Homeowner associations' rules are tested in N.J.

Twin Rivers dissidents say governing board is heavy-handed

September 12, 2002|By Laura Mansnerus | Laura Mansnerus,NEW YORK TIMES NEWS SERVICE

EAST WINDSOR, N.J. - The dissenting homeowners at Twin Rivers, a vast 1970-vintage housing development of 10,000 residents on the exurban plains here, say their homeowner association autocratically denies them the rights that most citizens take for granted.

The homeowner association says that if the dissidents dislike like living here, in central New Jersey, they should move.

Now the handful of dissenters, backed by the state chapter of the American Civil Liberties Union, are suing the homeowner association in a lawsuit that could change New Jersey law and prove influential in other states as well.

At a time when one in six Americans lives in a development governed by a property owners' association, the dissidents in Twin Rivers argue that their association resembles a local government enough to be subject to constitutional restraints.

The suit says the homeowner association board has shut down the dissidents' political campaigning, denied them access to financial records and voting lists and skirted ordinary democratic voting processes. Speaking over coffee, two former board members, Dianne McCarthy and Margaret Bar-Akiva, and Bar-Akiva's husband, Haim, said the board passed resolutions, including a ban on signs on front lawns and common areas, to squelch political opposition.

Accusations denied

The board denies most of the accusations but says that in any event it was merely following its own bylaws, as it is bound to do, and should not be deterred by a few people who dislike the rules. Whatever it did, the board argues, it did as a nonprofit corporation, not a government.

Until the 1970s, homes governed by property owners' associations were rarely seen outside vacation colonies and scattered wealthy neighborhoods.

Now "common interest developments," including condominium and cooperative associations but more often neighborhoods of single-family homes, number well over 200,000, by the estimate of the Community Associations Institute, a national group for homeowner boards and managers.

"This is a fundamental test case, not only for New Jersey but for the country," said Frank Askin, the director of the Constitutional Litigation Clinic at Rutgers Law School in Newark, who is handling the suit.

The trouble in Twin Rivers began as an accretion of tiny quarrels, and in this case the grievances were those of McCarthy and the Bar-Akivas.

McCarthy and Bar-Akiva regularly accused the board of unnecessary secrecy and a heavy-handed governing style. Haim Bar-Akiva challenged the board at meetings. With a few other residents, they formed a faction of the kind that irritates local officials everywhere.

The Twin Rivers Homeowners Association, in a loose sense, is a democracy, since its nine-member board is elected, and Bar-Akiva and McCarthy won three-year terms in the 1990s.

They were unpopular with other board members, though, especially when they became involved in 1997 with a statewide group promoting legislation to rein in homeowner associations.

Receiving notice

Shortly after they did, the Bar-Akivas received notice that the mullions in their storm door violated the association's architectural rules. A panel appointed by the board found that the door was acceptable, but the board persisted and, a year later, sued the Bar-Akivas.

At the time, McCarthy was campaigning for a seat on the board and putting up signs, which she said were defaced. She won anyway, but after her term started in 1999, the board passed a resolution forbidding signs more than 3 feet from homes.

The board also established a procedure for disciplining members who disclosed information that the board deemed confidential, a change that McCarthy said was adopted because the board suspected that she had discussed the storm-door litigation and other board business with the Bar-Akivas. McCarthy was quickly accused of violating the new rule and censured.

By 2000, the Bar-Akivas, McCarthy and a half-dozen other residents had set up their own civic group, the Committee for a Better Twin Rivers. They demanded financial documents and voting lists from the board but were refused. The committee and several individuals, including Haim Bar-Akiva (but not Margaret) and McCarthy, filed suit in December 2000.

Trial likely

Now it appears that the case will go to trial, in state Superior Court in Mercer County, since both sides conceded last week that mediation attempts failed. The development's residents are being assessed for the fight: The association plans to spend $300,000 of its $3.9 million budget this year on its defense in the case.

The Twin Rivers association, like most homeowner associations, collects maintenance fees and lets contracts for professional managers and services like trash collection. The associations supplant zoning laws with their own land-use plans, control recreation areas, and, in the role that probably earns them the most hostility and ridicule, enforce architectural rules.

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