New Jersey Homeowners Fight Aesthetic Rules
DEBBIE ELLIOTT, host:
About one in six Americans live in a private community controlled by a homeowners association or condo board, and that number is growing every year. These communities operate as private corporations run by boards of directors, but a recent appeals court decision in New Jersey could help homeowners have more say in how their community is run.
The court ruled that just because homeowners voluntarily sign contracts that dictate everything, from the color of their houses to whether they can post lawn signs, they don't give up their constitutional right to free speech. Nancy Solomon has more.
NANCY SOLOMON reporting:
The case of the Committee for a Better Twin Rivers versus the Twin Rivers Homeowners Association began with a decorative storm door.
Ms. MARGARET BAR-AKIVA (Homeowner, Twin Rivers): I thought I had cleared it with the architect, and a few months into it, they told us, oh, your door is violative of architectural standards.
SOLOMON: Margaret Bar-Akiva fought her homeowners association board and lost. That set off years of wrangling that morphed from a petty grievance to issues of freedom of speech and whether there was a level playing field for any homeowner who wanted to run for the board. When she ran for the board, she was told she couldn't place her campaign signs on the lawns, and the president of the association used the private community's newsletter to criticize her.
Ms. BAR-AKIVA: All the power is stacked in favor of boards, so when you have scrupulous, decent people on the board, it's possible that these homeowner associations can come along well. Once there are problematic people on the board, then it's downhill for homeowners from then on.
SOLOMON: Bar-Akiva's husband and other homeowners sued the association and again they lost. Like many cases around the country, the trial judge treated the case as a contractual dispute, and since the homeowners signed the contract, they had to abide by it. The Bar-Akiva's lawyer, Frank Askin of the Rutgers Constitutional Law Center, appealed and won a decision that is being closely watched at private developments across the country.
Professor FRANK ASKIN (Constitutional Litigation Clinic, Rutgers School of Law): The so-called private homeowners associations are not so private. They are quasi governmental bodies who must respect fundamental rights protected by the New Jersey constitution, such as rights of freedom of speech and rights of democratic participation in the community.
SOLOMON: That means the board of directors at Twin Rivers has to behave more like a city council and give residents an opportunity to challenge its decisions. After all, the sprawling development in the middle of the state has 10,000 residents, fines its members for violations, and levees assessments for additional expenses, including this legal fight it plans to appeal to the New Jersey Supreme Court. The association's lawyer, Barry Goodman, says the rules are fair and don't require any further intervention.
Mr. BARRY GOODMAN (Attorney, Twin Rivers Homeowners Association): The overwhelming majority of people who move into homeowners associations are very happy with the homeowners association. That's why they move there. They like the rules. They're aware of them when they move in. So I don't really think that this is necessary.
Mr. EVAN MCKENZIE (Author, Privatopia): It's not just a membership in an organization like the Kiwanis Club. This is your home.
SOLOMON: Evan McKenzie is the author of Privatopia: Homeowners Associations and the Rise of Private Residential Government, and he teaches at the University of Illinois. He says privately run developments are like any regular municipality except the residents can't challenge the board of directors when they disagree with how their community is being run.
Mr. MCKENZIE: Let these people have the basic protections of American citizens in their own neighborhoods instead of saying, well, you joined a private club and now you've lost all your liberties. Well, how can that be when we have municipalities basically forcing developers to build homeowner-association-run property so that people go into metro areas and they can't find anything else.
SOLOMON: A national poll found 71 percent of residents are happy with their association, but in New Jersey, the disgruntled minority, whether they're fighting over a storm door or voter fraud on their association's board, now have a right to free speech in a private space.
For NPR News, I'm Nancy Solomon.
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