PropertyProf Blog

Penalver From Fordham to Cornell

Brian Leiter reports that property prof Eduardo Penalver is moving from Fordham to Cornell.

Ben Barros

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Legal Affairs Debate Club on Eminent Domain

The Legal Affairs Debate Club this week features a discussion of the legislative response to Kelo.  I may have some comments as the debate progresses.

Ben Barros

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New York Case on Conversion of Body Part

The Second Circuit has issued an opinion certifying interesting questions regarding property rights in the human body to the New York Court of Appeals.  Widow of deceased donor gave both of his kidneys to his friend who was suffering from end-stage renal disease.  One kidney was sent to Florida for implantation into donee, but doctors determined that the kidney was damaged.  The doctors then requested the second kidney, but were informed that it had already been implanted into another patient.  The intended donee sued on a number of theories.  The district court granted summary judgment to the defendants.  The Second Circuit affirmed summary judgment on plaintiff's fraud count but certified questions regarding the donee's ability to maintain a private action against the defendants to the New York Court of Appeals.  Judge Jacobs dissented from the certification, asserting that under the facts presented, the intended donee was only entitled to one kidney.  The case is Colavito v. New York Organ Donor Network, Inc., No. 05-1305-cv.

Ben Barros

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Franzese on Common Interest Communities

Paula A. Franzese (Seton Hall Law School) has posted Privatization and its Discontents: Common Interest Communities and the Rise of Government for the Nice on SSRN.  Here's the abstract:

This article explores the phenomenon of privatization, or the shift from government provision of services to provision by the private sector, in the context of privatized neighborhoods. The proliferation of gated and walled communities, together with the significant rise of homeowners associations, contribute to patterns of homogeneity, conformity and exclusion that can yield dangerous consequences. Cultures of litigiousness, fear of the "other," civic alienation and resident dissatisfaction are among the by-products of these common interest communities' zealous pursuit of "the nice" place to live.

Ben Barros

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Fellowship in Housing and Community Development

Fellow - Georgetown University Law Center-Housing and Community Development Clinic.  2-year fellowship at Georgetown University Law Center leading to an LL.M. in advocacy; the stipend for 2006-2007 is approximately $46,155 (taxable) plus some benefits.  The Fellow will supervise 2nd and 3rd year law students in the  representation of community clients in the development of affordable housing, community-based economic development, and organizational capacity building.  The Fellow will also assist in the teaching of a weekly seminar.  Required: minimum 2 yrs. legal experience with background in transactional housing and/or business matters.  Spanish language ability is a plus.  Admission, or eligibility for admission, to the DC Bar is required.   Send letter of interest and resume by March 31, 2006 to Professor Michael Diamond, Harrison Institute, 111 F St., NW, Suite 102, Wash., DC 20001-2095.

Ben Barros

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Defining "Family"

Today's NY Times Magazine has a story about tensions arising from extended immigrant families living in the same home:

Manassas has seen a rapid influx of immigrants over the last decade. As in suburbs and smaller cities elsewhere, this has created quality-of-life complaints. Sometimes the outrage is over the jornaleros who gather at Home Depots to solicit daywork. Elsewhere, the gripe concerns overcrowding. One 23-year-old Mexican told The Palm Beach Post a couple of years ago that he, too, thought 10 unrelated workers living in a two-bedroom apartment was too much. "Eight people — three in each bedroom and two in the living room — that should be the maximum," he said. This is the problem in Manassas.

When crowding becomes commonplace, neighborhoods change. Parking disappears, and mountains of trash appear on the sidewalk on collection day. Between June 2004 and June 2005, The Washington Post reported, Manassas used its zoning code to move 400 people out of crowded single-family houses. But complaints persisted that huge, multigenerational extended families, including distant and sometimes dubious cousins, were making virtual boardinghouses out of homes built for a couple and two kids.

Manassas could not change the rules on how much living space each resident requires; those are set by the state. But the city can regulate how buildings are used. So in early December, Manassas tightened its definition of the adjective "family" in terms like "single-family home." Whereas the old code defined "family" as pretty much any group of people related by blood or marriage, the new definition limited it to immediate relatives of the homeowner. Parents, children and siblings were family; uncles, cousins, nieces and nephews were not. . . .

The American Civil Liberties Union of Virginia, handed a rare opportunity to cast its foes as un-American, was planning to sue Manassas not just because it "targets families based on their nationality" but also for "an unconstitutional government infringement on the right of family members to live together." The new ordinance began to look like a losing hand. In January, the city repealed it.

The story might make an interesting teaching tool to supplement Moore v. East Cleveland or cases on defining "single family" in a covenant.

The Saint Louis Post Dispatch also has a story on a similar issue involving a family being denied an occupancy permit because the parents were not married:

Black Jack's ordinance applies to unmarried couples with children. Under the law, a home cannot be inhabited by three or more individuals not related by "blood, marriage or adoption."

The ordinance recently has come under scrutiny because of Olivia Shelltrack and Fondray Loving. The couple purchased a five-bedroom, three-bath house in Black Jack and moved into the home last month with their three children.

But the couple was denied an occupancy permit because their household failed to meet the city's definition of family.

Ben Barros

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Funeral Homes Selling Body Parts

Prosecutors in New York have brought charges against four men alleged to have taken "organs from people who had not given consent or were too old to too sick to donate."

Prosecutors said Thursday the defendants made millions of dollars obtaining bodies from funeral parlors in three states and forging death certificates and organ donor consent forms to make it look as if the bones, skin, tendons, heart valves and other tissue were legally removed.

The indictment was the first set of charges to come out of a widening scandal involving scores of funeral homes and hundreds of bodies, including that of “Masterpiece Theatre” host Alistair Cooke, who died in 2004. The investigation has raised fears that some of the body parts could spread disease to transplant recipients. . . .

All four pleaded not guilty to charges of enterprise corruption, body stealing and opening graves, unlawful dissection, forgery and other counts. . . .

Nicelli was paid up to $1,000 per body to deliver corpses to a secret operating room at his funeral parlor, where Mastromarino would remove body parts, authorities said. Crucetta, a nurse, and Aldorasi allegedly helped Mastromarino.

Mastromarino made up to $7,000 a body by selling the tissue, authorities said, and the corpses were then returned to unsuspecting funeral directors for burial. . . .

Ben Barros

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King and Fairfax on Land Acquisition and Water Rights

Mary Ann King and Sally K. Fairfax (UC Berkeley) have posted Beyond Bucks and Acres: Land Acquisition and Water on SSRN.  Here's the abstract:

This Article will use historical experience and current practice to do three things. First, we chronicle early acquisitions’ tendency to overlook water. Second, we will offer a precise account of the confusion that can arise from combining conservation easements and water as property, most particularly in the western United States. Finally, we look at some tools that might minimize the confusion.

In Part II we first use a brief history of land acquisitions - from Niagara Falls in the 1880s to the Land and Water Conservation Fund Act of 1965 - to establish the context in which land-acquiring conservationists have long overlooked water. Perhaps the fact that land acquisition as a conservation tool, both full-fee and conservation-easement-based, first took hold in the eastern United States, where riparian doctrine prevails, explains the rather off-hand approach to water in these early acquisitions, what we call the “riparian mindset.” We also note some basic constraints on “just buying it” associated with these historic acquisitions of land-in-fee.

We briefly put water aside in Part III to introduce land trusts and conservation easements. First, we discuss state statutes that adjusted the common law of servitudes to accommodate conservation easements. Then we point to issues that would arise in any modern conservation easement, issues that intensify the concerns we raise regarding acquisition of land-in-fee.

In Part IV, the heart of our discussion, we ask what happens if conservation easements are used when water is a primary or necessary element of the conservation benefit. We begin by examining the easiest case: municipal and land trust programs that use conservation easements to protect water quality. In these programs, the basic features of the conservation easement are relatively unaltered by its connection to water, and problems seem no more onerous than with most other conservation easements.

We address the harder issue of water quantity by examining experiences using less-than-fee interests to restrict water rights. Depression era flowage and post-World War II wetland easements acquired by the Bureau of Biological Survey (BBS) and the United States Fish and Wildlife Service (FWS) are instructive. The contemporary use of conservation easements that address water quality by restricting water rights is more problematic, particularly when the federal government’s enormous advantages in litigation are taken into account.

Part V offers some starting points for future discussion. We look at water trusts’ experience trying to integrate instream values and water rights into transactions. We then briefly discuss a recent Colorado statute aimed at strengthening conservation easements as a tool for protecting water on eased lands. We conclude that conservation easements that protect water quality by controlling land use are not obviously more vexed than the familiar conservation easement protecting open space, habitat, or historic sites. In fact, all of these goals frequently overlap handily. Trying to use conservation easements to address issues involving water rights - water as property - is more complicated. When easements attempt to tie water to land, particularly in ways that are not fully supported by state water, property, and easement law, the results can be disappointing. If the energetic - and still rapidly growing - land trust community is to play a positive role in water-related or water-dependent resource protection, practitioners must overcome the riparian mindset and directly address the interplay between land and water law. We conclude that addressing water quantity goals with conservation easements is both complex and risky. But conservation easements are the current tool of choice for good reason, and not using them at this point in history may leave even worse problems. The task remains to choose tools that effectively integrate land and water conservation.

Ben Barros

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Arguments in Clean Water Act Cases

The New York Times and Washington Post both have articles (here and here) on yesterday's arguments in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, two consolidated cases that go to the scope of federal authority to regulate wetlands under the Clean Water Act.  From the WaPo article:

All water flows downhill to the sea. But at what point does it enter the federal government's jurisdiction?

That was the question at the Supreme Court yesterday, as the justices heard arguments in the first major environmental case of the Roberts Court era -- a test of the Clean Water Act that could determine the scope of federal authority over the development of wetlands nationwide.

As enacted in 1972, the landmark environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that phrase to include not only large lakes and rivers, but also their smaller tributaries and wetlands near those tributaries.

The Bush administration, backed by environmental organizations and more than 30 state governments, says that any narrower interpretation would cripple the Clean Water Act. States alone could not do the job, the administration argues.

"It's a bit much to ask legislators in Minnesota and Wisconsin to restrict local development to protect water in Mississippi," Solicitor General Paul D. Clement told the court yesterday.

But property owners, backed by homebuilders, developers, farmers, ranchers and some water districts from the arid West, say that view would federalize every drop of water in the country, effectively putting Washington in control of development miles away from any recognizably navigable waters.

Ben Barros

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Oregon Supreme Court Upholds Measure 37

The Oregon Supreme Court today reversed a lower court judgment that had invalidated Measure 37, the ballot initiative that requires compensation to be paid to landowners when land-use regulations reduce property values.  The opinion is available here.  The Oregonian also has a story on the opinion.

I've linked to recent essays on Measure 37 here and here.  I've noted before that although I tend to be relatively pro-property rights on takings issues, I think Measure 37 is overbroad and a really bad idea.  But the voter anger behind Measure 37 is real, and combined with the post-Kelo backlash should cause land-use planners to question whether consistently sticking it to property owners is a good long-term strategy.  Oregon land-use planners probably wouldn't be facing potential disaster if they had made some modest accommodations to property owners' interests from the outset.

Ben Barros

UPDATE:  Todd Zywicki has a short post on the decision here.

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Legislative Response To Kelo

Today's NY Times has a story on the legislative response to Kelo.  An excerpt:

The issue is not whether governments can condemn private property to build a public amenity like a road, a school or a sewage treatment plant. That power is explicit in the takings clause of the Fifth Amendment, provided that "just compensation" is paid. The conflict arises over government actions to seize private homes or businesses as part of a redevelopment project that at least partly benefits a private party like a retail store, an apartment complex or a football stadium.

"It's open season on eminent domain," said Larry Morandi, a land-use specialist at the National Conference of State Legislatures. "Bills are being pushed by Democrats and Republicans, liberals and conservatives, and they're passing by huge margins."

Seldom has a Supreme Court decision sparked such an immediate legislative reaction, and one that scrambles the usual partisan lines. Condemnation of the ruling came from black lawmakers representing distressed urban districts, from suburbanites and from Western property-rights absolutists who rarely see eye to eye on anything. Lawmakers from Maine to California have introduced dozens of bills in reaction to the ruling, most of them saying that government should never seize private homes or businesses solely to benefit a private developer. . . .

In the New Jersey Legislature, Senator Nia H. Gill, a Democrat from Montclair who is chairwoman of the Commerce Committee, proposed a bill to outlaw the use of eminent domain to condemn residential property that is not completely run down to make room for a redevelopment project. The bill, which is pending, would require public hearings before any taking of private property to benefit a private project.

In New York, State Senator John A. DeFrancisco, a Republican, has proposed a measure similar to one in other states that would remove the right to exercise condemnation power from unelected bodies like an urban redevelopment authority or an industrial development agency.

Texas was one of the first states to act after the Kelo ruling, taking up the issue in a special legislative session that was supposed to focus solely on education. Gov. Rick Perry, a Republican, signed a bill on Sept. 1 that prohibits use of eminent domain to benefit a private party, with certain exceptions. Among those exceptions is the condemnation of homes to make way for a new stadium for the Dallas Cowboys. . . .

Scott G. Bullock of the Institute for Justice . . . said he expected municipal officials and redevelopment authorities to try to fight the wave of eminent domain legislation by offering cosmetic changes to existing law, for example by requiring an extra hearing or an economic impact statement. But he said that major changes were coming in how the takings power of government is used.

"Our opposition to eminent domain is not across the board," he said. "It has an important but limited role in government planning and the building of roads, parks and public buildings. What we oppose is eminent domain abuse for private development, and we are encouraging legislators to curtail it."

More neutral observers expressed concern that state officials, in their zeal to protect homeowners and small businesses, would handcuff local governments that are trying to revitalize dying cities and fill in blighted areas with projects that produce tax revenues and jobs.

"It's fair to say that many states are on the verge of seriously overreacting to the Kelo decision," said John D. Echeverria, executive director of the Georgetown Environmental Law and Policy Institute and an authority on land-use policy. "The danger is that some legislators are going to attempt to destroy what is a significant and sometimes painful but essential government power. The extremist position is a prescription for economic decline for many metropolitan areas around the county."

Overall, it is a pretty good story.  But John Echeverria being "more neutral" than Scott Bullock?  Sure, Echeverria might not be representing a party in a pending litigation on the issue, but he's as much an advocate as Bullock.

Ben Barros

View all takings posts.

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Brown on Conservation Easements

Carol Necole Brown (University of Alabama - School of Law) has posted A Time To Preserve: A Call For Formal Private-Party Rights In Perpetual Conservation Easements on SSRN.  Here's the abstract:

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors’ needs. My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated. More specifically, private parties should have standing to defend perpetual conservation easements. A common law property interest would be analogous to the third-party right of enforcement created by the Uniform Conservation Easement Act (“UCEA”) and codified by many states in their state statutes.

It is not my contention that either grantors, holders, or society in general should be bound by a perpetual conservation easement restriction forever. Some degree of flexibility to reflect changing societal needs is prudent. When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions, the interests of the larger society should be represented in the calculus. Conferring private-party standing would allow these interests to be represented.

My Article provides an efficiency and social justice critique. First, in Part II, I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements. I also discuss the close relationship between preservation and a strong private property regime. Second, in Part III, I discuss challenges to perpetual conservation easements, the doctrine of changed conditions, as well as the importance of private-party enforcement rights to the defense of conservation easements. Next, in Part IV, I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions, concluding that private parties should have a recognized, common law property interest in the conservation easement. Then, in Part V, I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system. Finally, in Part VI, I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions. I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership.

Ben Barros

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Weekly Top Ten

Nicole Garnett has changed the name of her paper in the Number 2 spot -- I kind of liked "What a Strange Place to Put a Church."

1. (375) Teaching Law Students About Sprawl, Michael Lewyn (George Washington University Law School)

2. (156) The Neglected Political Economy of Eminent Domain, Nicole Stelle Garnett (Notre Dame Law School)

3. (111) Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily L. Sherwin, (Cornell University - School of Law)

4. (67) Land, Law and Economic Development, Kenneth W. Dam (University of Chicago Law School)

5. (67) Property Metaphors and Kelo v. New London: Two Views of the Castle, Eduardo M. Penalver (Fordham University School of Law)

6. (63) New Urbanist Zoning for Dummies, Michael Lewyn (George Washington University Law School)

7. (60) Report Regarding the Pacific McGeorge Workshop on Globalizing the Law School Curriculum, Franklin A. Gevurtz, Linda E. Carter, Julie Davies, Brian K. Landsberg, Thomas O. Main, Michael P. Malloy, and John G. Sprankling (all of the University of the Pacific - McGeorge School of Law)

8. (49) Before Kelo, William A. Fischel (Dartmouth College - Department of Economics)

9. (47) Privatization: The Road to Democracy? Carol M. Rose (University of Arizona - James E. Rogers College of Law)

10. (46) Economic Development as Public Use: Why Justice Ryan's Poletown Dissent Provides a Better Way to Decide Kelo and Future Public Use Cases, Glen H. Sturtevant (George Mason University - School of Law)

Ben Barros

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Christie on Comparative Takings

Donna R. Christie (Florida State University - College of Law) has posted A Tale of Three Takings: Taking Analysis in Land Use Regulation in the United States, Australia and Canada on SSRN.  Here's the abstract:

The roots of the legal systems of the United States, Australia and Canada spring from a common English heritage in which protection of property is a prominent feature. Within these societies, when government expropriates private property, there is a presumption and, in some cases a constitutional compulsion to compensate the owner. In the 1920s, the United States Supreme Court deviated from the principle in American and English law that compensation is required only when a government acquires a legal interest in or takes possession of property. In Pennsylvania Coal Co. v. Mahon, the Supreme Court found that regulating the use of property, in that case Pennsylvania Coal's mineral rights, may also require compensation if the regulation goes too far. Claims of regulatory taking did not become common, however, until the 1970s when land use and environmental regulation became pervasive. Property rights advocates, not only in the United States but also in Australia and Canada, sought more extensive protection when these regulations seriously devalued or limited the use of land. By the 1990s, cases in both Australia and Canada seemed to follow the lead of Mahon by requiring compensation for land use regulations that seriously devalued mineral rights. This paper surveys and compares the development of the concept of regulatory taking in the United States, Australia and Canada, and discusses each country's struggle to balance important public interests reflected in land use and environment regulation with protection of private property and to develop a consistent theory of regulatory taking.

Ben Barros

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Favorite Property Cases To Teach

In a comment to my last post, Al Brophy had the very good idea of taking an informal survey of property profs' favorite cases to teach.  Mine are Popov v. Hayashi (which I do the first day of class, right after Pierson v. Post), Moore v. Regents and Kelo (which I covered last year before the S.Ct. decided the case).  Other candidates include two from Judge Kozinski:  Kremen v. Cohen and White v. Samsung.  If you have a favorite or favorites, please leave a comment.

Ben Barros

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Theory In First Year Property

So yesterday was ABA inspection day here in Harrisburg.  On Tuesdays, I teach both Bus Orgs and Property 2 (the second half of our full-year 6-credit property course).  Arthur Gaudio, the chair of the inspection team and a serious property expert, sat in on both classes.  In Property, I covered Moore v. Regents, which is probably the most fun case to teach in the first year Property curriculum.  You might ask why I was teaching Moore in the middle of Property 2, rather than at the beginning of the course where most texts (including D&K, which I use) put the case.  The answer is that this year, I've moved the entire theory unit to go right before nuisance, which is where the economic theory (Coase, Externalities, Demsetz, Property Rules v. Liability Rules, etc.) has the most impact.  It seems to be working well so far, in part because my students are better equipped to discuss theory issues after having had a semester of property law as background.

Ben Barros

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Heald and Smith on Genetic Modification and Social Cost

Paul J. Heald and James Charles Smith (both of the University of Georgia Law School) have posted The Problem of Social Cost in a Genetically Modified Age on SSRN.  Here's the abstract:

Genetically modified pollen drifting onto the field of a neighboring farm may cause substantial harm. If the bystanding farmer is growing non-genetically modified crops, she may suffer a pecuniary loss due to genetic 'pollution'. If the pollen is patented, the patentee may also claim harm stemming from the unauthorized distribution of its proprietary genetic material. Disputes arising from pollen drift present classic legal questions arising under the law of neighbors and classic economic questions broached most famously by Ronald Coase in his essay on The Problem of Social Cost. The application of the Coase Theorem and its most applicable corollary strongly suggest that: 1) balancing rules under nuisance law should be applied on a case-by-case basis to determine whether any particular genetic polluter should be liable for damages caused by pollen drift; and 2) most bystanding farmers should have viable defenses to patent infringement. Venerable legal principles applied to this new problem suggest the same two conclusions. Proving both propositions provides a textbook demonstration for the usefulness of economic analysis and solves a world-wide multi-billion dollar legal problem.

Ben Barros

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Dehring and Lind on Zoning and Covenant Interactions

Carolyn A. Dehring (University of Georgia - Department of Insurance, Legal Studies, Real Estate) and Melissa Lind (University of Texas at Arlington) have posted Residential Land Use Controls and Land Values: Zoning and Covenant Interactions on SSRN.  Here's the abstract:

Residential land use in urban areas can be constrained by zoning or restrictive covenants. When covenants and zoning exist simultaneously, covenants can facilitate an efficient allocation of high restriction and low restriction residential land. However, covenants cannot remedy deadweight loss resulting from zoning that over allocates land to high restriction use. We examine subdivided, vacant residential lot sales from two residential zones which differ in both minimum lot size and the minimum square feet of house. Our findings of a negative price effect from covenant use in the more restricted zone suggest that developers over-supply private restrictions.

Ben Barros

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Weekly Top Ten

Lots of new entries on our Weekly Top Ten list of the most-downloaded recent property papers on SSRN.

1. (364) Teaching Law Students About Sprawl, Michael Lewyn (George Washington University Law School)

2. (141) What a Strange Place to Put a Church: The Political Economy of 'Just Compensation', Nicole Stelle Garnett (Notre Dame Law School)

3. (102) Three Reasons Why Even Good Property Rights Cause Moral Anxiety, Emily L. Sherwin, (Cornell University - School of Law)

4. (77) Did Reform of Prudent Trust Investment Laws Change Trust Portfolio Allocation?, Max M. Schanzenbach & Robert H. Sitkoff (Northwestern University - School of Law and New York University School of Law)

5. (57) Land, Law and Economic Development, Kenneth W. Dam (University of Chicago Law School)

6. (56) Report Regarding the Pacific McGeorge Workshop on Globalizing the Law School Curriculum, Franklin A. Gevurtz, Linda E. Carter, Julie Davies, Brian K. Landsberg, Thomas O. Main, Michael P. Malloy, and John G. Sprankling (all of the University of the Pacific - McGeorge School of Law)

7. (55) New Urbanist Zoning for Dummies, Michael Lewyn (George Washington University Law School)

8. (42) Before Kelo, William A. Fischel (Dartmouth College - Department of Economics)

9. (30) Economic Development as Public Use: Why Justice Ryan's Poletown Dissent Provides a Better Way to Decide Kelo and Future Public Use Cases, Glen H. Sturtevant (George Mason University - School of Law)

10. (29) Thirst: A Short History of Drinking Water, James Salzman (Duke University - School of Law)

Ben Barros

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Homeowners Association Held to Constitutional Actor For Free Speech Purposes

The New Jersey Appellate Division has held that a common interest community homeowner's association is a constitutional actor and as a result is subject to the free speech provisions of the NJ constitution.  The court's opinion is available here.  From the ACLU of New Jersey's press release:

Newark - The Rutgers Constitutional Litigation Clinic and the American Civil Liberties Union of New Jersey praise an opinion handed down by the Superior Court Appellate Division today that provides new rights under the State Constitution for the more than one million New Jerseyans who reside in private communities governed by homeowners associations.

"For the first time anywhere in the United States, an appellate court has ruled that such private communities are 'constitutional actors' and must therefore respect their members' freedom of speech," explained Rutgers Law Professor Frank Askin, lead counsel in the case. "The court recognized that just like shopping malls are the new public square, these associations have become and act, for all practical purposes, like municipal entities unto themselves," he added.

At issue in the case, which involved the 10,000-resident community of Twin Rivers in East Windsor, were the right to post political signs on members lawns, equal access to the community newspaper run by the Board of Trustees, and equitable access to the community room for meetings for dissidents. The complaint raises claims under the free speech protections of the New Jersey Constitution.

The Unanimous Opinion of the three-judge appellate panel relied heavily upon earlier decisions of the New Jersey Supreme Court holding that privately owned and operated shopping malls were public forums under the State Constitution, and had to allow non-profit advocacy groups to gather petitions and distribute educational material on mall property.

Building on those cases, the Court held that private residential communities could no more deny free speech to its residents to discuss public issues than municipal governments. The Court wrote:

The manner and extent to which functions undertaken by community associations have supplanted the role that only towns or villages once played in our polity mirrors the manner and extent to which regional shopping centers have become the functional equivalents of downtown business districts . . .

It follows 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. 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.

The case had initially been dismissed by the Superior Court in Trenton. The Appellate Division, in overturning that decision, has now remanded the case back to the lower court to apply the new constitutional standard to the issues involved in Twin Rivers. The appeals court did uphold the dismissal of the Plaintiffs' complaint against the weighted voting system employed by the Twin Rivers Homeowner Association to elect its Board of trustees.

The case was handled by the Rutgers Law School Constitutional Litigation Clinic on behalf of the American Civil Liberties Union of New Jersey under the supervision of Rutgers Law Professor Frank Askin, who was assisted by dozens of Rutgers' law students during the 5-year course of the litigation. The case was originally filed in December 2000. The complaint raised claims solely under the New Jersey Constitution and state statutes. Under the United States Constitution, such communities are currently considered solely private property and their residents have no constitutional rights.

Professor Askin described the case as a national landmark, and said that homeowners groups across the country have anxiously awaited the outcome, and would now try to convince other states' courts to emulate New Jersey.

Ben Barros

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