February 8, 2006 | By Mary Jo Patterson and Russell Ben-Ali; The Star Ledger

Homeowners get nod over association rules: Judges say residents can't sign away rights

In a case closely watched in many parts of the country, a state appeals court ruled yesterday that New Jersey residents do not sign away their constitutional rights when they buy homes in private communities governed by homeowners associations.

The 5-year-old case pitted a handful of residents backed by the American Civil Liberties Union against the Twin Rivers Homeowners Association in East Windsor, Mercer County.

Twin Rivers, a housing development built on a former potato farm whose 10,000 residents are spread over 719 acres, is not a gated community. But it provides various amenities and services for the exclusive use of residents. The community, just off Exit 8 of the New Jersey Turnpike, includes two schools, a library and strip malls.

In a unanimous decision, the three-judge panel said residents living in developments like Twin Rivers are entitled to all rights guaranteed under the New Jersey Constitution, notably free speech. Purchasing property with restrictions in deeds does not take away those rights, the judges ruled.

The plaintiffs had contended Twin Rivers violated their rights by enforcing various rules and restrictions, including some that regulated the posting of lawn signs, limited access to a community room and dictated content of the organization's newsletter. The trial judge rejected their arguments, saying the dissident residents agreed to the conditions when they purchased their properties.

Yesterday, the appeals court agreed with the plaintiffs and remanded the case back to the trial court to consider whether the residents' constitutional rights were violated under the new standard.

"(Twin Rivers Homeowners Association), as owner of the common property in the community where plaintiffs live, should not be permitted to control their destiny, to the extent of depriving them of the right to express their views," the panel said.

The appeals court sided with the lower court's ruling on other issues in the lawsuit, including Twin Rivers' voting system for elections. Under the system, which both courts upheld, people in its most expensive homes get the most votes; tenants get none.

Lawyers for the Twin Rivers Homeowners Association and its president, who was sued individually, said they would appeal yesterday's decision to the state Supreme Court.

"Twin Rivers will appeal because, for the first time in the entire country, a court has said Constitutional rights apply to all homeowner associations. The decision is contrary to 25 years of New Jersey Supreme Court and Appellate Division decisions," said Barry Goodman, the lawyer representing the association.

In Goodman and Frank Pohl, president of the homeowners group, said all of Twin Rivers' rules would pass muster under the new constitutional standard.

"The decision doesn't affect the way we do things," said Pohl, an office supply salesman who has led the association for eight years.

Free-speech advocates representing the plaintiffs, meanwhile, hailed the ruling.

Frank Askin, head of the Constitutional Litigation Clinic and the plaintiffs' attorney, called the appeals court ruling "a historic opinion" and "an important victory."

"It's hard to exaggerate the significance of this decision," he said during a news conference yesterday at Rutgers Law School in Newark, whose Constitutional Litigation Clinic argued the case.

"For more than a million New Jerseyans who live in common-interest communities, this decision guarantees rights of free speech and democratic participation in their so-called private communities."

If the defendants appeal to the state Supreme Court, Askin said, "it is likely that we will then cross-appeal over the issue of weighted voting."

Haim Bar-Akiva, a plaintiff in the lawsuit and a resident of Twin Rivers for more than 20 years, said he was elated by the ruling. He and his wife appeared at the news conference in Newark.

"I hope that all homeowners in New Jersey will (enjoy) it for the years to come," said Bar-Akiva, a retired engineer.

In New Jersey, 40 percent of private residences and more than a million people are governed by homeowners' associations, according to the state Department of Community Affairs. Nationally, as of 1999, 42 million Americans belonged to such associations, according to testimony offered at trial.

Robert H. Nelson, a professor in the School of Public Policy at the University of Maryland, called yesterday's ruling "an important development, even from a national point of view."

"By and large, courts tend to uphold the associations," said Nelson, author of "Private Neighborhoods," a book tracing the growth and increased power of community associations around the country. "This one went against the trend."

J. David Ramsey, a Morristown lawyer who is past president of The Community Association Institute in Alexandria, Va., said he was "concerned" by the ruling.

"We endorse parts of it, but there are parts that we are concerned about," he said. "I wouldn't argue that people can put out political signs. But 'all constitutional freedoms'? Which protections apply is not clear."

Despite the contentious nature of the dispute, none of roughly 15 Twin Rivers residents approached by a reporter yesterday knew any details about the lawsuit.

But at the Bar-Akiva home, the end unit of a row of townhouses, the answering machine blinked with a number of congratulatory messages.

The couple, who has three grown children, has lived in Twin Rivers for 24 years, first as renters and then as homeowners. Their battles in Twin Rivers began in 1993 when the board fined the couple $1,200 when they refused to change the color of their front door.

In 1996, the couple asked for and was denied details about the board's budget. In 1997, Margaret Bar-Akiva said, she founded Common-Interest Homeowners Coalition, to represent homeowners.

A few months later, according to Haim Bar-Akiva, the board sued the couple over the design of their storm door.

"This is not about nuisances. This is about loftier issues," she said yesterday, as she and her husband celebrated their victory quietly over a cup of tea. "It's hard to see something so indecent and not try to do something about it."

Staff writer Tom Feeney contributed to this report.