YARMOUTH — Councilors on Aug. 16 postponed a vote on a rental ordinance to iron out conflicting opinions on the legality of the proposal.
Also during Thursday’s meeting, concerns about Councilor April Humprey’s objectivity on the issue were again raised. Councilor Pat Thompson said Humphrey’s actions “could be construed as an abuse of power.”
Councilor Meghan Casey proposed postponing discussions about the ordinance until Sept. 5, which the council passed 4-2. Thompson and Richard Plourde objected.
Last month a petition drafted by Humphrey with input from members of the Yarmouth Tenants’ Association was submitted in support of an ordinance that would establish a Rental Housing Advisory Committee and require landlords to give tenants 75 days’ notice before rents are increased.
According to Town Manager Nat Tupper, the council could have taken one of three actions at the public hearing: adopt the ordinance, send the matter to a Nov. 6 referendum vote or wait up to 30 days to decide which course to take.
During the meeting, Plourde said the council had a fourth option – to kill the proposal if it is deemed unlawful, a measure he discussed with attorneys from the Maine Municipal Association.
“We have the right to determine whether or not a proposed ordinance is lawful,” Plourde said. “If we determine that is it not lawful, we can refuse to enact it (or) send it to voters and under the Town Charter … citizens, if they disagree with that, could petition the council to overrule that.”
Ann Robinson, of Pierce Atwood, who is representing property management company Taymil Partners LLC, said the proposed ordinance is illegal because it exceeds the state’s limit on what municipalities can send to referendum to “those matters which are exclusively municipal and in which the state has no interest.”
Robinson also said the proposal infringes on voters’ first amendment rights and their right to due process, infringes on the right of Taymil Partners LLC to equal protection, and contains inconsistencies and ambiguities that render it unlawful.
Steven Astrove, president and CEO of Taymil, which includes four rental properties in town, previously said the ordinance is part of a “misguided strategy to impose rent control to keep housing costs at below-market rental rates …” and specifically targets Taymil.
Town Attorney Shana Cook Mueller, of Bernstein Shur, in a June 6 email said she had “no concerns with the form” of the proposal. However, she added, “one arguably unsettled question of law … is whether the state attempted to preempt municipal regulation of rental housing” because it mandates a 45-day notice period for rent increases.
Prior to opening public comment on Thursday, Thompson asked Humphrey to recuse herself from the discussion and a vote on the proposal, saying it would be a clear conflict of interest because Humphrey wrote the petition, gathered signatures and “attempted to negotiate” with representatives of Taymil.
“I think that you are no longer unbiased and one could argue that … as a public official, this could be construed as an abuse of power,” Thompson said. “It certainly is a misuse, in my opinion, of your public office and … a breach of the public’s trust.”
According to council rules, a conflict of interest occurs when “a Town Councilor may reasonably be presumed to be motivated by a personal and/or substantial financial interest rather than the public interest.”
Because the ordinance “would not benefit her in any way,” Humphrey said she would not recuse herself from discussion or abstain from a vote.
“A conflict of interest assumes that I would benefit in some way from the outcome of this ordinance and I don’t,” Humphrey said, noting that petitioning for the ordinance was an act of exercising her rights as private citizen.
Casey defended Humphrey’s position, saying that neither of the defined criteria of a conflict of interest “come into play here.”
“When someone becomes a councilor, they don’t give up their rights as a citizen,” Casey added.
During public comment, former councilor David Craig, in turn, questioned whether Thompson had a conflict because she is on the board at the Chamber of Commerce, who, through its executive director, Adrienne Nardi, offered statements opposing the ordinance on Thursday.
Thompson responded by saying she had no involvement in crafting the statement and recused herself from such discussions during board meetings.
As far as “attempted negotiations go,” Humphrey said she requested a phone call or meeting with Astrove to discuss possible amendments to the ordinance.
“I assume you understand that there are still ways for this issue to be negotiated without going to a referendum …” Humphrey wrote in an email to Elizabeth Baldacci, who handles public relations for Taymil. ” I just want to make sure you, and Mr. Astrove understand that negotiation is an option.”
Humphrey said she also spoke with Southern Maine Landlord Association President Brit Vitalius, who is a resident of Yarmouth, but worked on Portland’s rental ordinance. Vitalius has in the past cautioned Yarmouth around adopting a similar ordinance, warning that doing so would cross into the domain of what the state already mandates.
Humphrey said she discussed two potential amendments to the proposed ordinance, which she also offered during Thursday’s meeting, which define the scope of the committee and allow representatives from out of town to join.
“They both (Astrove and Vitalius) raised reasonable concerns, some of which the tenants shared. I reached out to both of them after (previous) meetings in an attempt to find out whether there was sufficient common ground to work together to pass an ordinance landlords and tenants would both support,” Humphrey said.”… I still do. Ultimately we find the best solutions when all parties work together.”
Still, Astrove said he was unsure if the amendment process Humphrey described was permissible.
“Even if it is, it struck me as risky and, in my opinion, inappropriate,” Astrove said. “… Councilor Humphrey’s attempted negotiation with me, confirmed my sentiment that Taymil was the sole target of the petition. And that the petition was being used as a hammer to get us to agree to something less objectionable behind closed doors or be subjected to referendum and continued public harassment and misrepresentations of our business practices.”
However, Humphrey said she felt the conversations were very appropriate, and what would be expected of any legislator or lawmaker trying to find common ground with other parties.
Robinson said the time for amending or modifying the proposed ordinance has passed and “the council cannot amend it on (its) own.” Tupper, on the other hand, said he had not been asked to seek legal counsel on the matter but thought “the council has the authority to amend or even repeal a petitioned ordinance after it is adopted.”
“It was just my attempt to come together to see if we could find a common solution,” Humphrey said.
The ordinance would only apply to landlords with 10 or more units. Because of this, Astrove has said the ordinance seems to target Taymil. Bartlett Circle and Yarmouth Falls also have ten or more rental units.
Last October, Humphrey presented the council with a similar proposal after receiving complaints about rent increases from tenants at Taymil’s four properties: Yarmouth Pointe, Yarmouth Green, Yarmouth Place and Yarmouth Landing. The proposal was ultimately rejected.
Astrove said Taymil has always given 75-days’ notice of rent increases, but informed the council on Thursday that they recently updated its policy to explicitly require this.
Humphrey said applying the ordinance to landlords with 10 or more units came out of a conversation with Tupper and the town attorney and was modeled after the town’s Solid Waste Ordinance which defines “commercial residential apartments” as complexes of 10 units or more.
“The 10 unit threshold was not arbitrary,” Humphrey said. “It already exists in the town code and I was simply being consistent with other ordinances.”
Tupper said the council must vote next month on whether to send the question in time for inclusion on the November ballot. If they don’t make a decision by then, Tupper said they could send it to voters in June.