OPINION

Associations’ rights should not trump free speech rights

By: Hank Kalet
   "Expressive exercises, especially those bearing upon real and legitimate community issues, should not be silenced or subject to undue limitation because of changes in residential relationships, such as where lifestyle issues are governed or administered by community associations in addition to being regulated by governmental entities." — Superior Court of New Jersey, Appellate Division, Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, Feb. 7, 2006
   Twin Rivers is, in many ways, a town unto itself at the eastern end of East Windsor.
   So are places like Clearbrook, Concordia and Rossmoor in Monroe, large private communities governed by homeowners associations that collect fees, arrange maintenance and set restrictions designed to protect the quality of life of residents.
   And yet, they also are private entities and are allowed to force rules on residents that most municipal governments could never get away with imposing.
   That was the crux of the lawsuit — Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association — filed by a group of dissident homeowners in the Twin Rivers development against the homeowners association, a suit that was decided last week by the state Supreme Court in favor of the homeowners board.
   The state court — in an opinion written by Supreme Court Justice John E. Wallace — said restrictions on the posting of political signs, access to the community center and access to authorship of the community newsletter are not governed by free speech provisions of Article 1 of the state constitution because the association is a private entity. Residents, the court said, relinquish certain rights when entering into their agreement to live in the community.
   Significantly, however, the court also left the courthouse door open, saying that the Twin Rivers decision "does not suggest … that residents of a homeowners’ association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights."
   The court attempted a balancing act in its decision, acknowledging the property rights of the homeowners association, but telling associations that there may be limits on how they use their powers.
   But in doing so, it essentially ignored that community associations are changing the ways in which we live, leaving in dispute a question that is likely to reverberate throughout the state and potentially around the country.
   The Star-Ledger earlier this year put the total number of New Jersey residents living under community associations at 1.2 million. Nationally, there were 57 million people living in community-association housing in 2006, with a total of 23.1 million housing units in 286,000 communities, according to the Community Associations Institute, an industry trade group that represents community and homeowners associations,
   That’s a huge number that appears to be growing exponentially.
   "It is the overwhelming majority of new housing," Evan McKenzie, a political science professor at the University of Illinois at Chicago and expert on homeowners associations, said last week. "Eventually, the total share of the housing stock that will be in community associations will be high."
   Mr. McKenzie, author of the 1996 book "Privatopia: Homeowner Associations and the Rise of Residential Private Government," is concerned that we are "going too far in recognizing them as governments" and allowing association boards to set rules that could be used to perpetuate their own power.
   "There is always the problem of them using the power they have in the association to kind of preserve their own power," he said.
   That’s his chief criticism of the Twin Rivers decision — that it perpetuates an imbalance of power in private hands with little public accountability. The associations have the money, the support of interest groups like Community Associations Institute and access to attorneys, he said. Most residents do not.
   And it leaves unquestioned the notion that we can continue to privatize our civic life without there being serious ramifications. The state Supreme Court recognized this in 1994 when it ruled that an anti-war group had a right to distribute fliers and collect petitions at a privately owned shopping mall. Malls, the court said at the time, have become the new town squares and, therefore, had to allow for some public activity.
   Communities like Twin Rivers are fast becoming towns unto themselves and residents should not have to sign away their constitutional rights to secure decently priced housing.
   I wish the Supreme Court would have heeded the state appellate panel, which acknowledged in its ruling last year that "community associations have supplanted the role that only towns or villages once played in our polity" and that "fundamental rights exercises, including free speech, must be protected as fully as they always have been, even where modern societal developments have created new relationships or changed old ones."
   We are giving community boards too much power to step in and set rules that govern what should be an open dialogue about policy and politics — whether it be at the municipal, state or federal level or about the construction of a new pool in the community or a challenge for a community board seat. At the very least, basic standards need to be created so that the free speech rights of residents are protected.
Hank Kalet is managing editor of the South Brunswick Post and The Cranbury Press, two Packet Publications newspapers. His e-mail is [email protected] .