Courtesy Windsor-Hights Herald
|Lawsuit against homeowners' association yet to be finalized
By: William Wichert, Staff
February 10, 2006
WINDSOR — A group of Twin Rivers residents won a constitutional argument this
week related to a lawsuit challenging, among other things, restrictions on
posting political signs and a voting system based on property values.
But their lawsuit against the homeowners' association has yet
to be finalized as it has been remanded to a lower court and the association
plans to appeal to the state Supreme Court.
they're not happy with these policies," said association attorney Barry
Goodman, "they should look elsewhere to live."
A three-judge panel from the Appellate Division of the state
Superior Court on Tuesday found that the constitutional right of free speech
must be applied to the 10,000 residents in Twin Rivers — a ruling that some
are heralding as a landmark decision for planned communities across the state.
"We're saying the time has come to look at it in the face
and call it what it is, which is a quasi-governmental entity," said
Margaret Bar-Akiva, one of the residents involved in the lawsuit. "The
bigger picture are these mini-governments listed as private corporations that
turn out to be mini-dictatorships."
In Twin Rivers, the legal fight is not over. The residents
challenged the constitutionality of the rules imposed by the homeowners'
association, but the appellate decision did not rule on those regulations.
Instead the case has been sent back to the state Superior Court, which
previously dismissed it, instructing the court to apply the constitutional
argument to its original ruling.
And before the lower court reviews the case again, the
homeowners' association will appeal this week's appellate decision to the state
Supreme Court and no changes will take place at Twin Rivers in the near future,
said Mr. Goodman.
"Twin Rivers will continue to operate the way it
has," he said. "It doesn't matter what standards apply, the Twin
Rivers' regulations will be upheld."
Scott Pohl, president of the association's board of directors,
said a Supreme Court ruling would offer a final conclusion to the legal battle
in a community where residents' rights have always been addressed.
"As far as freedom of speech and first amendment rights,
it's been there all along."
The regulations challenged in the lawsuit include restrictions
on the posting of political signs around homes and use of the community room,
along with the voting system to elect the community's board of directors. In
Twin Rivers' weighted system, votes are based on the value of one's property.
This week's court decision did not approve of the residents'
demands for a one-person, one-vote system and greater access to financial
documents, but Frank Askin, the residents' attorney, said the judges backed the
overarching message: The New Jersey Constitution must be applied to planned
communities like Twin Rivers.
"This is not to be decided by (homeowners') contracts but
by constitutional issues," he said.
But Mr. Goodman said no court in the country has ever applied
constitutional standards to how homeowners' associations deal with their own
"I think the appellate decision simply got it
wrong," he said.
The state Department of Community Affairs already provides
"more than enough governmental regulation" and all residents agree to
the community's regulations when they buy a home there, said Mr. Goodman.
Moving out of these planned communities, as Mr. Goodman
suggested, may not be very easy, especially in the expensive housing market in
East Windsor, said Mr. Askin. While houses in planned communities like Twin
Rivers are priced at about $200,000, it may cost residents almost double to live
outside such a community, he said.
"People don't buy in these communities because they love
the regulations," said Mr. Askin.
For those residents who remain frustrated with the community's
regulations, Mr. Goodman said, there are ways for them to change them. Residents
can either get elected to the board of directors, consult with one of their
board representatives or start a grassroots movement to push for a communitywide
vote to amend those regulations.
"It's not typically done, but they have the choice,"
The regulations in Twin Rivers are "extremely
difficult" to amend, said Ms. Bar-Akiva, because 75 percent of the
community has to vote on changing them. With people leading busy lives, any
grassroots movement faces a daunting task, she said.
The only way for residents to challenge fines levied against
them for violating those regulations without going to court — an appeal
process known as the alternative dispute resolution — has also become more
difficult in recent years, said Ms. Bar-Akiva, who also serves as president of
the statewide Common-Interest Homeowners Coalition.
After Ms. Bar-Akiva and her husband were fined in 1997 for
having the wrong type of storm door, they successfully appealed that decision to
the Twin Rivers ADR committee, she said. Soon after that, the committee was
disbanded and the homeowners' association changed the ADR system, limiting what
type of objections residents can bring forward, she said.
Mr. Pohl said that committee was disbanded because it was made
up of volunteers from the Twin Rivers community who were not always properly
trained to address ADR issues. The homeowners' association decided to place ADR
in the hands of professional mediators, he said.
The issues that Ms. Bar-Akiva is referring to — election
procedures and the community's established regulations — were never subject to
the ADR process, said Mr. Pohl.
Although the Appellate Division upheld the Superior Court's
ruling on the community's ADR process, Mr. Askin said this week's decision will
spark changes in Twin Rivers as well as in other municipalities across the
A similar lawsuit at a Guttenberg condominium complex in
Hudson County had been held up by a judge waiting to see the outcome of the Twin
Rivers case, and several bills have been introduced in the state Legislature
aimed at revising the powers of homeowners' associations.
rules are a-changin'," said Mr. Askin.