Dissident homeowners get a voice
Courtesy The Times
By: MARK PERKISS, Staff Writer 
February 10, 2006

Haim Bar-Akiva didn't think living in an East Windsor community run by a homeowners association should cost him his constitutional right to free speech.

Yesterday, a state appeals court agreed with him, ruling that East Windsor's Twin Rivers and all other New Jersey developments run by homeowners associations must allow residents to put political signs on their property and publish opposing views in association newsletters.

"We are very elated to hear the news and very happy that the residents in homeowners associations have constitutional rights the same as anyone else in America," said Bar-Akiva, one of three Twin Rivers residents who sued the development's homeowners association.


In a unanimous decision with potentially wide ramifications, a three-judge appeals panel ruled that the Twin Rivers Homeowners Association (TRHA) essentially is a governmental entity and must follow the New Jersey Constitution and allow freedom of speech.

The case, brought by Twin Rivers residents and the American Civil Liberties Union, affects more than 1 million New Jersey residents in communities overseen by homeowner associations and is similar to a 1994 landmark case that allowed protest groups into shopping malls.

The three-judge panel overruled a decision by Superior Court Judge Neil Shuster in Mercer County that the Three Rivers Homeowners Association was exempt from following the state Constitution because it is a private business entity.

"We disagree with the trial court's determination that (the association) is not subject to constitutional limitations, such as those imposed on (government entities)," Appellate Division Presiding Judge Howard Kestin wrote in a 67-page ruling.

Because of the state Constitution's "broadly applicable right to free speech, we conclude, in balancing the interests of the parties, that . . . (the homeowners') rights to engage in expressive exercises, including those relating to public issues in their own community, . . . must take precedence over the TRHA's private property interests," Kestin wrote.

"This is a huge win for more than 1 million New Jerseyans who live in these communities," said Frank Askin, a Rutgers University law professor who argued the case for a group known as the Committee for a Better Twin Rivers, three residents and the ACLU.

"It provides hope for 50 million people in these communities around the country.

"This ruling says people do not waive their constitutional rights when they move into these communities," Askin said. "It says these associations have to abide by fundamental rights protected by the New Jersey Constitution."

Barry Goodman, the attorney for the homeowners association, said the ruling was too far-reaching and vague and would be appealed to the New Jersey Supreme Court.

"This decision is overly broad and contrary to 25 years of New Jersey Supreme Court and appellate decisions in New Jersey," he said. "If the law is going to change, it should be the Supreme Court to change it, not this liberal appellate panel."

Twin Rivers already has regulations in place about political signs, and Scott Pohl, president of the homeowners association, said he is confident those rules will be upheld.

"The court did not say that our policies were not acceptable," he said. "The decision says our rules have to be looked at under this new standard, and we're confident our policies will be upheld under that review, but we will appeal this ruling."

Bar-Akiva, whose wife is a former Twin Rivers board member, said he hopes the current association leaders reconsider appealing the decision.

"It's going to be a waste of homeowners' money, just like they've already wasted half a million dollars for refusing to grant us basic constitutional rights," he said.

Twin Rivers has about 10,000 residents, about 40 percent of the population of East Windsor. The development is one of the largest homeowner association communities in the country.

Yesterday's decision follows a series of events in recent years in which homeowners associations have come under public fire for fining residents for putting up political signs or flags supporting American troops in Iraq.

In Hamilton, Ralph and Dori McIlvaine, who live in the Evergreen development, were forced to pay $1,000 in 2003 after they disobeyed their homeowners association order not to fly a POW-MIA flag after Army Pvt. Jessica Lynch was taken prisoner in Iraq.

In Bordentown Township, George Shafer, who lives in the Village Grande community, was fined $600 by his homeowners association for putting up a Bush-Cheney campaign sign on his lawn about a week before the 2004 election.

"I'm thrilled with this decision," Shafer said. "This is complete vindication for me. The people who run these associations need to know that we have rights that cannot be taken away."

Officials at the Community Associations Institute (CAI), which represents about 16,000 homeowners and condominium associations around the country said yesterday's ruling was not a surprise.

"The trend we've seen in the past 10 years is for courts to treat community associations more as governmental entities," said J. David Ramsey, a Morristown attorney and a past president of the organization.

"It is the broad parts of the case where the court says all constitutional rights guarantees now apply to all homeowners associations that's troubling," he said. "We need some definition from the Supreme Court on what this means.

"If there are 500 people who want to put something in the association newsletter does this mean that all of those pieces have to be published? If the governor puts a position I don't like on the state Web site, I don't have the right to insist that my views get posted on the state Web," Ramsey said.

Ronald Perl, a West Windsor lawyer and president-elect of CAI, said the decision is troubling.

"The main area of concern is the blanket imposition of constitutional protection on the whole governance scheme of community associations," he said. "Imposing the same standards on community associations that apply to government entities may have gone too far.

"Many people have selected the association form of ownership," Perl said. "They don't want their neighbors to be able to put signs on their lawns. They don't want their neighbors to be able to paint their houses gaudy colors. They want protection of their property values. Face it, restrictions are not all bad."



Amicus Curiae Brief of the Community Associations Institute 

Response to the amicus curiae brief of the CAI

Lawsuit Tests Power of Homeowner Associations

Homeowners test the power of their own association