An uncivil board.
A civil rights lawsuit.
Could it happen to you?
Lawsuit Tests Power of Homeowner Associations

Article Courtesy of  The New York Times
August 12, 2002 

EAST WINDSOR, N.J., - The dissenting homeowners at Twin Rivers, a vast 1970-vintage housing development of 10,000 residents on the exurban plains here, say their homeowner association autocratically denies them the rights that most citizens take for granted.

The homeowner association says that if the dissidents dislike living here, in central New Jersey, they should move.

Now the handful of dissenters, backed by the state chapter of the American Civil Liberties Union, are suing the homeowner association in a lawsuit that could change New Jersey law and prove influential in other states as well. 

At a time when one in six Americans lives in a development governed by a property owners' association, the dissidents in Twin Rivers argue that their association resembles a local government enough to be subject to constitutional restraints. 

The suit says the homeowner association board has shut down the dissidents' political campaigning, denied them access to financial records and voting lists and skirted ordinary democratic voting processes. Speaking over coffee, two former board members, Dianne McCarthy and Margaret Bar-Akiva, and Ms. Bar-Akiva's husband, Haim, said the board passed resolutions, including a ban on signs on front lawns and common areas, to squelch political opposition.

The board denies most of the accusations but says that in any event it was merely following its own bylaws, as it is bound to do, and should not be deterred by a few people who dislike the rules. Whatever it did, the board argues, it did as a nonprofit corporation, not a government. 

Until the 1970's, homes governed by property owners' associations were rarely seen outside vacation colonies and scattered wealthy neighborhoods. 

Now "common interest developments," including condominium and cooperative associations but more often neighborhoods of single-family homes, number well over 200,000, by the estimate of the Community Associations Institute, the major national group for homeowner boards and managers. 

"This is a fundamental test case, not only for New Jersey but for the country," said Frank Askin, the director of the Constitutional Litigation Clinic at Rutgers Law School in Newark, who is handling the suit. 

The trouble in Twin Rivers began the way most big cases do, as an accretion of tiny quarrels, and in this case the grievances were those of Ms. McCarthy and the Bar-Akivas. 

Ms. McCarthy and Ms. Bar-Akiva regularly accused the board of unnecessary secrecy and a heavy-handed governing style. Haim Bar-Akiva challenged the board at meetings. With a few other residents, they formed a faction of the kind that irritates local officials everywhere. 

The Twin Rivers Homeowners Association, in a loose sense, is a democracy, since its nine-member board is elected, and Ms. Bar-Akiva and Ms. McCarthy won three-year terms in the 1990's. 

They were unpopular with other board members, though, especially when they became involved in 1997 with a statewide group promoting legislation to rein in homeowner associations. 

Shortly after they did, the Bar-Akivas received notice that the mullions in their storm door violated the association's architectural rules. A panel appointed by the board found that the door was acceptable, but the board persisted and, a year later, sued the Bar-Akivas. 

At the time, Ms. McCarthy was campaigning for a seat on the board and putting up signs, which she said were defaced. She won anyway, but after her term started in 1999, the board passed a resolution forbidding signs more than three feet from homes. 

The board also established a procedure for disciplining members who disclosed information that the board deemed confidential, a change that Ms. McCarthy said was adopted because the board suspected that she had discussed the storm-door litigation and other board business with the Bar-Akivas. Ms. McCarthy was quickly accused of violating the new rule and censured.

By 2000, the Bar-Akivas, Ms. McCarthy and a half-dozen other residents had set up their own civic group, the Committee for a Better Twin Rivers. They demanded financial documents and voting lists from the board but were refused. The committee and several individuals, including Haim Bar-Akiva (but not Margaret) and Ms. McCarthy, filed suit in December 2000. 

Now it appears that the case will go to trial, in State Superior Court in Mercer County, since both sides conceded last week that mediation attempts failed. The development's residents are being assessed for the fight: the association plans to spend $300,000 of its $3.9 million budget this year on its defense in the case. 

The Twin Rivers association, like most homeowner associations, collects maintenance fees and lets contracts for professional managers and services like trash collection. The associations supplant zoning laws with their own land-use plans, control recreation areas, and, in the role that probably earns them the most hostility and ridicule, enforce architectural rules. 

That kind of control is what people asked for when they moved to Twin Rivers, said Barry S. Goodman, the association's lawyer. "If someone does not want that kind of uniformity or conformity, the association isn't the place for them," he said. 

If the rule against signs is struck down, Mr. Goodman said, "you're talking about destroying the aesthetics of the community and the lifestyle people have chosen by moving here."

Nevertheless, many complaints about homeowner organizations put the matter of choice in a different light. Evan McKenzie, a political science professor at the University of Illinois who is an expert witness for the plaintiffs, said the notion of consent of the governed in common-interest developments was a fiction.

"The way these governing documents tend to be written, people don't really understand the extent of what they might be giving up," Dr. McKenzie said. 

He also said that privately run developments were proliferating not because of popular demand but because of local governments' insistence that someone else pay for streets, utilities and landscaping. "It's a financial windfall for cities," he said. "It's a way for local government to deal with fiscal constraints in the post-property-tax-revolt years." 

Scott Pohl, the president of the Twin Rivers board, said he and other members could not discuss the accusations. Mr. Goodman, the association's lawyer, said the board "has done its best to exercise its best judgment as to what's in the interest of the community." 

The board members "must be doing something right," he added, "because the majority of people re-elected them." 

To the civil liberties union and Mr. Askin, Twin Rivers is one case in a series of precedents they would like to extend. 

Mr. Askin has won several rulings extending the right to campaign and distribute leaflets in semipublic settings, including a shopping mall and a condominium complex. In Twin Rivers, he said, the issue is somewhat larger: "What are the rights of members of an association to democratic governance within the community?"

He said he brought the Twin Rivers suit, like his earlier cases, under the State Constitution, because "New Jersey is far ahead of the rest of the country in protecting people from private centers of power." 

Curt Macysyn, the executive vice president of the state chapter of the Community Associations Institute, said his organization would oppose any legal analogies between a homeowner board and a city council. 

"Most people don't want a mini-government anyway," he said. "They want effective operation of the association, the pool, the landscaping and such. They don't want another bureaucratic body."