Historic Radburn Assn: does not need to adhere to democratic principles

In a continuation of constitutional protections first raised by the same homeowners’ attorneys as in Twin Rivers[i], Frank Askin of ACLU and Renee Steinhegan of the New Jersey Appleseed Public Interest Law Center, the homeowners argued in Radburn[ii] that “the principles of representative democracy require the Association to allow all Radburn homeowners to nominate candidates to serve on the Board.”  The ACLU brief argued, that

 [i]t is essential to the well-being and democratic rights of the New Jersey residents who live in common interest communities that this Court repudiate the trial court’s holding [in this case] that electoral procedures that `offend[] pure democratic sensibilities’ are acceptable under” the law.

 And the trial judge reflected that, “[t]here is no doubt that the current nomination procedure offends pure democratic sensibilities.” and that, “absent any specific legislative authority, he could not impose a strictly democratic nominating procedure.”  The judge further added insult to harm, completely contradicting the CAI propaganda that HOAs are the best form of direct democracy:

Characterizing Radburn’s current system of nomination as oligarchic or paternalistic or elitist or being out of step with the times does not, in my view, render it illegal . . . . It is not for the Court to say whether the system is wise. 

Furthermore, as I have pointed out in the past that the Restatement of Servitudes, while providing some protections and guidelines for HOA governance, is essentially a pro-HOA treatise that even recommended that equitable servitude law should prevail over any conflicts with constitutional law.[iii]   Yet, the court agreed that election procedures must simply be reasonable,

the Restatement provides that an association’s “election procedures must provide a reasonable opportunity for eligible members to become candidates for election and to make their views known to the electorate, and a reasonable opportunity for eligible voters to cast their votes.”[iv]

rejecting the homeowners’ argument,

“they [the homeowners] compared the importance of their voting rights within the community to their “voting rights in any public elections” and contended that “constitutional provisions regarding voting should be expanded to include . . . homeowner’s associations.

with,  [T]he voting rights of members of an association such as [Twin Rivers] are governed by contract law and by the relevant statutes for non-profit associations.”  and with,  [T]he voting rights of members of an association such as [Twin Rivers] are governed by contract law and by the relevant statutes for non-profit associations.”

And adding more insult to injury, offers an editorial comment,

Here, while plaintiffs’ arguments have surface allure, we are mindful that all Radburn owners agreed to be bound by the Declaration of Restrictions, which neither guarantees membership in the Association nor references any rights with respect to the nomination and election of trustees. 

Please understand that the court’s support of pro-HOA laws, the restatement of servitudes, the placement of private contacts, the Declaration,  above constitutional law has created a public policy in favor of a second form of local American political governance, the HOA.[v]  And the HOA is held superior to the once supreme law of the land, the Constitution.

Notes


[i] Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007).  See critique of this opinion: The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights and Privatized Mini-Governments, Paula A. Franzese and Steven Siegel, 5 RUTGERS J.L. & PUB. POL’Y 630 (2008).  Part of the issue on Homeowner Associations: Problems and Solutions.

[ii] Moore v. Radburn, A-4284-07T2, N.J. Super. App. Div, March 18, 2010 ( See  http://www.leagle.com/unsecure/ page.htm?shortname=innjco20100318252).

[iii] Restatement Third, Property: Servitudes, § 3.1, comment h, AMR 2002.

[iv] Id, § 6.16, comment c.

[v] See The Foundations of HOAs, Part III. American Political Governments: HOAs under servitude law & local government under the Constitution (http://pvtgov.org/pvtgov/downloads/hoa_history.pdf).

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Published in: on March 19, 2010 at 5:09 pm  Comments (2)  
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  1. I’m one of the 16 individuals that sued the Radburn Association. Obviously, we’re very disappointed by the courts opinion. None of us in the lawsuit were given the association’s governing by-laws before purchasing our homes and the court knew that. The only reason people buying their houses now could know about this issue is that WE put the by-laws on the internet. The Radburn Association website only has the declaration of architectural restrictions but not the governing by-laws. Some people are still buying their homes not realizing that they have to pay “membership dues” but are not members. Radburn’s 2008 tax returns states that there are nine voting members and that the entire 1.3 million is collected from members. Obviously that’s not the case. We were told by the NJ Department of Community Affairs to seek help from the courts. Now the courts are telling us to go to the legislature. In the meanwhile, the residents go broke having no recourse against the self perpetuating board of trustees. Shameful this is happening in the US of A in the year 2010.

  2. Some historical notes:

    Radburn was begun in 1927 by the City Housing Corporation, a New York nonprofit group. CHC (City Housing Corporation, 1924-29) ” board had wealthy members like . . . Eleanor Roosevelt. . . . “When it started Radburn, CHC ha $4 million in assets . . . . It also secured a $5 million loan from John D. Rockefeller.

    A pioneer cluster development in Fair Lawn,New Jersey, Radburn is known to urban planners
    and developers the world over.

    A review of the Radburn experience indicates that the critical factors in its enduring success have been . . . ) a relationship between the Citizens Association and the Radburn Association, which provides for democratic operation and yet allows firm leadership

    By the 1970s . . . . while its operations were not always openly democratic, its residents retained a high level of participation.


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