Judge rules woman has
right to criticize builder
K. Hovnanian suit
against Tracey Kelly
is dismissed by court
A Superior Court judge has dismissed defamation charges brought against a Howell resident by the developer who built her home.
K. Hovnanian filed a counterclaim of defamation against Tracey Kelly after she and her husband, Philip, instituted a lawsuit against the builder alleging fraud and the use of bait and switch sales tactics relating to the purchase of their home.
In 1999, the Kellys received a tax reassessment from the county and township that lowered the assessed value of the home for which she had paid almost $300,000, to $90,000. Of the $90,000, $60,000 is the value of the land; therefore, $30,000 is the value of the house.
Seven other Country Meadows Estates I homeowners also received reassessments. The reassessments were made due to findings of structural defects in the homes.
Following the filing of her suit against the builder, Kelly was hit with a charge of defamation by K. Hovnanian following the publication of statements she made in a newspaper article regarding her ongoing battles with the builder.
In his written decision, Superior Court Judge Benn Micheletti said Kelly had a right to speak out about what she perceived as wrongdoing as a "public issue."
The judge wrote, "certainly the public has an interest in knowing if a local developer, who is one of the state’s largest developers, is building homes without proper permits, et cetera and possibly building homes that are unfit to live in."
Micheletti also wrote that because Kelly’s statements directly concerned the actions of a local developer who was producing a product for public consumption, her statements "must be found to concern a public issue." It is a public issue, the judge said, because the homes are subject to public inspection by state agencies.
"Commercial vendors have submitted their products for inspection and presumably invite public attention with the accompanying risk of occasional disparaging or defamatory comment," the judge wrote.
Kelly said she was pleased to have had the charges dismissed "after having them hang over my head for almost three years," and added she was grateful the judge was able to see "the truth of the matter."
"I have never said anything defamatory about K. Hovnanian. I have only spoken the truth," Kelly said.
K. Hovnanian spokeswoman Courtney Gayeski-Higgins said the builder did not wish to comment on the defamation charge.
Kelly said all along she had stated her opinion. She called the charge of defamation leveled against her by K. Hovnanian an attempt to keep her silent.
Kelly said the builder had "used their financial ability to file baseless charges against me to keep me from telling my community and others what I know about the safety and condition of the homes in Country Meadows I, Country Meadows II and Country Village."
So far, in the wake of Kelly’s three-year pursuit of allegations and findings of wrongdoing on the part of K. Hovnanian and Howell’s construction inspection and code department, four township inspectors have lost their jobs. Fines have been imposed against K. Hovnanian, which the firm is still in the process of appealing.
Kelly’s attorney, George Dougherty, of Katz and Dougherty, Lawrenceville, likened Kelly’s ongoing fight to "David against Goliath."
However, Dougherty observed, "the Goliath picked a fight with the wrong David."
Kelly, who is the mother of four, said it was not only the safety of her own children, but all the children in her community, that concerned her.
Dougherty, whose firm now represents several Country Meadows Estates homeowners who have also brought litigation against K. Hovnanian, said the second part of the issue concerns the question of what happened in Howell during the construction of Country Meadows Estates.
"It’s not a pretty picture. How did so many homes get built without a permit?" he asked.
Since bringing her case to the public’s attention, Kelly has periodically been contacted by other K. Hovnanian homeowners statewide for direction on how to proceed with a perceived grievance against the builder.
She expects to meet soon with homeowners at Society Hill, Newark, an affordable housing townhome community built by K. Hovnanian, to advise residents how to pursue their alleged grievances with the developer.
Buoyed by what she considers the court’s affirmation of her actions, Kelly said she "promised to continue to speak out and bring to the public’s attention many more public safety issues that plague these communities until all the homes are made safe."