An uncivil board.
A civil rights lawsuit.
Could it happen to you?
Twin Rivers lawsuit to tax owners
Courtesy Windsor-Hights Herald
By: Michael Arges, Staff Writer 
August 10, 2001 

     Official estimates that defense will cost the community $250,000 to $300,000. 
             EAST WINDSOR Twin Rivers residents may face assessments or reductions in service in order to pay for defense of their board's policies.
             About 200 people attended a Wednesday meeting of the Twin Rivers Homeowners Association to discuss how to pay for legal action relating to a suit sponsored by the ACLU against the board of the Twin Rivers Trust (also called the Twin Rivers Homeowners' Association). The Twin Rivers community includes about 10,000 people.
              Board President Scott Pohl estimated that defending against the suit will cost the community $250,000 to $300,000. The suit alleges that the board unreasonably restricts homeowners' participation in community affairs.
              Options for paying the major legal bill were discussed, but no final decision was made, Mr. Pohl explained Thursday. "The final decision won't be made until we go into our budget process for the year, and we see exactly where we are financially and what other options we have."
              Special assessments and reduction of service were among the solutions mentioned, Mr. Pohl added.
              "The options we were looking at were either doing multiple special assessments as the bills come due," Mr. Pohl said, "or just one large special assessment to cover the estimated total cost, taking a loan from a bank, or reduction of services." The board may be able to defer some of the costs by running the year at a deficit and spreading out the payments to two years, Mr. Pohl added. Reduction of services might include reducing garbage pickup, closing swimming pools and reducing the frequency of seasonal maintenance, such as lawn mowing.
               "I suggested that we do it by final binding arbitration based upon the documents," noted Al Wally, a long-standing opponent of board policies. Mr. Wally said that he was booed when he made this suggestion. The suit has been filed with Mercer County state Superior Court, Chancery Division, said Rutgers law professor Frank Askin, who heads the challenge to the Twin Rivers board on behalf of the ACLU. The challenge is a project of Rutgers Law School's Constitutional Litigation Clinic.
               "I work on this with my law students," Professor Askin explained. The case is in pretrial discovery, Professor Askin reported. "We expect to complete depositions in the month of August. And we will having expert depositions later in the season." He does not expect trial before spring. The case was filed on Dec. 8 last year.
                The issue is a denial of democratic governance by the homeowners association, Professor Askin suggested.
                "The plaintiffs are all members of the association who feel that the rules and regulations are too restrictive on their right to participate in the governance of the community. It is our position that Twin Rivers is essentially a quasi-governmental body that should really have to respect constitutional rights in ways similar to that which, for example, East Windsor (Township) would have to."
                The Twin Rivers board deserved extensive constitutional scrutiny, because it has such an extensive influence over the lives of residents, Professor Askin asserted in an interview Aug. 3.
                 "It performs like a government," Professor Askin said. "It has more impact on people's lives and what they can do, for example, than the East Windsor Town Council does. It functions to regulate their lives, and therefore the members ought to have more rights in the governance of the community."
                 Complaints against the board include the restrictions on access to documents pertaining to the activities of the trust, and financial restrictions on the use of the community's common room. The board even places restrictions on residents putting political signs on their own lawns, Professor Askin noted. "It's a significant test case under the New Jersey Constitution," he added.
                 In a December interview the board's attorney rejected Professor Askin's claims. "The ACLU's lawsuit is an unjustified intrusion into Twin Rivers' right to set reasonable rules and regulations for the people who live there," said Barry Goodman, the attorney for Twin Rivers Trust.
                 The trust's policy on releasing documents has already passed a court test, Mr. Goodman added.
                 Professor Askin expressed little sympathy for the financial woes of the Twin Rivers board. "That's not my problem all they've got to do is change their rules and regulations and there wouldn't be any litigation. They brought it on themselves."

© Windsor- Hights Herald 2001 

By Alan Saly
Courtesy of "Habitat Magazine" April Issue

Imagine your association torn apart by a legal storm involving the posting of political signs on the lawns, the editing of the newsletter, permitting dissident groups to hold meetings in community space, the tape-recording of all board meetings, and the granting of each unit, regardless of size, one vote. Imagine that, and you've imagined the situation at the Twin Rivers Homeowners Association. And what the courts decide there could have serious consequences for your property -wherever you are.
Built on 250 acres in East Windsor Township, near Princeton, N.J. between 1969 and 1970, Twin Rivers is the state's first planned unit development. It has 10,000 residents, two K-5 schools, shopping, recreational facilities and even a library. This seemingly ideal community began showing cracks when some residents started complaining about what they saw as heavy-handed practices by the board.
Among other things, some owners claimed that financial documents were not made available when requested by residents, that dissidents were roundly criticized by the president in the cornmunity newsletter without being given an opportunity to reply, and that crucial parts of board meetings were closed to unit-owners.

"There is an intimidation factor and a fear factor," claims board member Dianne McCarthy, who has frequently disagreed with her colleagues. "We were going door-to-door with a petition at one point when there was a vacancy on the board and we wanted the next runner-up in the last election to get the position.  The board wanted to appoint someone else. When I would knock on doors people would say, 'I don't want to get involved.' They won't approve my screen door."
She adds that the board is seeking her ouster on what she says are trumped-up charges of aiding a unit-owner who took the association to small claims court. She admits she was at the court hearing, but only to observe the proceedings, not as a witness for the owner. Yet, she says, "this was splashed on the front page of the newsletter and none of it was true."
                                                          A BAD SITUATION:
  Such feelings eventually led to the lawsuit. Contending that homeowners' associations are governmental entities that often abuse their obligation to maintain true participatory democracy, Rutgers University Law Professor Frank Askin, together with the American Civil Liberties Union (ACLU) of New Jersey, filed suit on December 8, 2000 against the association.  They are working on behalf of a group of Twin Rivers unit-owners, including board- director McCarthy, who helped organize the Committee for a Better Twin Rivers two years ago.  Granville Hackshaw, another Twin Rivers board director, is also a member of the committee, but not a named plaintiff.
      The legal papers ask the court to overturn what the plaintiffs see as Twin Rivers' restrictive rules on meetings, dissemination of information, political campaigning, voting, and free speech. Many of these issues, Askin insists, are not confined to Twin Rivers but affect an estimated 42 million condo, co-op, and homeowners' association members across the United States.
      "My position is that [the homeowners'association] is another governmental body that regulates peoples' lives," explains Askin. "The decisions of the Twin Rivers Homeowners Association have more of an impact on these homeowners' daily lives than do the actions of the East Windsor City Council. This is a governmental entity and should be subject to state constitutional restrictions, especially in New Jersey." Askin insists that Twin Rivers is a company town, in which individuals are less free to express their views and have access to information than other New Jersey residents.
Twin Rivers attorney Barry Goodman, a partner with the Woodbridge firm of Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, believes that Askin and the committee are shooting at the wrong target. He says that the association's rules and regulations are reasonable and freely chosen by members, and that, by raising constitutional issues in litigation against an association the litigants are making a case that doesn't need to be made, and will only end up costing the homeowners a great deal in legal fees.

                                                               HISTORY OF SUITS
While the litigation will be expensive for Twin Rivers, Askin can afford to sue. On the faculty of Rutgers Law School since 1966, he runs the Constitutional Litigation Clinic as part of the school's curriculum, with brainpower and research assistance provided by his law students. In 1996, Askin and the clinic won a first-ever free speech ruling against a homeowners association in Guttenberg Taxpayers and Rentpayers Association v. Galaxy Towers Condominium Association. In that case, the New Jersey Court of Appeals held that a condominium that actively endorsed board candidates by distributing leaflets to its members could not deny access to political opponents who wanted to do the same thing.
However, Goodman believes that Committee for a Better Twin Rivers v. Twin Rivers Homeowners Association  is "a quantum Ieap from Guttenberg. I'm sure that Frank sees it as precedent setting," he says. "He's certainly trying to expand the laws." But "there is a municipality government in place that [already] oversees this community," Goodman told the New Jersey Law Journal. "That is where constitutional law applies." When homeowner association have a problem with board directors, Goodman says, their proper recourse is to vote them out of office.
If Askin's side prevails, the association will be forced to allow the tape-recording of all meetings (with certain specific exceptions provided for change the format of the association's Newsletter, which currently features a president's column on the first pace. If successful, the plaintiffs would also be given an expanded right to copies of association financial documents.
"My clients say they have been constantly frustrated in their efforts to obtain certain documents concerning the financial operations of the association," Askin notes. "They have made various requests that have been denied. We think there is too much secrecy and confidentiality attached to financial documents that should be accessible to members of the community." 
      The suit also seeks to give homeowners the right to post political signs on their lawns, to give dissident groups of shareholders the right to hold meetings in community rooms without posting an insurance bond, and - in a change which is perhaps the most controversial - seeks to end the weighted voting by share, granting each unit, regardless of size or cost, one vote, which is found in many homeowners associations, co-ops, and condos throughout the country.
Goodman takes issue which each point, saying that even if there are restrictive and unfair boards, Twin Rivers isn't one of them. "No one has ever precluded any homeowner from publishing letters in the association's newsletter," Goodman says. "The [litigants] have simply chosen not to use Twin Rivers Today as a vehicle to get their message across; instead they have used the local newspaper, and sent them their letters to the editor.
"The president of the association has the right to include editorials in the newsletter and to advise the community about issues that are relevant," he adds.
 "If the president perceives that there is a problem created by a group and addresses this in an article he writes, that's something the president has the right to do. They've created certain issues and he's referring that to the community."
  Replies Askin: "All homeowners have basic equal rights to their views in the association's newsletter. Right now, every month, the president uses the front page to berate and condemn his opponents. They will let opponents put in letters, but the president gets the first page every month.  This is a common element of the community that belongs to all of the homeowners, and it's not appropriate for the President to dominate what is really the main community bulletin board."
       He believes that the newsletter's front page should be confined to objective reporting of general community news, and that "opinion pieces" be relegated to "the back section."
Goodman disputes the litigant's claims that they cannot obtain requested documents.  "We have a document production policy that complies with the Supreme Court of New Jersey. Members also have access to voting lists, and they can be used if confidentiality is maintained. People are allowed to stand up [and talk] at meetings. We don't have that type of a [dictatorial] situation.  Notwithstanding that fact, there are a few people, a very small minority, who want to see some changes."
    McCarthy acknowledges that the insurgents on the board had access to lists of voters but not, she says, to lists of those unit-owners who were deemed ineligible to vote, and whose ballots,
therefore, would not be counted in the final tally. Askin recognizes the major consequences of opposing weighted voting since it is practiced in many co-ops, condos, and homeowner associations.
"This a novel issue that hasn't been litigated," he admits, "but by analogy to municipal governments, certainly the town of East Windsor can't say that a person who owns a $500,000 house gets twice as many votes as a person who owns a $250,000 house.  It should be one unit, one vote."
Counters Goodman: "That's absolutely frivolous.  The bylaws provide for weighted voting and it's permitted by statute with reference to condominiums and co-ops.  I can understand why the ACLU wants to press a constitutional issue like this, but it has no place in this lawsuit. The members of an association have the right to decide what weight, if any, they want to give to the various units.  If they want to have one person one vote, or one unit one vote, or weighted voting, that's their right to for themselves:'

                                                        DEEP-SEATED IRE
The Twin Rivers case taps into deep-seated resentments by many owner-residents in both New York and New Jersey.  In New York various proposals have been floated (most prominently by Assemblyman Alexander B. Grannis) for a tenant's bill of rights to combat reported abuses by boards of Directors in co-ops and condos. In the Garden State, such complaints even led to hearings before the Assembly Task Force to Study Homeowners Associations in 1996 and 1997.
     Among the prominent homeowner activists who spoke out against board practices at homeowner associations at the public forums was Lois Pratt, of North Bergen.  In November 1996, Pratt, who has since died of cancer, testified: "Condominium associations need some balance that protects the homeowners from any unfettered, any abusive, any tyrannical, runaway situation so that it becomes the norm that you have a normal, democratic, open kind of governance in condominium associations."
She singled out open meetings as her key area of concern, and proposed that the same sunshine laws that govern the deliberations of state and local agencies also apply to association boards and committees.
Her husband, Sam, told the committee: "What we are trying to do in this relatively new form of housing in the United States is to build a community. We're not trying to build a special form of corporation or business. We're trying to do something relatively new in the history of housing... [the problem is] there isn't the separation of powers that is customary. You have a single group of men and women who are legislators, who are executives, and who are judges. They run the three of them together without any apparent self-consciousness."
     Kathleen Maher, of Leisure Village East in Lakewood, another large planed community, took issue with the conduct of elections in her association in her testimony. "If you examine our election process for new trustees, you will see a ballot box posted in our clubhouse the whole month before the ballots are counted. These ballots are removed at night and looked at or put somewhere. It is certainly not an election as you would term it in a democracy."
       "We are not being permitted to speak at monthly meetings... Some of our trustees become consultants to the village after they stop being trustees. Some of our trustees hold paid positions on certain political parties or water companies or other things which possibly might pose a conflict of interest... the lawyer, who we pay handsomely, sits at meetings where we are not permitted to speak, and he also protects their secrecy."

                                                              BOARD RIGHTS
Dennis Casale, a partner in the Princeton firm of Pepper Hampdon Comes down on the board's side. "I don't believe that homeowner associations are mini-governments." he says.  "For certain purposes associations are required to provide protections to residents that are similar to the protections that Government must provide. For example, there's been case law on the ability of people to solicit politically within community associations, but in general, the concept that an association is a governmental entity or should be treated as one is flawed.
"Take weighted voting. In most condo contexts, it's one condo, one vote. In terms of Twin Rivers, where different units have different percentage interests, there is nothing wrong with that.  It's just another way for a non-profit entity to govern itself. You can make the argument in an association context, which is different from a municipal context, that those who have the most interest in a community in preserving its property values should have a greater voting interest.  Frankly, a one-unit-one-vote principle is better - but I don't think it's legally required.
     "Associations are private entities", he continues. They are not governmental entities, and so they can be established under any reasonable system that complies with statutory laws, and the New Jersey laws are very flexible. In a homeowners association it's the owners who have the rights in terms of voting and that's not the case in a governmental democracy.
"The local country club or newspaper or magazine - they're not run as democracies, and there's no legal requirement that they be run that way, and I don't think homeowners associations should be treated any differently. The essential point is that homeowners associations are private entities, and it really is a restriction on the freedom of private individuals to organize themselves in associations and governments themselves if you say you must govern yourself as a local governmental agency would do. I see it is as a limitation on freedom of people to associate." When it comes to open meetings, Casale says that "meetings at which decisions are made that affect homeowners should be open," a basic principle which everyone seems to agree on, although the devil is still lurking in the details.
Casale's view on modifications to the association's newsletter is also closer to the board's position: "To the extent that associations use newsletters as political forums, there should be roughly equal access - I'm using political in the sense of the greater world of politics, if they want to be commenting on elections.  But when it comes to the association's business, it's the association's newsletter, and I think the association's president has the right to have a prominent place in the association's newsletter.  It's beneficial to provide others with access to express their views, but I don't think it's legally required."
How the situation will be resolved is anyone's guess, but one thing is certain: the community is fractured and, whatever the legal result, the board needs to think about mending fences if the community is ever to be harmonious.
Concludes McCarthy: "Barry Goodman is making light of this whole thing, but he doesn't live here.  We get calls from people every day who are in tears. Things are done in a very authoritarian way, and they're done that way by the board because they can. They are judge, jury and executioner.  They are not bad people, but they do make some horrendous decisions."

Copyright Habitat Magazine
Dianne McCarthy is the President of 

Common Interest Homeowners Coalition, New Jersey
(Click here to see their WebPages)