BATTLE AT TWIN RIVERS
AARP AMICUS BRIEF
COURT OF NEW JERSEY
On Appeal from a Final Judgment of the Superior Court of New Jersey, Appellate Division
Harold H. Kestin, P.J.A.D.
Steven L. Lefelt, J.A.D.
Jose L. Fuentes, J.A.D.
OF AMICUS CURIAE AARP
v. Enclave Condo. Ass’n,
N.J. Super. 229, 234 (App. Div. 1999)....
for a Better Twin Rivers v. Twin Rivers Homeowners Ass’n,383
N.J. Super. 22(App. Div. 2006)....
Taxpayers and Ratepayers Association v. the Galaxy Towers Condominium
N.J. Super. 309 (App. Div. 1996)....
re Adoption of N.J.A.C. 13:38-1.3(f),
N.J. Super. 536 (App. Div. 2001)....
Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp.,138
N.J. 326 (1994).... 15
v. Briarwood Condominium Association,
N.J. Super. 422 (App. Div. 1994)....
N.J.S.A. 46:18B-14.... 8
Bill of Rights for Homeowner Associations: Basic Principles of Consumer
Protection and Sample Model Statute,
available on www.aarp.org/research/legal
Elasser, “Out of the Shadow Government,” Sacramento News and Review,
Jan. 30, 2003.....
Garreau, Edge City: Life on the New Frontier
Hall Grumet, “Three a Crowd, Condo Group Rules,” St. Petersburg Times,
Nov. 18, 2003, at 1.....
Hyatt, Common Interest Communities: Evolution and Reinvention, 31 J.
Marshall L. Rev. 30 (1998).... 11-12
Jerome, et al, “Loathe Thy Neighbor,” People, Oct. 4,
2004, at 123.... 9
J. Kennedy, Residential Associations as State Actors: Regulating the Impact
of Gated Communities on Nonmembers, 105 Yale L.J. 761 (1995)....
McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private
(Third) of Property (Servitudes)
§ 3.1.... 20
Rishikof & Alexander Wohl, Private Communities or Public Governments:
The State Will Make the Call, 30 Val. U. L. Rev. 509 (1996)....
Revenue, Finance and Appropriations Committee Statement No. 2869, L.
Advisory Council on Intergovernmental Relations, Residential Community
Associations: Private Governments in the Intergovernmental System? 18
INTEREST OF AMICUS CURIAE AARP
AARP is a nonpartisan, nonprofit membership organization of more than 36 million persons age 50 and older, including 1.3 million members who reside in New Jersey. Through education, publications and advocacy in cases such as this one, AARP seeks to enhance the quality of life for all by promoting independence, dignity and purpose. AARP endeavors to ensure that Americans age 50 and older have affordable housing options that enable them to age in place and to ensure that their home equity is preserved.
An analysis of the Census Bureau’s American Housing Survey by AARP’s Public Policy Institute found that (1) 46 percent of homeowners of single-family community associations are over the age of 50; and (2) 56 percent of homeowners of condominium and co-op communities are over the age of 50. In addition, a significant proportion of “retirement communities” are governed by community associations.
New Jersey, approximately one in eight individuals is governed by a community
association. Pa235. The large
number of community association residents in New Jersey (and throughout the
country) has given rise to a substantial number of complaints in which
association residents state that their basic rights -- including expressive and
associational rights -- have been infringed or abridged by associations.
is deeply concerned about these developments, and, as a result, has engaged in
extensive public policy research concerning community associations.
For example, AARP recently published A Bill of Rights for Homeowner
Associations: Basic Principles of Consumer Protection and Sample Model Statute
(available at www.aarp.org/.../2006 15
homeowner.html). AARP’s intent in publishing this Bill of Rights
was to provide information and to foster a discussion between homeowners, community associations, and states and localities concerning the rights of
homeowners, although the views expressed do not necessarily represent official
policies of AARP.
believes that fair and balanced procedures for information sharing, governance
and dispute resolution promote healthy interaction between residents and their
associations. In turn, these recommended procedures help to avoid conflict when
possible, and to resolve conflict equitably when it occurs, thus making for
better, more livable communities.
At the core of this appeal is the principle that community association residents have certain basic rights -- including expressive and associational rights -- and that these rights are of constitutional dimension. Consistent with its overarching goals of strengthening livable communities and of protecting the rights of older homeowners, AARP seeks to assist this Court with respect to the important issues of public policy and issues of constitutional dimension that are raised by this appeal.
DECISION OF THE APPELLATE DIVISION BELOW RESTS NOT ONLY ON THE WELL-ESTABLISHED
DECISIONAL LAW OF THIS STATE, BUT ALSO ON (1) CRITICALLY IMPORTANT DATA AND
PUBLISHED REPORTS THAT ARE CONTAINED IN THE COMPREHENSIVE RECORD ON THIS APPEAL;
AND (2) OTHER PUBLISHED MATERIALS OUTSIDE OF THE APPELLATE RECORD, INCLUDING
AUTHORITATIVE SECONDARY LEGAL SOURCES AND THE CONSIDERED VIEWS OF MANY
DISTINGUISHED LEGAL SCHOLARS
The substantial legal
foundation underlying the decision of the Appellate Division below includes not
only the well-established decisional law of this State but also the
comprehensive record on this appeal, which, among other things, includes
numerous reports and studies that are pertinent to the legal issues here
presented. We need not reiterate all of the important constitutents of this
extensive record. Instead, we
highlight what we regard as some of the key elements contained in this record.
We also bring to this Court’s attention certain material extrinsic to
the record on appeal (and which are well within the scope of judicial notice),
including pertinent law review articles and scholarly commentary.
The Hannaman Report
The Appellate Division below -- in applying the constitutional principles here at issue to the Twin Rivers community association -- critically relied on a certain published report prepared by Edward Hannaman. See Twin Rivers, 383 N.J. Super. 22,36 (App. Div. 2006) (citing Edward R. Hannaman, State and Municipal Perspectives - Homeowners Associations, presented to Rutgers University Center for Government Services, March 19, 2002) (Pa231-241) (hereafter “the Hannaman Report”). Mr. Hannaman was, at the time of the report, the “association regulator” in the Bureau of Homeowner Protection of the New Jersey Department of Community Affairs (DCA). Pa231.
The Appellate Division’s reliance on the Hannaman Report is appropriate and warranted, in light of Mr. Hannaman’s key role in the state agency charged with monitoring the complaints of residents of New Jersey community associations. C.f. In re Adoption of N.J.A.C. 13:38-1.3(f), 341 N.J. Super. 536, 442-43 (App. Div. 2001) (noting that courts “accord considerable weight and deference to ...[an] agency’s expertise”). In particular, Mr. Hannaman was uniquely situated to understand and grasp the practical difficulties faced by New Jersey community association residents, since Mr. Hannaman himself was employed by the State of New Jersey to help address and resolve those difficulties.
The Hannaman Report is notable for its candor and its breadth. For example, Mr. Hannaman states: “It is obvious from the complaints [to DCA] that that [home]owners did not realize the extent association rules could govern their lives.” Pa237. Mr. Hannaman goes on to set forth at length numerous examples of abuse of homeowner rights by New Jersey community associations, and the ineffectual and inadequate safeguards that presently exist to prevent and remedy such abuse. As to this point, the following extended quotation is instructive:
... the frustrations posed by the duplicative complainants or by the
complainants’ misunderstandings are dwarfed by the pictures they reveal of the
undemocratic life faced by owners in many associations. Letters routinely
express a frustration and outrage easily explainable by the inability to secure
the attention of boards or property managers, to acknowledge no less address
their complaints. Perhaps most alarming is the revelation that boards, or board
presidents desirous of acting contrary to law, their governing documents or to
fundamental democratic principles, are unstoppable without extreme owner effort
and often costly litigation.
presented by complainants run the gamut from the frivolous (flower restrictions
and lawn watering), to the tragically cruel (denial of a medically necessary air
conditioner or mechanical window devices for the handicapped),
to the bizarre (president having all dog owners walk dogs on one owner’s
property, air conditioners approved only for use from September to March.
Curiously, with rare exceptions, when the State has notified boards of minimal
association legal obligation to owners, they dispute compliance. In a disturbing
number of instances, those owners with board positions use their influence to
punish other owners with whom they disagree. The complete absence of even
minimally required standards, training or even orientations for those sitting on
boards and the lack of independent oversight is readily apparent in the way
boards exercise control.
have disclosed the following acts committed by incumbent boards: leaving
opponents’ names off the ballots (printed up by the board) by “mistake”;
citing some trivial “violation” against opponents to make them ineligible to
run; losing nominating petitions; counting ballots in secret -- either by the
board or their spouses or someone in its employ -- such as the property manager
deciding to appoint additional board members to avoid the bother of elections;
soliciting proxies under the guise of absentee ballots; holding elections open
until the board obtains the necessary votes to pass a desired action; declaring
campaign literature by their opponents to be littering; using association
newsletters to aggrandize their “accomplishments” but forbidding contrary
opinions by owners ...; routinely refusing to release owner lists to
candidates-despite the board mailing owners (at association expense) their
positions (it has become routine for the State to refer candidates to the
municipal tax office to obtain the names of their fellow association owners);
rejecting candidate platforms or editing them to conform to the board’s idea
of fair comment which includes eliminating any criticism at the board.
Hannaman Report is a scathing indictment of the status quo system
of community association regulation in New Jersey. The Report might be easy to
dismiss if the author were a homeowner-rights advocate or interest group. In
that event, it would be all too easy to characterize the Report as biased or
untrustworthy. But, in light of the fact that the Report instead constitutes a
published statement of the State of New Jersey’s “association regulator”
entrusted with oversight of community associations in this State, the Report
obviously assumes heightened significance and carries considerable weight.
import of the Hannaman Report is this: in light of the fact that private
community associations in this State have assumed powers and functions that
historically were carried out only by public entities –- as expressly
found by the Appellate Division below as well as by a task force of the New
Jersey Assembly -- then the rationale for application of constitutional
principles to protect basic homeowner rights in New Jersey becomes even more
necessary and compelling, in view of the pervasive infringements and
inadequate safeguards of basic rights detailed in the Hannaman Report.
B. The Report of the New Jersey Assembly Task Force to Study Homeowners’ Associations
years ago, the New Jersey Assembly established a Task Force To Study
Homeowners’ Associations, which was charged with making findings and
recommendations “concerning the functions and powers of homeowners
After nearly two years of study, the Task Force prepared its final report
setting forth a blueprint for reform of the legal regime governing community
associations in New Jersey. Eight years after the publication of the Task Force
Report, not a single one of its legislative recommendations has been enacted.
its Final Report, the Task Force put forth the following key finding:
law provides ...[homeowner] association boards great flexibility in their
rulemaking and administrative powers... [T]hese associations have traditionally
been treated as corporations managing a business.
Some modifications of this model appears to be necessary to address
the increasingly governmental nature of the duties and powers ascribed to the
homeowners association board.
2006, the “model” remains unmodified. New
Jersey community associations perform more governmental functions then ever
but remain subject to ”flexibl[e]” standards that are at wide variance with
the necessarily more stringent standards associated with the exercise of duties
and power of a “governmental nature.” Ibid.
C. The experiences of community association residents in
other States, as reported by AARP and by the popular press
the lack of adequate safeguards for the rights of community-association
residents is not a circumstance that is unique to New Jersey.
On the contrary: AARP’s publication, A Bill of Rights for Homeowners
Associations: Basic Principles of Consumer Protection and a Sample Model Statute,
details the abuses of power suffered by community-association residents in many
other states. See www.aarp.org/A Bill of Rights, at 4-8. The
examples of resident abuse set forth in the AARP report are similar to the
experiences recounted in the Hannaman Report.
examples abound, in New Jersey and elsewhere, of the abridgement of basic rights
of older residents of community associations. Thus: a Florida community
association fined an 89 year-old widower for having an unauthorized “social
gathering” when he was joined on his front lawn by two friends to chat. See
Bridget Hall Grumet, “Three
a Crowd, Condo Group Rules,” St. Petersburg Times, Nov. 18, 2003, at 1.
A California community association officially warned a 51 year-old
grandmother of an association rule violation after she was seen in front of her
home kissing a date good-night. See David
J. Kennedy, Residential
Associations as State Actors: Regulating the Impact of Gated Communities on
Nonmembers, 105 Yale L.J. 761, 763
many community associations have denied or abridged the rights of older and
disabled residents to use medically necessary equipment and services. See,
e.g., Brian Elasser,
“Out of the Shadow Government,” Sacramento News and Review, Jan. 30,
2003 (describing a community association board’s refusal to plow a
private street to accommodate a resident’s physical disability because some
board members wanted to ski and snow board on the street);Richard Jerome, et
al, “Loathe Thy Neighbor,” People, Oct. 4, 2004, at 123
(describing a community association board’s denial of a wheelchair-bound
resident’s access through the front door of the condominium by reason of the
board’s concern that the wheelchair might damage the front door). As to
reported decisions involving the rights of older and disabled New Jersey
residents of community associations, see, e.g., Berner v.
Enclave Condo. Ass’n, 322 N.J. Super. 229, 234 (App. Div. 1999); Gittleman
v. Woodhaven Condo. Ass’n, 972 F. Supp. 894, 900 (D.N.J. 1997).
extensive public policy research concerning community associations revealed that
the basic rights of older residents are often subject to abuse by their
community association. The constitutional rights and remedies at issue in
this litigation are not inconsistent with -- but rather are complementary to
-- the statutory rights that would be secured by AARP’s proposed bill of
rights for community-association residents.
D. A review of the
legal literature discloses that many distinguished legal commentators and scholars have strongly advocated the application of
state constitutional provisions to community associations
The nationwide trend toward community association governance as an
alternative means to provide traditionally municipal functions and services has
led many distinguished scholars and commentators to call for heightened judicial
scrutiny of community associations, including application of state
constitutional protections to those affected by the actions of community
associations. For example, Wayne Hyatt, a widely regarded scholar on the law of
community associations, has offered the following view on the application of
state constitutional provisions to community associations:
conclusion [of some commentators] is that in the absence of unusual
circumstances or perhaps an emotionally driven decision, the United States
Constitution does not apply in common interest community situations today. However,
state constitutions can and do apply in numerous situations. In fact,
state courts and constitutions may be the appropriate arena for resolution of
issues often characterized as constitutional. In a recent case, the New
Jersey Superior Court found a violation of free speech rights under the state
constitution and overturned a condominium’s regulation regarding distribution
of literature [citing to Galaxy Towers in a footnote].
The United States Supreme Court in Pruneyard Shopping Center v. Robins
made clear that a state’s constitution might provide protection for an
individual’s activities even when the federal constitution would not, and this
protection does not constitute a taking.
There are situations both in existing association operation and in
evolving activities that could give rise to application of the United States
Constitution but for the absence of state action. These might include community
building and outreach, privatization, closer relationships with local
government, the assumption of responsibilities because local government mandates
that assumption, and a wide variety of other activities that make the community
association more governmental. The breadth of these association activities may
support a finding of state action. The constitutional challenge may arise from
the state or federal constitution.
The absence of state action does not necessarily resolve
the issue. There may be association actions that infringe on rights that would
be constitutionally protected if the actions were governmental. In such
situations, there are arguments that other remedies should be available even in
the absence of state action. Public policy remains a determinant in the validity
of a servitude and certainly of a rule adopted in accordance with that
servitude. Courts can and should carefully examine the issue and determine
whether there is a genuine constitutional issue. If so, the court would be
justified in striking down the restriction or action on the basis that to
enforce it would violate public policy. This does not foreclose the regulation
of fundamental rights¼.
Constitutional issues must be considered and addressed in drafting
common interest community documentation and in advising the community
association on its operations. There are obvious issues affecting the
association’s members such as voting, occupancy restrictions, use of the
property, leasing and transfer restrictions, sign restrictions, and access among
S. Hyatt, Common Interest Communities: Evolution and Reinvention, 31 J.
Marshall L. Rev. 303, 340-42 (1998) (emphasis added)]
Other distinguished scholarly commentators have reached similar
conclusions concerning the compelling need for all branches of government,
including the judiciary, to recognize the emerging phenomenon of large-scale
community associations as an alternative de facto form of
municipal government. For example,
Gerald Frug, Professor of Local Government Law at Harvard University,
presciently observed in the early 1990’s: “The privatization of [local]
government is the most important thing that is happening [in local government
law], but we’re not focused on it. We haven’t thought of [community
associations] as government yet.” Joel
Garreau, Edge City: Life on the New Frontier 185 (1991) (quoting Gerald
Frug, Professor of Local Government Law, Harvard University). A Federal
Government advisory panel reached essentially the same conclusion, albeit
expressed in more measured prose: “In all probability, residential community
associations account for the most significant privatization of local government
responsibilities in recent times.” U.S.
Advisory Council on Intergovernmental Relations, Residential Community
Associations: Private Governments in the Intergovernmental System? 18
In 1994, Professor Evan McKenzie, a prominent scholar on community
associations (and Plaintiffs’ expert in the trial court proceedings),
published his path-breaking scholarly work entitled Privatopia.
Although there is insufficient space here to summarize McKenzie’s many
insights, this particular finding perfectly encapsulates McKenzie’s research
and his conclusions: that “government now has no choice but to address the
social and political consequences of the spread [of community associations]”
and, further, that “[t]he best and most logical way to do this is to view the
spread of [community associations] as a de facto privatization
decision [by government] and evaluate it in that context.”
Evan McKenzie, Privatopia 178.
Others scholars and commentators have drawn on McKenzie’s insights and
have gone on to propose policy recommendations that contemplate an increased
role for all branches of government in response to the “de facto
privatization” of municipal government. For example, in a thoughtful article entitled, Private
Communities or Public Governments: The State Will Make the Call, 30 Val.
U. L. Rev. 509 (1996), the authors, Harvey Rishikof and Alexander Wohl,
opined that “state courts¼will
need to work to balance these interests [in community associations] ¼and ultimately delineate the line
between public and private [in that setting].”
Id. at 550. The
authors conclude: “[T]he idea that states are able to either equate provisions
of their state constitutions with the comparable provisions in the federal
Constitution or, in the alternative, to interpret the language of these
provisions more broadly and thus provide more expansive protections of
individual rights, will likely have significant implications for private
residential associations... This is an example of how our Federalism works, as
both state and federal powers define and protect our liberties.”
In short, the substantial legal foundation underlying the decision of the Appellate Division below includes not only the well-established decisional law of this state, but also (1) the comprehensive record on this appeal, which includes, among other things, numerous reports and studies that are highly pertinent to the legal issues here presented; and (2) other materials extrinsic to the record on appeal, including law review articles and scholarly commentary.
CONTRARY TO APPELLANTS’ CONTENTION, THE APPELLATE DIVISION BELOW DID NOT ERR IN HOLDING THAT, CONSISTENT WITH THIS COURT’S DECISION IN COALITION AND WITH MANY OTHER DECISIONS OF THE COURTS OF THIS STATE, COMMUNITY ASSOCIATION RESIDENTS ARE ENTITLED TO THE PROTECTIONS OF THE STATE CONSTITUTION.
rate of growth of community associations in this State -- and their gradual assumption of
functions and services traditionally provided by municipalities -- leads
inexorably to the conclusion that the rights guaranteed by our State
Constitution cannot be denied or abridged merely by reason of the
nominally private status of community associations.
On the contrary:
significance of the historical path of free speech is unmistakable and
compelling: the parks, the squares, and the streets, traditionally the home of
free speech, were succeeded by the downtown business districts... These
districts have now been substantially displaced by  [shopping] centers. If
our State constitutional right of free speech has any substance, it must
continue to follow that historic path.
Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J.
326, 368 (1994) (emphasis added)]
record on this appeal conclusively establishes that the “historic path” has
moved from public squares and streets to private squares (i.e.,
regional shopping centers, as in Coalition) and private streets
situated in community associations.
hold otherwise would be a repudiation of this Court’s decision in Coalition
and, as well, of the core free speech principles enshrined in the New Jersey
Constitution. See Coalition, supra, 138 N.J. at 369
(“In New Jersey, we have an affirmative right of free speech, and neither
government nor private entities can unreasonably restrict it”).
It is no answer to say (as Appellants do) that private contractual agreements, or the “business judgment rule,” somehow trump constitutional principles, and that New Jersey community association residents have no constitutional rights because of some sort of “waiver” arising from the documents they signed when purchasing their homes. The “waiver” and “business judgment” arguments fail for the reasons identified by the Appellate Division below as well as for the reasons set forth in Plaintiffs’ briefs to the Appellate Division.
To those cogent reasons we add the following additional rationale, which also establishes the untenability of Appellants’ central argument. Appellants’ contract-based arguments, taken to their logical conclusion, would lead to the anomalous result that that outsiders to Twin Rivers would have more rights to engage in expressive and associational conduct on Twin Rivers’ streets than the residents of Twin Rivers. But that can’t be so.
In particular, Appellants’ argument leads to the paradoxical and wholly
unacceptable circumstance whereby: (1) a member of the public would have greater
rights to campaign for public office in the public areas of Twin Rivers than a
Twin Rivers homeowner campaigning for public office in the public areas of Twin
Rivers; (2) a member of the public would have greater rights to enter upon Twin
Rivers and hold up a political sign and distribute leaflets in the public areas
of Twin Rivers than a Twin Rivers homeowner would have the right to hold up a
political sign and distribute leaflets in the public areas of Twin Rivers; and
(3) a member of the public would have greater rights to enter upon Twin Rivers
and urge election of a candidate for the Twin Rivers Board of Trustees than a
Twin Rivers homeowner would have the right to urge election of a candidate for
the Twin Rivers Board of Trustees. This
state of affairs is not only intuitively wrong, it is foreclosed by core
principles of First Amendment and corollary State Constitutional doctrine.
Thus, for example, the Appellate Division’s decision in Galaxy
Towers is premised not only on an individual’s right to free expression,
but also on the corollary right of an individual to receive another’s
information and expression. See Guttenberg Taxpayers and Ratepayers Association
v. the Galaxy Towers Condominium Association, 297 N.J. Super. 309
(App. Div. 1996), certif. denied, 149 N.J. 141 (1997)
(holding that “the relief granted … afford[s] plaintiffs, as well as
the residents of Galaxy Towers, the basic
freedom of expression guaranteed by our State and Federal
Constitutions”)(emphasis added). By
the same token, the United States Supreme Court’s seminal decision in Marsh
v. Alabama is premised on the recognition that the residents of company
towns have a constitutional right to receive information. The lynchpin of
Marsh is this observation of Justice Black:
people in the United States live in company towns.
These people, just as residents of municipalities, are free citizens of
their state and country… There is no more reason to depriving these people
of the liberties guaranteed by the First Amendment than there is in curtailing
these freedoms with respect to any other citizen [in a public municipality].”
326 U.S. at 508 (emphasis added)]
although the Marsh case arose because of the efforts of an “outsider”
to exercise her First Amendment rights in a private municipality, the Supreme
Court made clear that its concern plainly was directed as much -- if not more --
toward the residents’ rights to receive information as it was directed
toward the outsider’s right to convey information to those residents.
fundamentally, the right to free expression and the right to receive the free
expression are plainly two sides of the same coin, complementary and
inseparable. Those essential and complementary rights of free expression
have never been bifurcated; nor could they be.
Indeed, to bifurcate these complementary rights would run afoul of the
core principles of free expression under the Federal and State Constitutions,
because the right to speak is rendered a nullity if there is no corollary right
to listen, and the right to listen is rendered a nullity if there is no
corollary right to speak. Each
right implies the other. See,
e.g., Island Trees Union Free School District v. Pico, 457 U.S.
853, 867 (1982) (“[T]he right to receive ideas follows ineluctably from the
sender’s right to send them); Lamont v. Postmaster General, 381 U.S.
301, 308 (1965) (Brennan, J., concurring) (“The dissemination of ideas can
accomplish nothing if otherwise willing addressees are not free to receive and
consider them. It would be a barren
marketplace of ideas that had only sellers and no buyers”); Martin v.
Struthers, 319 U.S. 141, 143 (1943) (“The right of freedom of
speech and the press … embraces the right to distribute literature, and
necessarily protects the right to receive it”).
is it tenable or supportable under core First Amendment principles and related
State Constitutional doctrine that an outsider to Twin Rivers could engage in
political speech on Twin Rivers property and a Twin Rivers homeowner would have
the constitutional right to receive that speech, but the same Twin Rivers
resident would have no right to engage himself or herself in the very same
speech. It is perhaps
unnecessary to state that a principle that would confer a right to speak based
solely on the identity of the speaker has no place in our law. Moreover, a
circumstance whereby a speaker has an acknowledged right to speak and a
recipient has an acknowledged right to receive the speech but the recipient has
no right to engage in the same speech runs counter to the fundamental precept
that “the right to receive ideas is a necessary predicate to the recipient’s
meaningful exercise of his own rights of speech, press and political freedom.” Island Trees Union Free School District v. Pico, supra,
457 U.S. at 867.
The proposition that residents of Twin Rivers have no less a right to
speak than nonresidents flows inexorably from these core principles. And the
same result obtains by application of the “unconstitutional conditions”
doctrine, and by application of the principle that servitudes that are either
contrary to public policy or unconstitutional are unenforceable. See, e.g.,
Restatement (Third) of Property (Servitudes) § 3.1 (stating that “a
servitude … is valid unless it is illegal or unconstitutional or violates
public policy”). These further
arguments were fully set forth in Plaintiffs’ briefs to the Appellate
Division, and need not be repeated here.
For the reasons set forth above as well as for the reasons set forth in the briefs of the Plaintiffs/Respondents, the decision of the Appellate Division below should be affirmed.
Dated: September __, 2006
DCA’s jurisdiction over
community associations is exceedingly limited. Mr. Hannaman estimates that
only one-third of the complaints filed by community association residents
fall within DCA’s limited jurisdiction. Pa236.
Moreover, the entire thrust of Mr. Hannaman’s paper is that the
current DCA dispute-resolution process is ineffective and unworkable, in
light of the narrow scope of DCA’s regulatory jurisdiction. Pa236-241.
particular examples cited by Mr. Hannaman –- i.e., examples of New
Jersey community association boards abridging or denying the basic rights of
older and/or disabled residents -- are of special concern to AARP.
For further discussion of this issue, see Point IC, infra.
Many community associations carry out such traditionally municipal functions
and services as maintenance of streets and open space, collection of
curbside trash, review of proposed architectural changes to homes and the
promulgation of rules governing home occupancy. Moreover, the broad powers
granted by the Legislature to community associations include the power to
levy fines and penalties against unit owners, see N.J.S.A.
46:18B-14(d), 46:8B-15(f), a power that the Appellate Division has
expressly termed a “governmental power.”
Walker v. Briarwood Condo Ass’n, 274 N.J. Super. 422,
428 (App. Div. 1994).
Furthermore, many community associations in this State receive direct public subsidies under the Municipal Services Act, N.J.S.A. 40:67-23 et seq., for the cost of maintaining privately owned streets situated on community association property. Although there exists no current estimates of the total statewide cost for this benefit to community associations, the Office of Legislative Services estimated the cost as $62 million as of 1990, at a time when there were far fewer community associations in this State. See Senate Revenue, Finance and Appropriations Committee Statement No. 2869, L. 1989, c. 299, reprinted in N.J.S.A. 40:67-23.2. As of 2006, this statewide expenditure must surely exceed $100 million. Such an enormous public expenditure for traditionally municipal services on community-association property further undercuts the claim that community associations in this State are purely “private” entities.
Professor McKenzie’s book has been called
“the best book ever written about ... homeowner associations and the
threat they pose to traditional notions of equal opportunity and fair
play.” Statement of Kenneth
T. Jackson, Professor of History, Columbia University, quoted in www.yale.edu.vup.
See also statement of Dennis Judd, Professor of
Political Science, University of Missouri, quoted at www.yale.edu.yup.
(“McKenzie succeeds in persuading the reader that to understand local and
even national politics, it is essential to understand our notions of
participation, community and citizenship are being changed by the
proliferation of [community associations] as privatized, quasi-autonomous
A review of the record on appeal -- as well as other data sources subject to
judicial notice -- discloses that New Jersey is among the leading states
with respect to the number, prevalence and growth of community associations
in recent years. See, e.g.,
David J. Kennedy, Residential Associations as State Actors: Regulating
the Impact of Gated Communities on Nonmembers, 105 Yale L.J. 761,
765, n.24 (1995). Approximately
1 million New Jerseyeans (1 out of 8) live in community associations.
See Hannaman Report, at 2 (Pa235). In 2002, the estimated
number of association-related housing units in New Jersey was 494,000 and
growing at the rate of approximately 7 percent per year.
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