929 A.2d 1060 (N.J. 2007)
In November 1969 the Twin Rivers Community Trust was created by indenture to own, manage, operate, and maintain the common property of Twin Rivers, a planned unit development in East Windsor, New Jersey, that covers approximately one square mile and houses roughly 10,000 residents in condominiums, townhouses, single-family homes, apartments, and commercial buildings.1 The Twin Rivers Homeowners’ Association serves as trustee of the Trust, adopts and enforces rules for use of common areas, maintains roads and provides services such as snow removal and trash collection, and finances operations through mandatory assessments levied on all property owners, who automatically become Association members upon purchase.2
Prior to the commencement of this litigation, residents of Twin Rivers formed the Committee for a Better Twin Rivers to influence the manner of community governance.3 The Committee and three individual residents filed a nine-count complaint against the Association, its president Scott Pohl, and later the Trust, challenging three policies in particular: the sign-posting rules, the community-room rental terms, and access to the monthly newspaper Twin Rivers Today.4
The Association’s sign policy permitted residents to post one sign per lawn in the flower beds no more than three feet from the residence and one sign per window. The policy also prohibited signs on utility poles and natural features.5 The community-room policy, as amended during litigation, imposed a uniform rental fee of $165, a $250 refundable security deposit, and a requirement that renters obtain insurance naming the Association as an insured.6 The newspaper Today was delivered to all residents but not the general public. Its editorial committee selected all content.7
The Association moved for summary judgment and the plaintiffs cross-moved; the trial court granted the Association summary judgment on the sign and newspaper claims while ordering modification of the community-room regulations to cure vagueness.8 Plaintiffs appealed. The Appellate Division reversed, holding the Association subject to state constitutional standards on all three claims.9 The Supreme Court granted the Association’s petition for certification.10
Whether the rules and regulations of the Twin Rivers Homeowners’ Association governing the posting of signs, the use of the community room, and access to its newsletter are subject to the free speech and assembly guarantees of the New Jersey Constitution?11
Under the Schmid/Coalition test, courts must consider (1) the nature, purposes, and primary use of such private property, generally, its “normal” use, (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property, and then balance the expressional rights against the private property interests.12
No. Twin Rivers is a private residential community whose primary use is for private purposes. The Association has not invited the public to use its property, as Trust-owned property and facilities are for the exclusive use of Twin Rivers residents and their invited guests. The plaintiffs’ expressional activities are not unreasonably restricted because the relationship is contractual and alternative means of expression exist, such as walking through the neighborhood, distributing newsletters, and participating in the elective process.13
The Association’s rules and regulations do not violate the free speech and assembly guarantees of the New Jersey Constitution.14
Whether the Association’s sign policy limiting residents to one lawn sign and one window sign violates residents’ rights of free expression?15
Restrictions on expressional activities on private property must not constitute an untoward interference with or confiscatory restriction upon the reasonable use of the property, and must be reasonable concerning the time, place, and manner.16
No. The sign policy permits residents to post a single sign in each window and signs in the flower beds adjacent to the homes. Those limitations are clearly not an untoward interference with or a confiscatory restriction on the reasonable use by plaintiffs on their property.17
The Association’s sign policy does not violate residents’ rights of free expression.18
Whether the Association’s community room rental policy and the editorial control of its newsletter Twin Rivers Today violate residents’ rights of free expression and equal access?19
The Schmid/Coalition balancing requires that restrictions be reasonable and not unreasonably restrict free speech rights, with consideration of alternative means of expression.20
No. The community room policy imposes a uniform rental fee of $165 and a refundable security deposit of $250 along with insurance requirements to cover maintenance costs. The newspaper is subject to editorial control by its committee. Plaintiffs have other means of expression including distributing their own newsletter and participating in Association governance.21
The Association’s community room rental policy and the editorial control of its newsletter Twin Rivers Today do not violate residents’ rights of free expression and equal access.22