Can a Lease Restrict Free-Speech Rights? It Might at 300 Lake Street

The residents of 300 Lake Street on the Burlington waterfront have been eerily silent about the city’s proposed new waterfront skatepark. Some critics of the plan have speculated that it is because occupants of the 40-unit apartment building are all renters; they’re not concerned about the skatepark’s impact on home prices.

But there’s another possible reason for the tenants’ silence on the issue. Many of those living in the $7.2 million building — constructed with a mix of public and private funds — are subject to leases that appear to forbid them from exercising their free-speech rights in regard to waterfront development.

“The tenant acknowledges, understands and accepts that this housing is located in an underdeveloped part of the Burlington waterfront and that the City of Burlington plans to continue development of the waterfront for the benefit of all Burlington residents,” reads a provision in the lease signed by the original tenants of the seven-year-old building. “Tenants are prohibited from inhibiting or discouraging the general public’s right to use and enjoy public and private development now existing and hereafter created in connection with the project.”

To Allen Gilbert, director of the Vermont chapter of the American Civil Liberties Union [1], “the spirit of this wording was to tamp down criticisms of subsequent actions” relating to waterfront development. “If the government is essentially telling people they can’t express an opinion on public policy issues, including development on the waterfront, that would seem like a restriction on First Amendment rights.”

Tenants such as Michael Clark resent the provision as a gag rule. He recalls the property manager of 300 Lake Street “telling me when I signed the lease that we don’t have the right to oppose anything the city wants to build.” Clark adds, “the threat of what they say when you sign the lease is enough for me not to get involved because I don’t want to get an eviction notice.”

Judy Greensmith, who has the same stipulation in her lease, calls it “unreasonable.” She argues, “I have a right to live here and I also have a right to a say about what’s going on around us.”

The provision was news to Alison Lockwood, owner of a nearby townhouse, who says she’s found it difficult to engage residents at 300 Lake Street about some issues related to uses of the waterfront. “I’m shocked that the City of Burlington would muzzle people and deny them their First Amendment rights,” she declares.

But is it “the city” that’s behind the lease’s wording? That’s a crucial question in assessing the legality of the provision, Gilbert notes. He points out that private landlords are entitled to include restrictive wording in leases with their tenants.

Melinda Moulton, for example, says she requires all 50 or so commercial tenants of her waterfront buildings to agree not to oppose her Main Street Landing company’s plans for renovations or development. “The last thing we want is for a tenant in our building to oppose work we need to do,” Moulton says. “They need to not be obstructionists.”

Renters in her properties haven’t objected to the wording of their leases, nor have they tried to block any of the half-dozen or more city permits that Main Street Landing seeks annually, Moulton notes. “There’s a cooperative spirit,” she says. A couple of tenants did, however, express misgivings about the flying monkeys she put on the roof of Union Station, Moulton recalls. “They didn’t understand the purpose, but no one tried to prevent it.”

As for 300 Lake Street, the public-private lines are a bit blurry.

Although the land 50 yards northeast of the Moran Plant is city-owned, the building itself belongs to the Champlain Housing Trust [2]. This private, nonprofit entity uses government and corporate investors’ money to develop homes for low- and moderate-income Vermonters. Formed in 2006 through a merger of the Burlington Community Land Trust and the Lake Champlain Housing Development Corp., the trust manages, or “stewards,” nearly 2000 apartments and owner-occupied homes in northwestern Vermont.

The “ground lease” that the trust signed with the city includes a softer provision related to tenants’ responses to proposed waterfront development. It says “all leases of dwelling units in the project shall acknowledge and provide for the City’s right to continue development in the area surrounding the project.” The trust’s agreement with the city goes on to suggest that tenants’ leases should require that a renter “acknowledges and understands” the city’s development plans.

Chris Donnelly, the trust’s director of community relations, and Brian Pine, a housing specialist in the city’s Community and Economic Development Office, both say the leases for tenants of 300 Lake Street contain a “disclosure” of the city’s intentions and not a “prohibition” restricting tenants.

That may in fact be the case for leases signed by some of the residents who moved into the building during the past five years. The language in those documents echoes the gentler clauses in the trust’s ground lease with the city. A few leases, moreover, do not contain any wording at all regarding the city’s development plans. Donnelly says 31 of the building’s 40 units do not have conditions discouraging tenants from opposing development. And the trust will not include such stipulations in future leases, he says.

Both Donnelly and Pine say they were unaware of the seemingly threatening language in the original leases.

Efforts to discourage 300 Lake Street residents from trying to block private and public waterfront construction have their origin in a city council debate 10 years ago. Councilors were at odds over whether that project should be built.

Opponents led by then-councilor Andy Montroll argued that the addition of 40 sets of residents would complicate the city’s ability to establish or expand public amenities in the area north of Waterfront Park. As Donnelly observes, “the way the appeals process works, it doesn’t take a lot of intervention to halt something.” The reasoning of many city officials, he adds, was that “the waterfront is for everyone in Burlington, not just those who live there.”

Montroll recalls that his “initial thought was to develop the public uses first, then bring people there to live.” In the end, the 300 Lake Street project was approved by an 8-6 council vote that reflected “an agreement to let people live there now but make sure they don’t impede” the city’s development plans, Montroll says. He still voted against the project, however.

Then-mayor Peter Clavelle pushed hard for construction of the project. It was, Pine notes, “the realization of the long-held goal of a mixed-income waterfront.” At the same time, however, virtually no development — public or private — has taken place on the waterfront since the council’s move to dissuade 300 Lake Street tenants from impeding development.

It’s also the case that even the most restrictive version of the lease has not prevented some of its signers from speaking out on waterfront issues. Ann Livingston, one of the original tenants, recently signed a petition circulated by Lockwood suggesting that the city has failed to abide by the noise and public access provisions of an Act 250 permit covering festivals held in Waterfront Park.

“I don’t think I’ll get evicted for signing that,” Livingston says with a smile.

It is hard to imagine the Champlain Housing Trust objecting to a tenant speaking out on waterfront issues, Pine says. And there’s no record of any such move on the part of the trust, Donnelly adds.

But Livingston nonetheless views even an unenforced restriction on tenants’ rights as “annoying.” The ACLU’s Gilbert meanwhile suggests, “If somebody were to sue over this, it would be a really complicated case.” The fact that some of the trust-tenant agreements contain a “vague and overly broad” prohibition would not augur well for the trust’s defense, Gilbert cautions. Judges tend to find against a defendant in such situations, he notes.