Report Excerpt:Voted (5-0). The Board heard extensive comments from the amendment proponent, as well as the public. The proponent noted that this amendment would be the first of its kind in the Commonwealth and was intended to address pet restrictions impeding the availability of housing. The proponent further noted that the amendment was intended to address large, commercial residential buildings, such as apartment complexes and condominiums, because the proponent believed that the prohibitions on pets are typically not an issue in smaller residential properties, such as two- or three-family homes. Further, the proponent stated that the amendment was intended to address the disparity in permitted pet ownership, but that 75% of tenants renting residential apartments currently have pets.
Mr. Helmuth asked the proponent to articulate what the bylaw would seek to prohibit, to which the proponent acknowledged that condominiums could be permitted under the bylaw to issue reasonable restrictions on pets. Mr. Helmuth inquired about how the bylaw would be enforced and asked the proponent to consider what language could be added to address the practice of enforcement.
The Board also heard lengthy comments regarding the legality of the amendment.
The proponent advanced arguments that California is considering a similar bill (AB2216), and that federal housing law permits pets in federally-funded housing. Mr. Diggins inquired about the pending California legislation, and the proponent noted that presently in California, pets are only permitted in state-funded housing. Mr. Diggins further inquired about the scope of the proposed bylaw and raised questions regarding the rental market and how it has previously and may continue to react to the issue of pet ownership.
Mr. DeCourcey observed that reasonable accommodations permit assistance animals in housing under the federal Fair Housing Act and that would apply to the instant matter. The proponent again advanced arguments about California’s legislation and its applicability to the bylaw amendment, but Mr. DeCourcey noted that the bill is currently pending in the legislature and has not been enacted. Mr. DeCourcey further noted that while the bill may be instructive, Massachusetts has its own laws, including a state statute that permits condominiums in Massachusetts to prohibit pets. Further, the proponent again advanced an argument that pets are permitted in state-funded housing in California, to which the Board then noted that federal housing and antidiscrimination laws preempt any state or local laws in conflict.
Ms. Mahon observed that at the core of the discussion was whether the Select Board and Town Meeting are the appropriate public bodies to address the issue advanced by the proponent as a result of the discussion regarding the inability to create new rights at the local level. Ms. Mahon also expressed that the proponent acknowledged that the bylaw amendment was untested and needed to be addressed by the appropriate authority.
A discussion ensued regarding whether the Select Board had the authority to act on the bylaw, to which the Board agreed that the creation of new rights could not be addressed at the local level, mooting the need for the bylaw to be reviewed and opined on by the Attorney General.
The Board heard public comments on the bylaw, which received strong support on a policy level. However, the Board noted that the legal issues presented by the bylaw amendment needed to be further examined.
The Board heard further comments regarding the bylaw’s conflict with private contracts and the bylaw’s inability to add pet ownership as a protected class protected under federal law. The Board also heard comments on the applicability of federal housing laws to private housing, and that pets are expressly omitted from the definition of assistance animals under the Fair Housing Act. The Board further heard comments that federal and state housing and discrimination laws create private rights of action that tenants can pursue if they are experiencing discrimination in housing. Further, the Board heard comments that even if the law was unsettled on the prohibition of pets in housing, no affirmative right can be created in the absence of a law expressly creating such a right. In addition, the Board heard comments on the constitutional principles of freedom of contract, which include rental and condominium agreements.
Mr. Hurd noted that there is a market for tenants with pets to rent housing, as Mr. Diggins suggested, and that the legal implications could not result in favorable action on the bylaw amendment. Mr. Hurd further noted that no other municipality has enacted a similar law in Massachusetts and the untested nature of the bylaw amendment’s language precluded him from acting favorably on it. Mr. Hurd then moved for no action, to which Ms. Mahon seconded.
Ms. Mahon noted that more work should be done on the bylaw amendment and the Board was not the best forum to address its current form. Mr. Diggins agreed that the bylaw amendment needed to be further examined, but acknowledged the need for legislation to address the policy issues raised in the amendment. Mr. Diggins urged the Board to articulate its opinion on the amendment to provide guidance to Town Meeting.
Mr. DeCourcey emphasized the need for robust commentary in the Board’s draft votes and comments to guide Town Meeting on this matter. Mr. DeCourcey noted the potential legal conflicts with the amendment and state statutes permitting pet fees in certain rentals, condominium regulations, and that certain state and federal laws would preempt the actions contemplated in the amendment.
Mr. Helmuth noted the value of the process and robust discussion is to identify dimensions for Town Meeting to receive informed advice and guidance on the amendment. Mr. Helmuth further noted the Board appreciates the issue but needs to balance the rights of owners, tenants and landlords.
Mr. Hurd moved that no action be taken.