Condo owners win some battles for municipal services, but fight is far from over

January 03, 1993|By Andree Brooks | Andree Brooks,New York Times News Service

Residents of condominiums, co-ops or homeowner associations spread over many acres have been fighting for more than a decade for such municipal services as garbage pickups and road maintenance.

Their argument has been that they pay the same level of property taxes as neighbors in one-family houses on separate lots, so why shouldn't they get the same services?

The answer, according to Benjamin Lambert, a lawyer in Woodbridge, N.J., and president-elect of the New Jersey chapter of the Community Associations Institute (CAI), a national network of such communities, is that the project's developer probably bargained away those rights in a deal with the town.

The trade-off let the developer build more units than would otherwise have been allowed.

But the residents have since discovered they could change that seemingly inequitable state of affairs through political pressure or through the courts, which have tended to find such agreements discriminatory.

The costly fight is far from over, however. Several new developments suggest that although individual battles are being won on paper they soon become hollow victories.

More vigilance and persistent political pressure may be needed if paper victories are to translate into permanent benefits.

In New Jersey, for example, the common-ownership side thought it had won an outstanding victory when the Legislature passed the Municipal Services Act of 1990. It required municipalities to provide equal services or reimburse the associations for the cost.

But just before the law took effect the New Jersey League of Municipalities sued, claiming the law was unconstitutional because it denied equal rights to owners of rental buildings.

A state court upheld that view in November 1990, but the ruling was overturned on appeal. The league then asked the state Supreme Court to review the case.

Meanwhile, no services or reimbursements were being provided except in a handful of towns where deals independent of the new law had been struck.

Last October, however, the league and the New Jersey chapter of CAI hammered out an agreement along the lines of the original bill that is expected to result in new legislation next year. Preliminary estimates by managers indicate it should reduce the common charges of unit owners by about $15 a month.

Connecticut, Massachusetts, Virginia and Florida are among states now planning to consider bills similar to New Jersey's.

But whether it will really work remains an open question. For one, the reimbursements will have a five-year phase-in.

"Our recommendation is not to reduce common charges or use the money for anything else for at least a year," said Roy Minieri, president of Eastern Community Management Co. of Red Bank, N.J., which manages more than 50 associations. "We want to be certain exactly how much the savings will be."

And they may never be great. Consider how communities and counties in other states have responded to similar edicts. Stephen Marcus, chairman of the Legislative Action Committee of the New England chapter of CAI, cites Easton, Mass.

Easton, he said, had bowed to local political pressure in 1988 and agreed to pick up the trash belonging to residents of its condominium and homeowner associations.

But before the details were worked out it slapped a user fee for trash collections on all town residents -- on average about $120 a year for each household.

Residents of common-ownership communities similarly thought they were in the money when Montgomery County, Md., agreed in 1986 to set up a reimbursement program to cover a wide range of costs associated with maintaining streets owned by these developments.

Provided the roads were through streets open to general traffic, the associations could apply for reimbursement for repairs, lighting and snow removal. A lump sum was to be set aside each year and divided among all the associations that applied and qualified. Some 90 associations now do so on a regular basis.

But is it really a victory? "We've been disappointed," said Molly Ellis, director of community services for the Montgomery Village Foundation, an umbrella group of 11 homeowner associations and two condominiums.

Since 1988, she said, budget cutbacks have been whittling away the amount allotted. At its best it covered 15 percent of the associations' costs. By 1991, she said, it was down to 10 percent.

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