FRANK ASKIN, ESQ.
Rutgers Constitutional
Litigation Clinic
Attorney for Plaintiffs
on behalf of the ACLU of NJ
LENORA LAPIDUS, ESQ.
American Civil Liberties Union
Of New Jersey Foundation
SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION-MERCER
COUNTY
COMMITTEE FOR A BETTER
TWIN RIVERS (CBTR);
Plaintiffs,
DOCKET NO. C-121-2000
vs.
TWIN RIVERS HOMEOWNERS’ CIVIL ACTION
ASSOCIATION (TRHA); TWIN
RIVERS COMMUNITY TRUST;
COMPLAINT FOR INJUNCTION AND
DECLARATION OF RIGHTS
Defendants.
INTRODUCTORY STATEMENT
2. This
is an equitable action against the defendants for temporary and
permanent injunctive relief and
declaratory judgment.
3. Defendants have engaged and are
engaging in actions and practices
that deny to plaintiffs the right of democratic participation in the
governing affairs of the Twin Rivers Homeowners’ Association (TRHA) as
guaranteed to them by common law, statute and the New Jersey Constitution.
4. Plaintiffs have no adequate remedy
at law to protect their rights and
seek equitable relief to prevent
further injury that cannot be compensated with monetary damages.
COUNT ONE
[POLITICAL SIGNS]
53. On
information and belief, the restrictions against posting signs on one’s
own lawn more than three feet from a house are
selectively enforced against supporters of CBTR.
Wherefore plaintiffs pray for the following relief:
· Injunctive relief requiring the
Board to allow the posting of political signs on their own property and on
common elements under reasonable regulation.
· Reasonable attorneys fees and legal
expenses
· Any other relief that the Court
determines equitable or just.
COUNT TWO
[ACCESS TO
THE COMMUNITY ROOM]
Wherefore plaintiffs pray for the following relief:
· A declaration that TRHA Resolution 98-15 denies them
equal protection of the laws and unreasonably and unconstitutionally violates
Plaintiffs’ right to access to the community room on a fair and equitable
basis.
· Temporary and permanent injunctions mandating TRHA to
allow Plaintiffs to utilize the community room in the same manner as other
similarly situated entities.
· Reasonable attorney fees and legal expenses.
· Any other relief that the Court determines equitable
or just.
COUNT
THREE
[ACCESS TO THE TWIN RIVERS TODAY NEWSLETTER]
77. A
recent Community Associations Institute (CAI) poll indicates that 93% of
homeowners in planned unit communities read their
community newsletters. See http://www.cairf.org/research/gallup-9.html.
Wherefore plaintiffs pray for the following relief:
· A declaratory judgment that the TRT newspaper is a common
element.
· A declaratory judgment that all TR
residents should have equal access for expression of their views concerning the
management of the community.
· A permanent injunction enjoining the
president of the Board from using TRT as his own personal political trumpet and
requiring the Board to create rules for equal access to TRT by all TRHA
members.
· Reasonable attorney fees and legal expenses.
· Any other relief that the Court
determines equitable or just.
COUNT FOUR
[TAPE-RECORDING OF OPEN MEETINGS OF THE TRHA]
79. The Board of
Trustees’ Secretary tape records all Board meetings. The
Board does not permit members of Twin Rivers’ access
to these tapes. On information and
belief, after the Secretary prepares the minutes, she then destroys the
tapes.
80. TRHA members
frequently contest the accuracy of the minutes of the TRHA
meeting.
81. Under the
state law all board meetings must be open to the TRHA members.
Wherefore plaintiffs pray for the following relief:
· An injunction requiring the TRHA Board to allow the
tape recording of the Board meetings.
· A declaratory judgment stating that
members of the TRHA have the right to tape record all open TRHA meetings.
· Reasonable attorney fees and legal expenses.
· Any other relief that the Court
determines equitable or just.
COUNT FIVE
[ACCESS TO FINANCIAL DOCUMENTS]
89. The
Board abused its discretion when it denied Plaintiff Bar-Akiva’s
requests for financial documents.
90. TRHA
is a non-profit corporation which is bound by New Jersey non-profit
corporation statutes. N.J.S.A. 15A:5-28, which is based on N.J.S.A. 14A:5-24 of the New
Jersey Business Corporation Act, provides for access by members to corporation
books and records. TRHA is bound by
this statute and must provide access to the books and records of the
corporation to members of the TRHA.
Wherefore plaintiffs pray for the following relief:
· Temporary and permanent injunction disallowing
the TRHA Board from denying access to
financial documents without specification of the reasons for concealment.
· Reasonable attorney fees and legal expenses.
· Any other relief that the Court
determines equitable or just.
COUNT SIX
[RESOLUTION 2000-1]
93. In
February 2000 the TRHA passed Resolution 2000-1 purporting to
provide the Board with the authority to
discipline members suspected of disclosing allegedly confidential information.
94. On
March 1, 2000, Defendant Scott notified Plaintiff Dianne
of her suspected violations of
Resolution 2000-1. All but one of these
alleged violations had occurred prior to the enactment of Resolution
2000-1. The allegations were not supported
by any details or documentation of the specific acts which constituted her
violations.
99. Resolution
2000-1 is overly broad, vague, and encroaches on the individual rights of Board
members and residents.
100. Resolution
2000-1 unduly burdens Board members and denies TRHA
members access to vital information concerning their
community.
101. According
to the DCA, Sections “v” through “vii” of Resolution 2000-1 are in violation of
the Planned Real Estate Full Disclosure Act, N.J.S.A. 45:22A-46a. (See
Exh. F)
102. Resolution
2000-1 was promulgated in bad faith and is arbitrary and
capricious.
103. Resolution
2000-1 has the appearance of being intended for the sole
purpose of removing a certain Board member, which is
violative of the election and removal process for Twin Rivers Board
members. According to the TRHA by-laws,
Board members are to be removed only by a vote of the members of the community. Resolution 2000-1 is an effort to circumvent
the established procedure for Board member removal.
104. Resolution
2000-1 serves no legitimate purpose.
Wherefore plaintiffs pray for the following relief:
· A declaratory judgment that Resolution 2000-1
is in violation of N.J.S.A. 45:22A-46a and common law.
· A declaratory judgment that Plaintiff McCarthy
never violated any resolution and her censure be expunged from the records of
the TRHA as though it had never occurred.
· Reasonable attorney fees and legal expenses.
· Any other relief that the Court
determines equitable or just.
COUNT SEVEN
[ACCESS TO VOTING LISTS]
116. A
member of the Board, Plaintiff Dianne McCarthy, has been denied
access to the list of eligible voters. On information and belief, other members of the Board do have access to the
list of eligible voters.
117. Currently
it is unknown what percentage of voters are ineligible to vote
and for what reasons.
118. In order to effectively campaign for the elected
positions of the TRHA,
plaintiffs need access to the
lists of eligible voters. The list is necessary to identify and contact
eligible voters.
119. The TRCT has recently allowed for conditional access by
Plaintiffs to the
voter lists. The TRCT has only allowed for the inspection
of lists of all Twin Rivers residents without any distinction between those who
are eligible and ineligible to vote. In
addition, the TRCT has required that an overly broad and unreasonable indemnification
agreement be signed before the release of the list. (See Exh. G)
Wherefore plaintiffs pray for the
following relief:
· Temporary and permanent injunctive relief
requiring the Board to allow the plaintiffs access to lists of eligible voters
without unreasonable conditions.
· Reasonable attorney fees and legal expenses.
· Any other relief that the Court
determines equitable or just.
COUNT EIGHT
[ALTERNATIVE DISPUTE RESOLUTION]
121. N.J.S.A.
45:22A-4(c)and its legislative history, Senate Act 217, clearly
requires defendants to “provide a fair and efficient
procedure for the resolution of disputes between individual unit owners and the
association . . . which shall be readily available as an alternative to
litigation.”
122. The current
alternative dispute resolution mechanism at Twin Rivers is
governed by Resolution 99-4, which was promulgated on
March 25, 1999. Resolution 99-4
provides for an inadequate and ineffective system of dispute resolution.
123. Resolution
99-4 limits the definition of a dispute.
Paragraph 5 of Resolution
99-4 states that, “[a] dispute shall not include
issues relating to (i) the payment or nonpayment of regular and/or special
common expense assessments levied against a Unit in accordance with the
governing documents, (ii) election issue, nor (iii) alleged noncompliance by
the Association or the Association Board with the governing documents or
applicable law. Paragraph 5, in
essence, exempts the Board from any and all alternative dispute resolution
mechanisms in violation of New Jersey law.
In particular, it denies ADR for disputes involving assessments for disenfranchisement.
126. On
information and belief, the absence of a convenient and inexpensive
mechanism for resolving disputes between the TRHA and
its members has resulted in the disfranchisement of many other TRHA
members. Those members have been
assessed various amounts for alleged infractions of TRHA rules and failure to
pay disputed assessments. If such
members are unwilling to pay those fines under protest and undertaking the
substantial expense of a lawsuit against the TRHA for reimbursal, their voting
rights are suspended.
127. Thus, by
refusing to honor state law and create an alternate dispute
resolution system, the TRHA violates both the
members’ statutory right to an effective dispute resolution system as well as
the right to vote.
Wherefore plaintiffs request pray for the following
relief:
· Permanent injunction requiring the Board to
establish a dispute resolution process as described herein.
· Temporary and permanent injunctions
re-establishing the voting rights of Plaintiff Bruce Fritzges and other TRHA
members similarly situated.
· Reasonable attorney fees and legal expenses.
· Any other relief that the Court determines
equitable or just.
COUNT NINE
[DENIAL OF VOTING EQUALITY]
130. Since
the Twin Rivers Board exercises powers of management similar to
those exercised by municipal corporations, this
weighted voting scheme violates principles of equal protection embodied in
Article I, Paragraph I of the New Jersey Constitution.
131. The
TRHA governing board, although elected by TRHA members, is the
product of an electoral system that is a substantial
variance from the one-person, one-vote principle guaranteed by the New Jersey
Constitution.
Wherefore plaintiffs pray for the following relief:
· Declaratory judgment that the weighting voting
provision of the TRHA by-laws and charter violates the New Jersey Constitution
and must be reformed.
· Reasonable attorneys fees and expenses.
· Any other relief that the Court determines equitable
or just.
WHEREFORE, plaintiffs pray for the relief requested
in Counts 1 through 9.
_________________________
Frank Askin,
Attorney for Plaintiffs
On behalf of the American
Civil
Liberties Union of New Jersey
(973) 353-5687
Lenora Lapidus, Esq.
American Civil Liberties Union
Of New Jersey Foundation
55 Halsey Street
Newark, NJ 07102
Date: February
12, 2001