Welcome to Ungated

Thanks for tuning back in to our long-running show Twin Rivers, Twin Rivers.  After a more than six-year run, we have reached our final episode with today’s ruling from the New Jersey Supreme Court.

Anyone with an interest in community associations is familiar with the Twin Rivers saga.  But in case you missed it, our story begins with a handful of residents in this NJ community of 10,000.  They claimed Twin Rivers was not a community association, but a government, and that a variety of community rules were infringing on their rights of free speech and assembly as guaranteed by the New Jersey Constitution.  They enlisted the help of the American Civil Liberties Union, along with Professor Frank Askin and his students at Rutgers University’s Constitutional Litigation Clinic, to have the courts, rather than the residents, determine the rules for their community. 

It has been an up and down story throughout.  First the Trial Court found for the defendants.  Then the Court of Appeals issued a partial reversal, finding for the plaintiffs on three issues.  But you can read more about the history of the case and the various court decisions in my previous blog post and on the CAI Twin Rivers page .

So let's cut right to the chase.  After a very long and very winding legal road, including an amicus brief filed by CAI on behalf of the Twin Rivers Homeowners Association, the New Jersey Supreme Court unanimously reversed the Court of Appeals, reinstated the Trial Court decision, and ruled today that:

• Residents of community associations in New Jersey not only have the right to express themselves, but also enjoy the freedom to set reasonable restrictions governing that expression within their communities
• Associations are not governments for constitutional or operational purposes
• The relationship between homeowners and their association is based on a contractual agreement that is fundamental to the nature of communities like Twin Rivers
• And as is always the case, effective governance is the art of weighing the rights and obligations of the individuals with the interests and responsibilities of the organization as a whole

The Court concluded, "... in balancing plaintiffs' expressional rights against the Association’s private property interest, the Association’s policies do not violate the free speech and right of assembly clauses of the New Jersey Constitution.”  The full text of the Supreme Court decision can be read here. 

This is an important victory for homeowners and associations across the country.  It validates and supports almost four decades of legislative history and judicial precedent regarding the status of community associations, it further defines and protects the rights of all homeowners, and it supports the traditional concept that government (whether it be the executive, legislative or judicial branches) should not interfere with private contracts and associations freely entered into.

So as the curtain finally comes down on our story, CAI thanks all those involved for the time and energy brought to this important precedent setting case.  We hope that association boards, as well as individual homeowners, will look to the NJ Court’s opinion for guidance and inspiration in developing, implementing, and administering reasonable rules in their communities.

As a matter of law, a federal agency only has the specific authority granted to it by Congress. That’s why CAI looked skeptically at the latest attempt by the Federal Communications Commission (FCC) to claim authority to regulate an association’s ability to enter into exclusive agreements with video service providers.

You see, the FCC looked at this issue several times in the past, but quickly determined that they didn’t have the authority to regulate services in this area.  But this time they suddenly ‘discovered’ an existing statute that they were not previously aware of that grants them this power. After this amazing revelation, the FCC issued a call for comments on what effected parties think about this claim. CAI made sure the voice of community associations was heard.

In short it’s about market power and access. Associations and developers use exclusive contracts to obtain an expanded set of services for their residents.  Such agreements are a strong incentive for service providers to invest the thousands and even millions of dollars required to extend their networks to serve new communities on the growing edge of an urban area. Limiting an association’s right to enter into such contracts diminishes an association’s ability to negotiate with providers to obtain bulk rates, quality service commitments, facility upgrades and new services for their members. 

But even if you disagree, the FCC, like all federal agencies is required to obtain a legislative mandate before it can extend its regulatory authority. The ‘discovery’ of a provision in existing law that the Commission previously overlooked shortchanges the democratic process. If there exists a growing problem with such contracts (a subject certainly open to debate), then the FCC is required to petition Congress to expand its powers accordingly. That way the debate will be open and transparent, rather than taking place in the less visible and more opaque world of regulation drafting.

Traditionally an agency or commission can take anywhere from several months to several years to review comments and follow up with either a determination, a call for additional comments or a proposed rule. We will be watching.

A copy of CAI’s comments can be found here. It’s just another example of our work to protect associations from over-regulation.

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Well, it has been a while since I posted:  Blame a West Coast trip for the CEO-MC Retreat, some early summer vacation days with my family, and an unplanned altercation with my appendix.  Today's post is about leadership, or more properly an opportunity for our members to participate in the leadership of our organization.

CAI's governance consists of a Board of Trustees supported by three Membership Representation Groups (MRGs), who are elected to represent our three core constituencies, community volunteer leaders, professional community managers, and business partners.  In addition to representing their particular groups, MRGs provide policy input to the Board, assist staff in reviewing and designing programming, and help set the organizations direction through our annual planning and review process.  Most importantly, each MRG selects from among its membership individuals to serve on the Board of Trustees.

MRGs typically meet in person twice a year, at a planning retreat in January/February and at CAI's National Conference in April/May.  In addition, each MRG meets via conference call throughout the year.

MRGs are composed of CAI members elected by their peers to serve for a two-year term.  The key requirements for participation on the MRG are a membership in good standing in the organization and a willingness to serve.  You can learn more about each MRG and how to nominate yourself for an open MRG post by submitting an on-line application no later than July 19th.  An electronic election open to all members will be held in August to select new MRG members for service beginning January 1, 2008.  Watch your email for an alert when the election opens.

I invite you to consider nominating yourself for one of these open positions.  CAI's continued growth and success is dependent on the leadership, vision, and participation of our members.