February 13, 2006 | By Editorial; The Star Ledger
Free speech in suburbia
Is an American homeowner free to put a political sign on his or her property? One would think so. Moreover, one also would think that making such a statement would be highly unlikely to have an adverse effect on the value of other property in the neighborhood; as everyone knows, it's a widespread phenomenon around election time. Nevertheless, a handful of residents of Twin Rivers in East Windsor has had to fight a lengthy and expensive court battle to affirm their own right to this kind of free speech.
Twin Rivers isn't a municipality. It's a planned community governed by a homeowners' association that owns the community's common property and provides municipal-like services to the residents. In New Jersey, some 1.2 million people live in places like Twin Rivers, and it's estimated that 40 percent of new housing units in the state will be in such communities. Last week, in a ruling with national implications, a three-judge state appellate panel said that Haim Bar-Akiva and two other Twin Rivers residents who joined him in the ACLU-backed lawsuit can't be barred by the local homeowners' association from posting campaign signs, using the community center for a meeting or having their views printed in association newsletters. The fact that they purchased their property with restrictions in the deeds doesn't take away these rights, the judges said. The finding, if upheld on appeal, will liberate residents of New Jersey communities overseen by homeowners' associations or condo and co-op boards from the imposition of at least some of the arbitrary and even dictatorial orders that can emanate from their governing groups in the name of preserving property values.
The appellate panel overruled a decision by Superior Court Judge Neil Shuster in Mercer County that the Twin Rivers Homeowners Association was exempt from following the New Jersey constitution because it is a private business entity. Citing the constitution's "broadly applicable right to free speech," the judges said, "we conclude, in balancing the interests of the parties, that ... rights to engage in expressive exercises, including those relating to public issues in their own community, ... must take precedence over the TRHA's private property interests." It remanded the case to the trial court to review Twin Rivers' rules on signs, newsletters and community-room use under the newly defined standard.
The decision may not affect the power of homeowners' associations to regulate such mundane activities as bike riding or choice of housepaint color, but it takes aim at clear violations of the right of expression. In 2003, for example, Ralph and Dori McIlvaine of the Evergreen development in Hamilton were fined $1,000 by their homeowners' association for disobeying the association's order not to fly a POW-MIA flag after Army Pvt. Jessica Lynch was taken prisoner in Iraq. In 2004, George Shafer of the Village Grande community in Bordentown Township was forced by his association to pay $600 for putting a Bush-Cheney campaign sign on his lawn. It's to be hoped that the court's ruling eventually will put an end to this kind of anti-democratic limitation on free speech.