A Wise Ruling on Homeowner Associations

By JAMES AHEARN

THE NEW JERSEY Supreme Court held last week that people who buy homes in developments where rules are set by residents must accept reasonable restrictions on free-speech rights, including limits on placement of political signs.

The decision, which was unanimous, set a national precedent. It also drew attention to a trend that is changing housing in this state and in the rest of the country.

The development directly affected by the decision is called Twin Rivers. It is in East Windsor Township in Mercer County, just east of Exit 8 of the New Jersey Turnpike. Occupying a former potato farm, it is big by New Jersey standards, more than a mile square, with 10,000 residents living in condominium duplexes, townhouses, single-family homes and apartments.

Twin Rivers is racially integrated, more so than most New Jersey communities. Whites constitute two thirds of the population, Hispanics 15 percent, blacks 10 percent and Asians 5 percent. Most of them apparently get along quite well.

The median household income, as of 2005, was $71,700. Of adult residents, 90 percent have high-school diplomas, 37 percent have bachelor’s degrees, and 12 percent have graduate or professional degrees. A third of Twin Rivers households include children under 18.

Unlike many similar developments, this one is not gated, but its swimming pools, community room, ballfields, playgrounds and other amenities are not open to outsiders.

Established in 1979, Twin Rivers was the first planned unit development in the state. Management decisions are made by an elected board of residents, the Twin Rivers Homeowners Association.

1.3 million affected

I was astounded to learn that there are now 5,800 of these association-run developments in New Jersey. Some 1.3 million people live in them, including 40 percent of all the homeowners in the state. Forty percent!

To the matter at hand: Half a dozen Twin Rivers residents, dissatisfied with the governance of the development, brought suit. Calling themselves the Committee for a Better Twin Rivers, they retained as attorney our old friend Frank Askin, head of the Rutgers Constitutional Litigation Clinic.

They raised nine issues to begin with, but by the time the case reached the Supreme Court, the list had been cut to three. First, the plaintiffs said, their right to free speech was unconstitutionally restricted by a homeowners association rule limiting political signs to two per unit, one on a lawn and one in a window. The dissidents wanted to place multiple signs on their lawns and elsewhere in the development. We can infer that the messages would have dealt more with internal Twin Rivers affairs than national or state politics.

Second, the dissidents said the rental fees set by the association for the community room were excessive and discriminated against them. Finally, they wanted the development’s monthly newsletter, Twin Rivers Today, to give them as much attention as was given to other residents. The dissidents specifically sought an injunction restraining the president of the board from using the newsletter as “his own personal political trumpet.”

The trial judge, Neil Shuster of state Superior Court, issued a long and carefully reasoned opinion that upheld the Homeowners Association on most points. Later, a three-judge panel of the state Appellate Division, in a reversal, ruled for the plaintiffs on several matters.

The task that confronted the Supreme Court was to define exactly what a development like Twin Rivers was and to establish what its association could legally do. Was it quasi-governmental? If so, the dissident residents might validly claim the same right of free speech that would protect them at a State House rally. Not so, however, if the development was more of a private entity.

The Twin Rivers association and others like it, which clear snow, mow lawns, maintain roads and collect trash, are clearly more substantive than simple neighborhood groups. But development associations do not have powers the state gives municipalities and school districts. It is the Township of East Windsor that collects taxes and provides Twin Rivers with police and fire protection. It is the East Windsor school district that staffs and operates the schools, several of which are in the development.

Private operation

The Supreme Court agreed with Judge Shuster that Twin Rivers was essentially private and that residents agreed to accept the development’s rules when they bought their properties. They signed a contract to that effect. Further, the plaintiffs failed to prove that most of the rules were unreasonable, the court concluded, in a decision written by Justice John E. Wallace Jr.

I think the ruling makes sense. It overturned the Appellate Division decision and reinstated Judge Shuster’s. The homeowners association’s limit on political signs has been affirmed, the association has been directed to clarify and rationalize procedures for use of the community room, and the courts have refused to second- guess decisions of the newsletter editors. Good.

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James Ahearn is former managing editor of The Record. Send comments about this column to The Record at letterstotheeditor@northjersey.com.

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