Homeowner attorney Askin comments on Twin Rivers opinion

Homeowners’ association case: Mixed decision

NJ Voices (njvoices.com) Frank Askin

Residents of homeowners’ associations seeking free speech rights within their communities lost the immediate battles but may have won the war in the decision issued yesterday by the New Jersey Supreme Court in the Twin Rivers case.

In the most significant sentence in the obtuse 37-page opinion, the Court said that the more than one million residents of common-interest communities in New Jersey may “successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights.”

It is the first state high court in the country to rule that private homeowner associations may be subject to the free-speech provisions of a state constitution.

Of the three Twin Rivers regulations challenged in the case, the Court held that they were reasonable restrictions on residents’ rights, but not before rewriting one of them — the sign-posting rule — to make it more free-speech friendly.On that part of the case, the Court upheld a regulation that it said allowed homeowners to post a political sign in every window of their home.However, when the case was first brought, the regulation allowed only one sign per property – either in a flower bed adjoining the house or in a window. The trial court had misread the regulation to allow a sign in every window.

In adopting that interpretation of the rule, the Supreme Court said that it was not unreasonable, warning that “any restrictions on the exercise of [free speech] rights must be reasonable as to time, place and manner.”

The other regulations upheld involved restrictions on access for opposing views in the community newspaper and an allegedly excessive fee for rental of the community room.

The Court held that in light of the many alternative channels for communication available to Twin Rivers residents, the challenged rules were reasonable time, place and manner regulations.

Unlike, many common-interest communities, Twin Rivers allows residents to “walk through the neighborhood, ring the doorbells of their neighbors and advance their views.” The Court noted that the Twin Rivers plaintiffs had even distributed their own newspaper without interference.

This discussion in the opinion should give pause to the hundreds of other community associations in New Jersey which try to forbid contact among residents by prohibiting door-to-door solicitations and petition gathering. On the other hand, homeowners will be disappointed that the Supreme Court declined to find that homeowner associations themselves are “constitutional entities” more fully susceptible to the constraints of the State Constitution – as it found as to the state’s ubiquitous regional shopping malls in an earlier case.For the moment, the only constitutional provisions applicable appear to be the free speech/communication provisions of Article I. Although In a rather ambiguous section of the opinion, the Court does note that the private dwellings of residents are also protected “under due process standards from untoward interference with or confiscatory restrictions upon its reasonable use.” Only time will tell how that particular principle will be applied.

But in the meantime, the homeowners boards and management associations which were aligned on the side of the Twin Rivers Association should hold their applause at the outcome of the case.

(In the name of full disclosure, it should be noted that the writer was counsel for the Plaintiffs in the Twin Rivers case.)  

Published in: on July 27, 2007 at 6:31 am  Comments (1)  

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  1. An Open Letter To The New Jersey Supreme Court

    To the Supreme Court of New Jersey,

    My name is Robert Metcalf. I am not a resident of New Jersey. Yesterday I was deeply disappointed with your reversal in the Twin Rivers case. Throughout the history of the United States there have been watershed moments, during which the parties involved, be they ordinary citizens or high government officials, are faced with a decision where the long term ramifications far outweigh the matter at hand. I believe that the Twin Rivers case was one of those moments.

    In my view, the narrow focus of your reasoning missed the point. What is happening in America today with regard to the increasing “privatization” of almost everything is unconscionable. High courts are sometimes afflicted with myopia in defending the status quo, such as the “Dred Scott” decision. At the same time they can occasionally be enlightened with imagination and decisiveness that cuts through a flawed precedent and sets a new standard such as in “Brown vs. Board of Education”.

    The “corpratization” of America is a trend that is undercutting the very fabric from which the United States is woven. The fact that bodies, like yourself, are effectively letting corporations cancel our basic rights as citizens is leading us down a path that in the end will relegate the freedoms, for which such a high price has been paid, to the status of historical oddities that have no bearing on our day-to-day existence, whatsoever.

    60,000,000 million Americans live in deed restricted communities. That is 20 % of the country’s population. To continue to subject them to the ideas that “Constructive Notice” represents fair disclosure or that the “Business Judgment Rule” should have weight in their domestic lives simply hastens the demise of what we were all taught in grade school:

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    As Common Interest Developments continue to spread along with their more onerous relative, the “New Town”, let me ask all of you a question. Where do we, the citizens of The United States Of America, go to exercise our unalienable rights? Where does a citizen of a place like Reston Virginia go to feel the protections of The Bill Of Rights, when most of his or her entire life is spent within the confines of a private corporation?

    Yesterday, you had the chance to behave as true patriots. You had a chance to set a precedent that would reverse the trend that it is alright, even desirable to strip the citizens of their basic constitutional rights in the name of business efficacy and contract law. Instead, you decided that precedent had more weight than the true, overriding considerations concerning basic constitutional rights and public policy which the current environment cries out for.

    “Twin Rivers” was no more about signs on somebody’s lawn than “Dred Scott” was about Dred Scott or “Brown vs. The Board Of Education” was about an individual going to school. As the dynamics of life in America continue to change, so must the laws that we live by and the interpretation of the same. I hope that in the future, should the opportunity present itself again, all of you will take a broader look at exactly what “creatures of the law” like homeowners associations really mean, and what effect they have on what we call “The American Way Of Life”.


    Robert Metcalf
    Chadds Ford, Pennsylvania

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