlords, en masse, simply leave the business on Jan 1st. A few thousand college kids come back a couple weeks later to find that they don't have a place to live anymore, that the locks have been changed and that no one knows how to contact the human being who actually owns the property.

A good number are likely "upside down" and as many have the buildings owned by corporations anyway, they could just walk away.... Just walk away.....

Think that might make something of a mess? I do....

Larry Kelley said...

About as likely as an asteroid strike taking out the entire eastern seaboard on January 1st.

With average rents in Amherst topping $10,000 per year I don't think the $100 year registration fee is gonna break the bank for landlords.